source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    ARKANSAS STATE MEDICAL BOARD v. Dr. J. Byron GRIMMETT
    5-5461
    463 S. W. 2d 662
    Opinion delivered March 1, 1971

      Warren & Bullion, for appellant.

      John M. Fincher, for appellee.
   Carleton Harris, Chief Justice.

This appeal comes from the action of the Pulaski County Circuit Court in reversing and setting aside an order of the Arkansas State Medical Board which suspended the license of J. Byron Grimmett a physician of Waldo, to practice medicine. Grimmett had been charged with acts of unprofessional conduct, including charges that he aided and abetted an unlicensed person to practice medicine, violated the laws governing the possession and distribution of amphetamines and barbiturates, and laws relating to the possession and distribution of narcotic drugs. Grimmett, appellee herein, was also charged with failing to possess the moral character requisite for the proper practice of medicine. After a lengthy hearing, the board found appellee guilty of the acts with which he was charged, and suspended his license to practice. The following provision concludes the order:

“Grimmett may, at the next regular meeting of the Board, present any relevant evidence to the Board which he believes may cause the Board to reconsider its action and reinstate his license. This hearing should not be closed at this time, but should be continued subject to the request of Grimmett or his attorney to appear before a subsequent regular meeting of the Board and present other evidence.”

A Petition for Review was filed in Pulaski Circuit Court. After reviewing the evidence, that court made inter alia the following findings pertinent on this appeal:

“3. That a cursory weighing of the proof indicates that there was substantial evidence to warrant the action of the Board in suspending petitioner’s license but a careful and considered examination- of the evidence convinces that the Board should have warned and admonished the petitioner in the areas upon which the Board predicted its order; that such warning and admonition was justified and would have been proper; and that such warning and admonition would have been sufficient instead of the harsh, severe and drastic action taken which deprived the community in which he practiced of acutely needed medical services. * * *

5. That Ark. Stats. 5-713 provides that a reviewing court can stay enforcement of the Board’s order and' can reverse the Board’s action on such terms as may be just.”

The court then found that it would be unjust to continue the suspension of appellee’s license to practice medicine and surgery while the issues are being litigated, and accordingly reversed the order of the Arkansas State Medical Board, restoring Dr. Grimmett to all the rights and privileges of a duly licensed physician, subject however to the following provision.

“It is further CONSIDERED, ORDERED AND ADJUDGED that said restoration of the right to practice medicine shall be subject to the following conditions: That Dr. Grimmett shall not maintain any stock of any drug the use and possession of which is subject to regulation under the Arkansas Uniform Narcotic Drug Act, the Arkansas Drug Abuse Control Act, nor shall he maintain any stock of drugs which are designated as ‘legend’ drugs under the Federal Food Drug and Cosmetic Act. This condition shall not be interpreted to prevent Dr. Grimmett from maintaining a supply of emergency drugs for his personal office use provided said supply does not exceed the amount of emergency supplies normally stocked by non-dispensing physicians.”

From the order so entered, the Arkansas State Medical Board brings this appeal. It is first contended that there was substantial evidence to support the order of the board and the court erred in reversing that order.

In Bockman v. Ark. State Medical Board, 229 Ark. 143, 313 S. W. 2d 826, this court said:

“The appellant contends that the board’s findings of fact are not sustained by any substantial competent evidence. Upon this point it is our rule in proceedings like this one that the board’s action will not be set aside on certiorari unless there is an entire absence of substantial evidence to sustain the findings, in which case the board’s action is deemed to be arbitrary, [citing ■ cases]”

In McCain, Labor Commissioner v. Collins, 204 Ark. 521, 164 S. W. 2d 448, a case involving misconduct of a Supervisor of the Security Division of the State Labor Department, this court quoted from Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041, as follows:

“We are not called on to decide primarily whether or not the decision of the board was correct. The lawmakers have placed that authority in the board of control, and it would be clearly an encroachment by the courts upon the authority of another department of government to undertake to substitute the judgment of the judges for that of the members of the tribunal vested with authority to manage the institutions of the state and to appoint and remove those who are placed in charge. When all the testimony in the case is considered and viewed in the strongest light to which it is susceptible in support of the board’s findings, it cannot be said that there is an entire absence of evidence of a substantial nature tending to establish the charge of inattention and neglect of duty on the part of the superintendent. This being true, it becomes the duty of the courts, upon well-settled principles of law, to leave undisturbed the action of the tribunal especially created by the lawmakers to pass upon those questions. Any other view would make the board of control a mere conduit through which a decision on the removal of an unfaithful or inefficient superintendent would be passed up to the courts instead of leaving the matter where the lawmakers have placed it, in the hands of the board.”

That language is likewise apropos in the case now before us. Accordingly, let us examine the evidence to determine if it is of a substantial nature.

Dr. Grimmett was charged with a violation of Ark. Stat. Ann. § 72-613 (Supp. 1969), it being asserted that he was guilty of aiding and abetting Pat Kimbell, an unlicensed person, to practice medicine. Two persons, in addition to Dr. Grimmett, testified to facts pertinent to this charge. Sgt. Bruce Atkinson, Supervisor of the Narcotic and Dangerous Drug Bureau of Arkansas State Police, testified that he visited the Grimmett Clinic at Waldo on three occasions. On August 8, 1969, he went there and talked with Mrs. Pat Kimbell, who appeared to be in charge. The sergeant, who used the name of Dale Henry Attwood, told her that he was from out-of-state and desired to purchase some diet pills. He said he kidded with Mrs. Kimbell about what he wanted diet pills for, and she said that the doctor was not there, but she could handle anything he wanted; that she was taking care of the medicine and pills and that the doctor would sign a prescription later. The witness stated that she first took his blood pressure, saying that the doctor had so authorized her; that the reading was 160 over 100, and Mrs. Kimbell stated that this was too high to permit him to purchase amphetamines. He replied that he had been drunk at a party and Mrs. Kimbell said that would account for it, and went ahead and made the sale to him. He purchased a bottle containing thirty pills which were later identified as Dexamyl spansules. On leaving the clinic, he sealed the drugs and marked them as evidence. The pills were turned over to the Arkansas Food and Drug Laboratory, which is customarily used by the State Police for analysis. A subsequent report by two chemists with Arkansas Food and Drug found the pills to be amphetamines and amobarbitals. Sgt. Atkinson testified that he paid $7.11 to Mrs. Kimbell, and received a receipt for that amount.

The witness stated that on December 3, 1969, he made another purchase from a lady on duty, asking for a refill of the prescription of August 8. He did not have the bottle nor a signed receipt. The lady filled that prescription, and he then asked her for some quarter, or half, grain codeine pills for headaches. She also filled that prescription, stated that Dr. Grimmett would sign the prescription pad at a later date. Sgt. Atkinson received twenty-four codeine pills, and paid $12.30, apparently for both prescriptions. He said these pills were also identified by the above mentioned laboratory as Dexamyl amphetamines and codeine phosphate.

-Atkinson testified that on January 27, 1970, he went back to the clinic, Mrs. Kimbell being in charge, and she again made a sale of amphetamines to him. He requested additional codeine tables for headaches and “hang over” and she also furnished that.

Woodrow Little, an Investigator for the Arkansas State Medical Board, also, on this occasion, made two purchases, in the presence of Sgt. Atkinson, these drugs later being identified by the chemists as Overdrin LÁ, a controlled drug.

Atkinson testified that Dr. Grimmitt had never examined him, and that on the night of the arrest of Grimmett, made on January 27, the doctor admitted that he had never before seen Atkinson. Little also testified that he was never examined by Grimmett, and had never been to the doctor as a patient. Little’s testimony reveals that he had been observing Grimmett’s Clinic for about two years, and had been there seven times posing as a detail man. Little said that he would sit in the clinic and would observe people bringing in empty bottles and asking for pills and would then observe the ladies working in the clinic delivering pills to customers. Grimmett testified that he had examined Atkinson “some time last summer” when Atkinson came in as a patient, and that he had prescribed Dexamyl spansules for him. He denied that he had admitted to Atkinson on the occasion of his arrest that he had never seen the sergeant before. He also testified that Little had never bought any drugs from his clinic to his knowledge.

A handwriting expert testified that the ledger page for August 8, 1969, reflected that Pat Kimbell had made an entry reflecting a sale to Dale Attwood, and that entries immediately under this particular entry were made by Dr. Grimmett. Similar testimony was' offered concerning other transactions, and it is difficult to believe that the doctor would not have noticed the entry made by Mrs. Kimbell when making his own entries.

Ark. Stat. Ann. § 72-604 (Repl. 1957) defines the practice of medicine as follows:

“(1) The term ‘practice of medicine’ shall mean: (a) holding out one’s self to the public within this state as being able to diagnose, treat, prescribe for, palliate or prevent any human disease, ailment, injury, deformity, or physical or mental condition, .whether by the use of drugs, surgery, manipulation, electricity, or any physical, mechanical or other means whatsoever; (b) suggesting, recommending, prescribing or administering any form of treatment, operation or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever;***”

Appellee says there is no evidence that Mrs. Kim-bell performed the acts heretofore related with the intention to receive “any fee, gift, or compensation”. The short answer to this contention is that the testimony reflects that she did receive compensation for the drugs furnished Atkinson and Little. It is also argued that it is not shown that Mrs. Kimbell was not licensed as a nurse. Mrs. Kimbell did not testify, and while, if she were licensed as a nurse, it would appear that some mention of that fact would have been made during the course of the evidence, her status or lack of status as a nurse is immaterial to the disposition of the matter before us. Ark. Stat. Ann. § 72-729 (Supp. 1969), subsection d, states:

“The practice of professional nursing means the performance for compensation of any acts in the observation, care and counsel of the ill, injured or infirm or in the maintenance of health or prevention of illness of others, or in the supervision and teaching of other personnel, or the administration of medications and treatments, as prescribed by a licensed physician, [Our emphasis] or dentist; requiring substantial specialized judgment and skill and based on knowledge and application of the principles of biological, physical and social science. The foregoing shall not be deemed to include acts of diagnosis or prescription of therapeutic or corrective measures. [Our emphasis]”

Mrs. Kimbell’s acts went beyond nursing care. Let it be remembered that the testimony reflects that she took Sgt. Atkinson’s blood pressure, and told him that it was too high for him to purchase amphetamines, but after being told that he had been drunk at a party, agreed that that would account for it, and made the sale. Further, when Atkinson asked her for codeine pills for relief of his headaches, she furnished the pills to him, taking pay. As previously stated, there is evidence that Dr. Grimmett was aware that employees were making sales. The facts testified about constituted substantial evidence that Dr. Grimmett was aiding and abetting an unlicensed person to practice medicine.

Ark. Stat. Ann. § 72-613 (Supp. 1969) provides that the board may revoke or suspend a license to practice medicine for inter alia violation of the laws of the United States or the State regulating the possession, distribution or use of narcotic drugs, or drugs, the sale and distribution of which is regulated by the Arkansas Barbiturate and Benzedrine Law.

The Arkansas Drug Abuse Control Act, Ark. Stat. Ann. § 82-2101 et seq (Supp. 1969) defines various types of drugs. Among other definitions appear the following:

"(d) The term ‘depressant or stimulant drug’ means:
(1) Any drug which contains any quantity of (A) barbituric acid or any of the salts of barbituric acid;* * *
(2) Any drug which contains any quantity of (A) amphetamine or any of its optical isomers; (B) any salt of amphetamine or any salt of an optical isomer of amphetamine; * * * ”

Under authority of a court order, Grimmett was arrested and the premises searched for drugs. Officer Atkinson, Mr. Little, Kenneth (Phillip) Melancon, employed by the Bureau of Narcotics and Dangerous Drugs, and William H. Hogue, an employee of the Food and Drug Division of the Arkansas State Health Department, all participated in the search. An attorney for Grimmett was also present while the stock of drugs was being inventoried. The officers found drugs in almost every room in the building, locating them in all types of containers, including coffee cans and orange juice bottles. They were not under lock and key. Apparently, labels which had been taken from samples of various drugs which the doctor had received, had been taken from the samples and placed on whatever container was used as a matter of identifying the particular drugs in that container. The labels taken from the samples would show that a few doses had been included in the sample, but some of the containers held several thousand pills or tablets. Hogue said that many of these were controlled drugs. The inventory revealed a total of 1,812,-97 6 dosages of drugs at the time Grimmett was arrested. Mr. Melancon testified that Grimmett had over 300,000 dosages of Fiorinal, which is a controlled drug containing barbiturates. Sgt. Atkinson testified that Grimmett himself stated upon being arrested that he (Grimmett) doubted if he could come within a million of the actual drugs on hand due to the fact that they were physician’s samples. The fact that tabs from the samples had been placed on containers holding hundreds or thousands of pills is, of course, a clear indication that these sample drugs were being sold. Melancon testified that Grimmett made the statement that most of his money came from the dispensing practice and if he didn’t have his dispensing practice, he didn’t want to operate. Under the provisions of Art. Stat. Ann. § 82-2107 (Supp. 1969), every person engaged in manufacturing, compounding, processing, selling, delivering or otherwise disposing of any depressant or stimulant drug shall, upon the effective date of the Act (June 29, 1967), prepare a complete and accurate record of all stocks of each drug on hand and shall keep such record for three years. Mr. Hogue testified that Grimmett told him that he had not made this inventory of amphetamines and barbiturates in 1967, and the testimony reflected that there were as many as 3000 controlled drugs in some of the containers found in the clinic. The testimony is somewhat confusing in that Sgt. Atkinson stated that Grimmett later produced an inventory; however he stated that this inventory “carried prices but no quantities”. Be that as it may, it is very clear that whatever inventory there might have been did not come close to covering all the drugs in the possession of Grimmett.

Ark. Stat. Ann. § 82-1005 (Supp. 1969) requires that a written order for any narcotic drug shall be signed in quadruplicate by the person giving the order, or his duly authorized agent. The section provides what shall be done with these copies, including a requirement that one should be sent to the State Health officer not later than the 10th of the month following the month during which the order was made. In event the order is filled, there is a further requirement that each party shall preserve his copy of the order for a period of two years in such a way for it to be readily accessible for inspection by any public officer or employee engaged in the enforcement of the act. Mr. Hogue testified that Grimmett did not have such a complete and accurate record of drugs received by him. “Some of his order forms that he has to mail in when he places an order for narcotic drugs were missing. We have not received all order forms on orders he had placed”. It would appear from this testimony that Hogue checked copies of drúg orders found in Grimmett’s office with files at the State Health Department, thus making his determination that copies had not been sent to the Health Department. Appellee makes a vigorous attack upon this evidence,* *** and we agree that Mr. Hogue could have been muck more definite and specific in his testimony, explaining exactly how he knew that this provision of the law had not been complied with, and offering into evidence whatever exhibits supported his testimony.

Ark. Stat. Ann. § 82-1009 (Supp. 1969), provides:

“Every physician, dentist, veterinarian, or other person who is authorized to administer or professionally use narcotic drugs, shall keep a record of such drugs received by him, and a record of all such drugs administered, dispensed, or professionally used by him otherwise than by prescription. * * *”

Mr. Hogue testified that he could not find complete records of the dispensing of drugs. Appellee complains that Hogue did not even bother to produce “an inaccurate and incomplete record for the inspection of the Board”. Of course, Mr. Hogue’s testimony was that he could not find a complete record and, after all, if such a record existed, only Grimmett, or those to whom he had confided, would know where to locate such a record. Certainly, though the over-all burden was on the complainants to establish their case, Dr. Grimmett had the opportunity to present records of compliance with the law, and it would seem that one so charged would very quickly do so—if such records existed. He did testify briefly, though he reserved the right to claim the privilege granted under the Fifth Amendment to the Federal Constitution, and actually did invoke the protection of that Amendment at one point.

Witnesses Hogue, Atkinson, and Melancon all testified that the cabinets containing the drugs were not locked as required, some narcotics even being on the shelves. Appellee says that the Statute (Ark. Stat. Ann. § 82-1025 [Supp. 1969]), which requires that narcotic drugs be kept in a safe or other receptacle equipped with a lock sufficient to secure such narcotic drugs against theft, only applies to a licensed pharmacist. There is no necessity for us to go into the requirements of the state’s statutes relative to this subject for it has been previously pointed out in this opinion that subsection (5) of Ark. Stat. Ann. § 72-613 provides that violation of the laws of the United States, as well as state laws, regulating possession or use of narcotic drugs, constitutes “unprofessional conduct”, and is a ground for revocation of a medical license. 26 CFR 151.471, under the topic, “Safeguarding of Narcotics” states that “Narcotic drugs and preparations shall at all times be properly safeguarded and securely kept (our emphasis) where they will be available for inspection by properly authorized officers, agents, and employees of the Treasury Department and the Department of Justice”.

The testimony makes clear that the drugs under discussion were neither “safeguarded” nor “securely kept”.

In addition to the violations heretofore discussed, the board found Grimmett guilty of failing to possess the moral character requisite for the proper practice of medicine. This finding was based upon the testimony of three young women, all of whom testified that they had been patients of Dr. Grimmett; that he had prescribed for them various drugs, and had made advances to them. Two of the women testified that they had sexual relations with Dr. Grimmett, the third testifying that the doctor had endeavored to have relations with her. All testified that he consistently prescribed different drugs and one was finally committed for treatment as a drug addict. Dr. Grimmett admitted sexual relations with one of these women, although he stated that he did not recall whether this occurred while she was a patient or after she was a patient, but he denied the testimony of the other two. Admittedly, he also had fathered an illegitimate child by still another woman, while married and living with his wife.

It is strenuously argued by appellee that, though there is a requirement that one possess good moral character before being licensed to practice, there is no statutory authority for the board to revoke a license because of immorality.

This opinion is already lengthy, and the facts previously enumerated (disregarding the charge of immorality) are, we think, clearly sufficient to sustain the findings and order of the board. Accordingly, no good point would be served by discussing this particular charge.

Some dozen witnesses, residents of the area in which Dr. Grimmett has practiced, testified in his behalf, stating that their association with the doctor as patients had been pleasant and without any flaw; some said that they had tried to get drugs refilled but were unable to do so. Several mentioned various courtesies that had been extended, and one related that when called to the patient’s home, the doctor took his shoes off in order to keep from tracking up the rug. Other persons said that the people in the community needed his services. Of course, in a case of this nature, this is what might be termed “negative” evidence. For the fact that he did not act in the manner, heretofore discussed, with these particular patients, in nowise disproves the evidence already mentioned; the witnesses, after all, were only saying that no violations occurred during their contacts with the doctor.

We think the evidence relating to the violations of drug laws was very convincing, and apparently the trial court was likewise of the view that, at least, the testimony relating to the drugs was true, for in its judgment providing that Dr. Grimmett could continue to practice, a proviso was inserted that the doctor could not maintain any stock of any drug that was subject to regulations under the Arkansas Uniform Narcotic Drug Act and the Arkansas Drug Abuse Control Act; nor legend drugs under the Federal Food and Cosmetology Act (except for a supply of emergency drugs for personal office use not exceeding a supply normally stocked by a non-dispensing physician).

We do not agree with the trial court that the action taken by the board was “harsh”, “severe”, or “drastic”; in fact, from the evidence introduced, and entirely aside from the question of possession the requisite moral character to practice, we are of the opinion that the board’s order was not only justified, but rather restrained. Dr. Grimmett’s license was not revoked, and the suspension was not for a particular period of time. To the contrary, Grimmett was given the opportunity to present, at the next regular meeting of the board, any relevant evidence which might cause the board to reconsider its action to reinstate his license. The order of the board specifically provided that the hearing was not closed, but should be continued, subject to the request of Grimmett or his attorney to appear and present other evidence. Thus, appellee still has the right, if he so desires, and can furnish additional evidence of extenuating circumstances, to take this step.

There was substantial evidence to support the action of the Board, and it follows from what was said in McCain, Labor Commissioner v. Collins supra that the Court erred in entering the judgment appealed from.

Accordingly, it is the order of this Court that the judgment of the Pulaski County Circuit Court is reversed, and the cause is remanded with directions to reinstate the order of the board.

It is so ordered.

       This case dealt with an action instituted by the Board of Control of State Charitable Institutions against the Superintendent of the State Hospital for Nervous Diseases, seeking his ouster for alleged misconduct.

       He never went when Grimmett was present.

       From the testimony of Mr. Hogue: "A number of these drugs have monograms on the tabs from the manufacturer and a number of these bottles contained a small label for instance taken from a physicians sample package the label says ‘four tabs or four caps of physicians samples’ and this small label would be taken and put onto a container of a gallon coffee can or half gallon can or orange juice bottle or container other than the original package. This would constitute mislabeling and misbranding for a number of these sample packages. * * * These small labels have on each label each physicians sample package ‘control or lot number of that particular drug’. As you know, a thousand, two thousand, fifty or what not broken down from packages that originally contained four or six samples constitute a number of different lot or control numbers over a period of time.”

       This figure was taken from the brief. A tabulation compiled on an adding machine, from exhibits in the record, reveals 1,834,052.

       From appellee’s brief: “This is not substantial competent evidence because (1) all we have is his naked word, (2) there is no evidence to show how these records are received, filed, stored, etc., by the Health Dept, so the conclusion that Mr. Hogue’s Dept, lost tbe records could be as easily drawn as the conclusion that Dr. Grimmett did not mail them in as required, (3) ‘some of them were missing’ is so vague and indefinite no conclusion can be drawn, (4) the witness did not say which ones are missing, so appellee had no opportunity to make specific rebuttals to Mr. Hogue’s assertions, (5) the records that had been sent were not produced at the hearing so Appellee could not ascertain by inspection which, if any, of the records were missing, and for that matter, (6) if they are missing, how does Mr. Hogue KNOW they are missing. No foundation whatever has been laid in the record that could lend credibility to the testimony on this point.”


author: George Rose Smith, Justice.

text:
    Harry L. PARKIN et al v. Walter M. DAY et al
    5-5477
    463 S. W. 2d 656
    Opinion delivered March 1, 1971

      Spitzberg, Mitchell if Hays and Smith, Williams, Friday if Bowen, for appellant.

      Joe Purcell and Lyle Williams, for appellees.
   George Rose Smith, Justice.

By Act 100 of 1967 the General Assembly authorized state agencies to purchase duplicating equipment, which is used for making multiple copies of documents, forms, and other papers. Ark. Stat. Ann. §§ 14-354 to -356 (Repl. 1968). Under the authority of the act the appellees, who constitute the Legislative Joint Auditing Committee, decided to buy a Multilith Duplicator, made by the Addressograph Multigraph Corporation. The Auditor of State, relying upon opinions delivered by the Attorney General from time to time, refused to approve the purchase, on the ground that the machine would produce “printing,” contracts for which must be let to the lowest responsible bidder under Article 19, § 15, of the Constitution of 1874.

The appellees then brought this suit for a declaratory judgment with respect to the validity of Act 100 insofar as it authorizes the purchase of a machine such as a Multilith Duplicator. Interventions were filed by the appellants, who are printers or representatives of the printing industry. After a trial at which many witnesses were heard, the chancellor concluded that Act 100 is valid and that the proposed purchase is not forbidden by the Constitution. The correctness of those conclusions is the issue on appeal.

A Multilith Duplicator appears, from the testimony and exhibits in the record, to be a machine about four feet long, two feet wide, and four feet high. The operator inserts the original paper that is to be duplicated. By a series of processes that are largely automatic in the sense that great skill on the part of the operator is not required, the machine turns out duplicates at speeds up to 250 copies a minute. The machine first makes a “master,” which is a reverse-reading (mirror image) copy of the sheet to be duplicated. The “master” may be imprinted on paper if only a few copies are needed or on aluminum if a great many copies are required. The machine produces copies by the application of ink to the surface of the “master,” which in turn is applied to blank pieces of paper in much the same way as a lithographic printing press produces printed matter. A more elaborate model of the Multilith Duplicator is capable of turning out copies that have written or printed matter on both' sides of the paper.

The emergency clause of Act 100 contains a legislative finding that the use of modern duplicating equipment will save thousands of dollars in state printing costs. There is testimony that the use of such equipment by the Revenue Department and by the Joint Auditing Committee may save as much as $20,000 a year. Although that testimony is not entirely undisputed, it is fair to say from the proof that the legislature was justified in finding that the use of modern equipment can effect a saving of tax dollars.

The constitutional provision in question was manifestly designed to save money by requiring that certain contracts be let by competitive bidding. The pertinent sentence in Article 19, § 1.5, reads as follows:

All stationery, printing, paper, fuel, for the use of the General Assembly and other departments of government, shall be furnished and the'printing, binding and distributing of the laws, journals, department reports and all other printing and binding, and the repairing and furnishing the halls and rooms used for the meetings of the General Assembly and its committees, shall be performed under contract to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law.

In Section 1 of Act 100 the General Assembly recognized the existence of a constitutional question, in this language:

In the passage of this act, the General Assembly is cognizant of the requirements of Section 15 of Article 19 of the Constitution of the State of Arkansas that all printing required by the General Assembly and state agencies and departments shall be performed under contract to be given to the lowest responsible bidder, with such contract to be approved by the Governor, Auditor and Treasurer. The General Assembly is further aware of the fact that improved technology has made available various types of duplicating equipment and processes which were not in existence at the time of the adoption of the Constitution, and which are not printing processes for which contracts were to be let pursuant to the provisions of Section 15 of Article 19 of the Constitution. It is, therefore, the purpose and intent of this act to define such duplieating equipment and processes to the extent that the same may be used by state agencies, yet preserving the requirements that all printing needs of state agencies let under contract shall be as provided in the Constitution. [Ark. Stat. Ann. § 14-354.]

In the second section of Act 100 the General Assembly set forth a comprehensive description of duplicating equipment that may be purchased and used by state agencies. Section 14-355.

At the trial the various parties to the case attempted to show by knowledgeable witnesses what is printing and what is not printing. The only conclusion to be drawn with confidence from the record is that it is impossible to arrive at a precise definition of printing. Among the factors stressed by one or another of the witnesses were: (a) Whether the particular process involves the production of an original or the mere duplicating of an existing original; (b) whether the work is done on the premises or outside in a commercial printing establishment; (c) the comparative size of the equipment being used; (d) the, degree of skill needed to operate the equipment; (e) whether lithography is involved; (f) whether an offset process is involved; (g) whether photography is involved; (h) the distinction between the use of. ink and the use of powder, as in xerography; (i) the number of copies being made; and (j) whether the particular process or machine has been generally accepted and used by the printing industry.

The proof clearly establishes what several of the wimesses stated in substance: Printing and the various modern methods of duplicating all have some characteristics in common and some points at which they tend to overlap one another. In between the two extremes represented by commercial printing on the one hand and the simpler forms of duplicating on the other, there is a middle ground occupied by machines and processes that cannot be classified one way or the other with absolute assurance.

In this court, both in the briefs and in the oral arguments, the appellants have put their principal emphasis upon factor (j)—the usages within the printing trade itself—as the most reliable method of distinguishing printing from duplicating. By using that test the appellants profess to have no objection to the use by state agencies of the simpler methods of making copies, such as typewriting with carbon paper, stenciling, and mimeographing, or to the use of certain duplicating equipment identified by brand names, such as Ditto, Thermofax, Verifax, and Xerox.

The weight of the evidence does not support the appellants’ contention that printing is properly defined as the product of the processes and machines that have been generally accepted and used by the printing in? dustry. That definition appears to be merely a self-serving conclusion expressed by interested witnesses who are engaged in the printing business. To accept that point of view would mean in reality that the effect of the constitutional provision in question would be not so much to effect economies in state government as to establish a monopoly in the field of modern duplicating equipment, regardless of the comparative expense to the state.

Moreover, the evidence does not show that the Multilith Duplicator has been accepted and used exclusively or even predominantly by the printing industry. To the contrary, the record shows that 85% of all Multilith Duplicators have been purchased for in-office or on-premises use by private businesses or governmental agencies. Some of the remaining 15% of sales have been to printers, but the same thing could be said of typewriters, mimeographs, and other office machines that are useful in large business establishments.

We conclude from the preponderance of the testimony that modern on-premises duplicating equipment comprises a separate category that came into existence after the adoption of the Constitution of 1874. Such machines have some aspects and characteristics in common with printing presses, but it does not follow that duplicating equipment produces "printing” as that term was understood in 1874 or as it is understood today. To the contrary, it is the essential and intended suitability of duplicating machines to in-office use that is their distinguishing quality. We are unwilling to say that the General Assembly exceeded its constitutional authority in permitting state agencies to use the same type of modern office machinery that is customarily used in business establishments throughout the country.

Affirmed.

Fogleman, J., not participating.


author: George Rose Smith, Justice. J. Fred Jones, Justice,

text:
    SIMMONS LUMBER CO. et al v. Anthony ZEILER, Guardian et al
    5-5485
    463 S. W. 2d 659
    Opinion delivered March 1, 1971

      Daily, West, Core & Coffman, for appellants.

      Wright, Lindsey ir Jennings, for appellees
   George Rose Smith, Justice.

This is a death claim filed under the workmen’s compensation law by the widow and minor children of Opal Lee Zeiler, who was accidentally killed in the course of his employment on March 27, 1967. At the time of his death Zeiler was a sawyer cutting timber for his employer, Wendell Nelms, who in turn was a logger working under a contract with the appellant Simmons Lumber Company. The principal question for the commission was whether the primary liability for the Zeiler death claim rested upon Simmons and its insurance carrier or upon Nelms and his insurance carrier. The commission put the responsibility upon Simmons and its insurer, upon a finding of fact that Simmons had orally agreed to provide workmen’s compensation insurance coverage for Nelms and his employees. This appeal is from a circuit court judgment sustaining the commission’s decision. We hold that the judgment should be affirmed.

Nelms testified that for some time prior to March, 1967, he had been cutting and hauling timber for Nebo Lumber Company at a contract price of $29 per thousand feet. Nelms was then carrying workmen’s compensation insurance upon his own employees, with Reliance Insurance Company. About two weeks before Zeiler’s death Nelms, with his men, began working for Simmons. Nelms testified that he and Mr. Simmons agreed upon a contract price of only $28 a thousand, instead of $29, because Simmons was to carry the compensation insurance. This is Nelms’s testimony upon that point:

[Simmons] said, well, you ought to be able to knock off a dollar per thousand feet and us carry the insurance on it. I said, yeah, that sounds about right. It’d take that to pay the insurance. He said, well, now in the meanwhile we request you to carry liability on your truck, and we’ll carry workmen’s compensation on your crew, and that’s all there was to it.

The appellants argue that the Simmons-Nelms agreement for compensation insurance coverage was not valid, principally because Simmons would not have agreed to provide the coverage if he had known that Nelms himself had a policy that was not to expire until about two months later. There was, however, certainly no fraud or concealment. According to the undisputed testimony, the two men simply made rio reference whatever during their discussion to the possibility that Nelms might have a policy of his own.

Thus there is ample proof to support the commission’s finding that Simmons agreed to provide compensation insurance for Nelms and his crew. In fact, there is no evidence to the contrary. The validity of such an agreement is thoroughly established by our decisions. Hale v. Mansfield Lbr. Co., 237 Ark. 854, 376 S. W. 2d 670 (1964); Hughes v. Hooker Bros., 237 Ark. 544, 374 S. W. 2d 355 (1964); Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S. W. 2d 270 (1963). It may be true, as thei appellants argue, that the Simmons compensation policy would not have prevented Zeiler’s dependents from bringing a wrongful death action against Simmons, as the prime contractor, had such a cause of action existed. Even so, that possibility does not entitle Simmons to repudiate its contract. Any such election would lie with the claimants, not with the primary contractor or its insurer.

The appellants also contend that the full commission should have allowed them to introduce a deposition of Howard Simmons that was not taken until almost six months after the referee had handed down his decision in favor of the claimants. The commission held that, under its own procedural rules, the deposition was taken and tendered too late; for the referee would have received the deposition if it had been offered earlier. We find no abuse of discretion in that ruling. Moreover, in the deposition Mr. Simmons admitted with candor that if Nelms had testified “that he’d talked to you wanting $29 and that you offered him $28 and agreed to carry insurance,” that testimony would “likely be correct.” Thus no prejudice is shown, for Simmons corroborated Nelms upon the pivotal point of fact in the case.

Affirmed.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case.

Ark. Stat. Ann. § 81-1305 (Repl. 1960) provides, in part, as follows:

“Every employer shall secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of employment, without regard to fault as a cause for such injury; * * * The primary obligation to pay compensation is upon the employer and the procurement of a policy or insurance by an employer to cover the obligation in respect to this act shall not relieve him of such obligation.”

Apparently Nelms was legally obligated to secure compensation for his employees under § 81-1305 and there is no question that he did so. There is no question that Nelms was a subcontractor, and there is no question that the decedent, Zeiler, was an employee of Nelms at the time of Zeiler’s accidental death within the course of his employment by Nelms.

The compensation law is not concerned with the enforcement of verbal agreements between the prime and independent subcontractors. The compensation law is concerned with providing compensation benefits for injured employees coming under the act, and is not concerned with relieving prime contractors of common law toft liability by such subtle device as a verbal agreement between prime and subcontractors.

Section 81-1505, supra, prescribes the obligation of Nelms to his employee, Zeiler, in this case, and Nelms fulfilled his obligation under this statute.

Section 81-1306 prescribes Simmons’ liability in the eveht that Nelms had not secured the compensation for which he was liable under § 81-1305. Section 81-1306 pertaining to subcontractors is as follows:

“Where a subcontractor fails to secure compensation required by this act [§§ 81-1301—81-1349], the prime contractor shall be liable for compensation to the employees of the subcontractor. Any contractor or his insurance carrier who shall become liable for the payment of compensation on account of injury to or death of an employee of his subcontractor may recover from the subcontractor the amount of such compensation paid or for which liability is incurred. The claim for such recovery shall constitute a lien against any moneys due or to become due to the subcontractor from such prime contractor. A claim for recovery, however, shall not affect the right of the injured employee or the dependents of the deceased employee to recover compensation due from the prime contractor or his insurance carrier.”

Now under the facts in the case at bar, Nelms had fully secured compensation to his employees, including Zeiler, and this security (workmen’s compensation insurance policy) was in full effect at the time of Zeiler’s death while in the employment of Nelms in the execution of Nelms’ subcontract for the prime contractor, Simmons. Simmons had simply made a verbal agreement with Nelms to secure compensation covering Nelms’ employees, including Zeiler, and Nelms testified that he entered into this agreement in order to secure compensation to himself as well as to his employees.

I agree that the majority opinion apparently does no violence to death claims arising in favor of dependent claimants in this particular case, but it is my view that the majority opinion does, do violence to the compensation law as it is now writtep and as we have heretofore interpreted it.

I can readily visualize a situation where Zeiler might have been injured or lost his life because of the common law negligence of the prime contractor. In such event he, or his dependents, would have been entitled to workmen’s compensation benefits from Nelms (who had secured compensation under the act) without losing or affecting any third party tort action claim for negligence he, or his dependents, might have had against the prime contractor, Simmons. Baldwin & Co. v. Maner, 224 Ark. 548, 278 S. W. 2d 28.

The effect of the majority opinion, as I view it, is to permit a subcontractor who has secured compensation for his employees, to barter away, through verbal agreement, his employees’ right of recovery in negligence tort actions against a prime contractor, in exchange for individual compensation security to the subcontractor.

I cannot accept as an intent of the law that such substantial rights of an employee are to be weighed on such delicate scales as verbal executory agreements between an employer subcontractor and a third party prime contractor.

I would reverse.


author: Lyle Brown, Justice.

text:
    Mary NOWLIN v. Pauline SPAKES, Ex’x
    5-5474
    463 S. W. 2d 650
    Opinion delivered March 1, 1971

      Branscum, Schmitt & Mazzanti, for appellant.

      John W. Elrod, for appellee.
   Lyle Brown, Justice.

Appellant Mary Nowlin challenged the validity of the will purportedly executed bv her son and which named his sister, appellee Pauline Spakes, as his sole beneficiary. At the conclusion of appellant’s case the court sustained appellee’s demurrer to the evidence. Appellant contends that the demurrer should have been overruled because she made a prima facie case supporting her allegations of incompetency, undue influence, and execution of the will contrary to statutory requirements.

The testator, Allen Nowlin, died in August 1969. For a number of years he suffered from Parkinson’s disease. For some six or seven years prior to his death, Allen was so crippled that he had to have assistance in feeding and bathing himself. He had a mother and nine brothers and sisters and he lived with several of those relatives during that period. Those facts are undisputed.

Nine witnesses testified for appellant. The appellant-mother described the testator’s hands as being so drawn and distorted that he did not use them for the last ten years of his life. She said the testator could not sign his own name and that others had to endorse social security checks. "He got progressively worse and his mind was affected. He would see things and think the army was coming in on him with guns, and he accused people of spraying arsenic in his room.”

A brother, Grady Nowlin, testified that Allen’s speech was so impaired that he was hardly understandable. He also said Allen was unable to sign his checks between 1964 and 1969. Allen lived with Mr. and Mrs. Paul Nowlin from 1965 until 1968. She described Allen’s hands as being so drawn together that he could not hold anything. Mrs. Nowlin said she could not handle Allen by herself and that she brought in paid male help to assist her. "His mind was just about completely gone. He didn’t remember anything . . He talked of planes crashing in his room . . . sometimes he wouldn’t eat because he said we had his food poisoned.”

Two of the attendants hired by Mrs. Paul Nowlin testified. George Goss said he bathed Allen, fed him, and gave him medicine. He asserted that it was impossible for Allen to sign his name, even if someone were to place a pencil between his fingers and guide the pencil. He said Allen could barely make a cross on his checks. As to Allen’s mentality, Mr. Goss said “He talked crazy like someone was after him and spraying him.” Attendant Calvin Kearney testified as to Allen’s physical helplessness. He also said he never saw Allen sign his name.

Another brother, Norman Nowlin, testified that he visited Allen when he was staying with appellee and that Allen was out of his mind. He described Allen’s fingers as being so stiff and distorted that it was impossible to get a pencil between them.

On March 1, 1968, Allen left the home of Mr. and Mrs. Paul Nowlin and went to visit his sister (appellee), Mrs. Pauline Spakes. That sister was called as an adverse witness. She testified that about two weeks after arrival, Allen told her he wanted to make a will and leave everything to her if she would take care of him until his death. She said she called the lawyer and gave him the information; that the will was drawn and brought to her house; that she put a pencil between Allen’s fingers and helped him write his name; and that it would have been impossible for Allen to write his own name without assistance. She conceded that during Allen’s stay of eighteen months prior to death, that was the only instance in which he signed his own name. She was asked to identify checks drawn on Allen’s account which reflected that she signed the checks “Mrs. Pauline Spakes, for Allen W. Nowlin.” Appellee said she told her mother about the will but did not tell her what disposition Allen made of his estate.

In considering the demurrer to the evidence it was the duty of the trial court to give the evidence “its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if [her] evidence when so considered fails to make a prima facie case.” Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225 (1950). “On demurrer to the evidence we view the proof in the light most favorable to the plaintiffs.” Keck v. Gentry, 238 Ark. 672, 384 S. W. 2d 242 (1964). Gauged by the recited principles we think it clear that appellant made such a case as would support a finding in her favor unless evidence sufficient to controvert it is forthcoming. All appellant had to do was to establish a prima facie case with respect to only one of her three allegations, namely, incompetency, undue influence, or execution of the will contrary to statutory requirements. As we review the evidence we have summarized we think appellant met her burden on at least one of her allegations.

Reversed.


author: John A. Fogleman, Justice.

text:
    BURKS MOTORS, INC. v. INTERNATIONAL HARVESTER COMPANY, INC. et al
    5-5425
    466 S. W. 2d 907
    Opinion delivered March 1, 1971
    [Rehearing denied May 10, 1971.]

      Wootton, Land & Matthews, for appellant.

      Wright, Lindsey ir Jennings, for appellees.
   John A. Fogleman, Justice.

This is an appeal by Burks Motors, Inc., from that part of the judgment involved in International Harvester Company v. Pike, 249 Ark. 1026, 466 S. W. 2d 901, relating to contribution by International to Burks. This judgment in favor of Pike was against appellant and appellee, jointly and severally, for $87,000. Burks was granted judgment against International for contribution of 91% of the judgment. Burks appealed from this judgment, contending that it was entitled to a greater contribution by International. Burks does not question the issues of liability or the amount of the judgment, but seeks only to modify the judgment in respect to contribution. It asserts that it was liable to Pike for negligence only, that the jury found that Burks’ negligence and that of International Harvester contributed only 10% to the cause of Pike’s damages, and that Burks’ only responsibility was limited to 9% of the negligence involved as a concurring cause. We do not agree with appellant’s construction of the jury verdict.

Pike’s cause of action against both Burks and International was based upon both breach of warranty and negligence. Burks prayed for determination of relative fault between it and International, and judgment over against International under the Uni orm Contribution Among Tortfeasors Act [Ark. Stat. Ann. §' 34-1001, et. seq. (Repl. 1962)] for its propordonate liability. Burks also asked judgment over against International for any recovery for breach of warranty.

The case was submitted to the jury upon interrogatories. No interrogatory was submitted as to whether Burks was liable for breach of warranty, because it was clearly entitled to judgment over against International for any breach of implied warranty. The circuit judge stated that he would be willing to submit further interrogatories to the jury after it had answered those submitted, if any were necessary to have further information from it to avoid any confusion.

Before any interrogatory was submitted, it was agreed by all parties that, if the jury found that International was guilty of negligence which was a proximate cause of Pike’s damages, and answered other interrogatories submitted, the court would then submit a final interrogatory requiring allocation of International’s liability be veen negligence in design on the one hand and neghgence in assembly and repair on the other for the purpose of an action by International against Hendricks Manufacturing Company, the alleged supplier of t torque rod assembly. When the jury first retired, the only interrogatories submitted were directed to findings whether International Harvester was guilty of negligence constituting a proximate cause, whether Burks was guilty of such negligence, whether International was guilty of a breach of warranty which was a proximate cause, and whether Pike assumed the risk of his own injury. After these interrogatories were answered, the circuit judge submitted an interrogatory calling for apportionment of responsibility between.International and Burks. The interrogatory and the answer are as follows:

Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible.
ANSWER: International Harvester Co. - 91%
Burks Motors, Inc. 9%
Total , 100%
s/C. O. Shuffield, Foreman

This interrogatory was requested by Pike. Objection was made by Burks only on the ground that, it failed to submit the issue of negligence on the part of Pike.

The circuit judge then submitted interrogatories as to damages. After answers to these were returned into court, he then submitted the interrogatory as to apportionment of negligence of International between negligence in design and negligence in assembly and repair.

This interrogatory to which no one objected, either as to form or substance, was answered as follows:

INTERROGATORYNO.il
Having answered Interrogatory Nó. 1 in the affirmative finding International Harvester negligent, you will now again using 100 as a percentage figure apportion the degree of fault as between negligence in design and negligence in assembly or repair.
90% Design 10% Assembly or repair 100%
s/C. O. Shuffield Foreman

Judgment was then entered. In it, Burks was given judgment against International for 91% contribution.

Appellant argues that because the jury attributed 90% of International’s negligence to negligence in design, appellant could only be liable to Pike for its pro rata part (9%) of the negligence in assembly and repair and was entitled to contribution for all of the judgment over and above that percentage (0.9%).

There is no question but what Burks was entitled to judgment over against International for any liability for breach of warranty and no objection was made by anyone to the circuit judge’s statement that, upon a finding that there was such a breach which was a proximate cause, he would enter judgment against International in Burks’ favor.

We do not agree with appellant’s construction of the interrogatories and their answers. Liability for breach of warranty could be said to overlap or include negligence in both design and assembly, but not negligence in repair. Thus, International’s breach of warranty could have contributed more than 90% to the cause of the occurrence. But this is consistent with the jury’s finding that 91% of the responsibility for the occurrence lay upon International and 9% on Burks. That finding of responsibility must have included both liability for breach of warranty and negligence on the part of International, but as to Burks’ responsibility, only negligence could have been considered by the jury. The plain language of the. interrogatory, when considered along with the answers to the interrogatories, can lead to no other conclusion. If this was not clear, Burks had the opportunity to request further interrogatories, even after interrogatory 11 was answered. The record does not indicate that any such request was made.

Appellant’s prayer for modification of the judgment is denied.

       International filed a third party complaint against Hendrickson. Quashing of the service thereon by the trial court was reversed in International Harvester v. Hendrickson Mfg., 249 Ark. 298, 459 S. W. 2d 62.


text:
    Dolphe SHEARER, Administrator of the Estate of Audie Shearer, deceased v. Rudolph NEWSOM, Special Administrator of the Estate of Bessie Newsom, deceased
    5-5470
    463 S. W. 2d 642
    Opinion delivered March 1, 1971

      Frierson, Walker, Snellgrove ir Laser, for appellant.

      Barrett, Wheatley, Smith Deacon, for appellee.
   John A. Fogleman, Justice.

This is a wrongful death action wherein the personal representative of a guest in an automobile sought recovery from the estate of the driver. Both guest and driver died from injuries received in a collision with another vehicle. Judgment was rendered against appellant, as personal representative of the guest, pursuant to jury verdict. The sole question on appeal is whether the circuit court committed reversible error in refusing appellant’s requested instruction covering certain common law and statutory rules of the road. We find no error.

The instruction was patterned after AMI 901, in setting out rules governing duties as to lookout, control and speed, omitting the opening clause “In determining whether the driver was negligent” and the closing sentence, “A failure to meet the standard of conduct required by any of these three rules is negligence.” The tendered instruction then incorporated the format of AMI 903, quoting Ark. Stat. Ann. § 75-601 (c) 3 (Supp. 1969), Ark. Stat. Ann. § 75-607 (Repl. 1962) and Ark. Stat. Ann. § 75-611 (a) (Repl. 1962) and (b) 1 (Supp. 1969) and pertinent portions of § 75-611 (b) 3 (Supp. 1969). The proposed instruction was concluded, however, by the following sentence: “The statutes and rules of the road may be considered by the jury in determining whether or not the deceased operator was guilty of wilful and wanton misconduct in the operation of her vehicle.” This conclusion was apparently substituted for the usual concluding sentence in both AMI 901 and 903. The trial judge gave both AMI 205 and AMI 402 in proper form for a guest-host case.

Appellant relies principally upon Spence v. Vaught, 236 Ark. 509, 367 S. W. 2d 238. We do not think that our holding in that case required the giving of the instruction requested by appellant. In that case, we said that the giving of an instruction delineating duties of a driver of an automobile with reference to control and speed and declaring failure to observe them to be evidence of negligence, was not an incorrect statement of the law or misleading to the jury, when considered with all the other instructions given. The instruction on rules of the road there given was followed immediately by this instruction:

Now should you find from a preponderance of the evidence that the defendant, Lucy Spence, was guilty of negligence in one or more of the respects alleged by the plaintiff, as just related to you, this negligence, without more, would not entitle the plaintiffs to maintain this action, or to recover their damages, if any. As you have previously been instructed, to recover in this action, if at all, plaintiffs must prove by a preponderance of the evidence that the defendant was guilty of wilful and wanton conduct. They must prove not only that the defendant was negligent, but also that she knew, or had reason to believe that her act of negligence was about to inflict injury, and that she continued in this course of conduct with a conscious indifference to the consequences thereof, exhibiting a wanton disregard of the rights and safety of others.

As offered, with the concluding sentence worded as it was, appellant’s requested instruction would undoubtedly have led the jury to the patently erroneous belief that violation of the rules of the road set out would be evidence of wilful and wanton misconduct. Since the instruction offered was erroneous and our attention is not directed to any instruction limiting its effect as given in Spence v. Vaught, we must affirm the judgment.


text:
    CONTINENTAL CASUALTY COMPANY v. Robert H. DAVIDSON
    5-5475
    463 S. W. 2d 652
    Opinion delivered March 1, 1971

      Rose, Barron, Nash, Williamson, Carroll if Clay, for appellant.

      McMath, Leatherman if Woods, for appellee.
   John A. Fogleman, Justice.

Appellant asserts that the circuit court’s instructions defining total disability were erroneous, in the light of the policy on which appellee sued. We find reversible error in that regard.

A review of the evidence would serve no useful purpose. It is sufficient to say that "there was evidence sufficient to support a finding of total disability whether the court’s definition or appellant’s is used. The pertinent policy provision is as follows:

TOTAL DISABILITY. When, as the result of injury and commencing within thirty days after the date of the accident, the Insured is wholly and continuously disabled and prevented from performing each and every duty pertaining to his occupation, the Company will pay periodically the Monthly Indemnity stated in the Schedule for the period the Insured is so disabled, not to exceed twelve consecutive months. Subject to the “Maximum Period Total Disability Accident Indemnity” stated in the Schedule and after the payment of Monthly Indemnity for twelve months as aforesaid, the Company will continue the periodic payment of Monthly Indemnity so long as the Insured is wholly and continuously disabled and prevented by reason of said injury from engaging in each and every occupation or employment for wage or profit for which he is reasonably qualified by reason of education, training or experience.

It is conceded that appellant paid total disability benefits to appellee for more than 12 months prior to September 17, 1968. Appellee then sued for benefits from that date until the date of trial and recovered judgment for these payments at the policy rate of $100 per month with statutory penalty and attorney’s fees. As one of its defenses appellant denied that appellee was permanently disabled so that in the future he would be unable to return to his former employment or engage in any occupation for wages or profit.

The circuit judge gave only the following instruction defining total disability:

You are instructed that the provisions of the policy which I have quoted relating to disability do not mean a state of absolute helplessness. But they mean that, if there was any substantial and material acts necessary to be done pertaining to his occupation that he could not perform in the usual and customary way, he would be totally disabled within the meaning of this policy.

Appellant objected because the instruction would preclude the jury from considering appellee’s ability to engage in any occupation for which he was reasonably qualified by reason of education, training and experience, other than his previous occupation.

Appellant offered, and the court refused, the following instructions pertaining to total disability:

NO. 2

The term “total disability,” as contemplated by an accident insurance policy such as the one sued on in this case, does not mean what a literal reading would require, that is, a state of absolute helplessness, but rather contemplates such a disability as renders the insured unable to perform all the substantial and material acts necessary to the prosecution, in a customary manner, of any occupation or business for which the insured is reasonably (R. 94) qualified by reason of his education, training and experience.

NO. 5

You are instructed that even though you believe from the evidence in this case that the plaintiff is and has been unable to return to his former occupation with the Missouri Pacific Railroad, yet if you further believe from the evidence that the plaintiff has not been prevented as a result of his injury from performing all the substantial and material acts necessary to the prosecution, in a customary manner, of any occupation or business for which he is reasonably qualified by reason of his education, training or experience, then the Court instructs you that the plaintiff would not be entitled to the benefits for which he is suing, and your verdict should be for the defendant.

Appellant concedes that the instruction given by the court would be correct were it not for the fact that total disability benefits are payable under two different conditions, i. e.\ (1) benefits for a maximum of 12 months while the insured was totally disabled from performing any substantial and material duties of his former occupation; and (2) benefits thereafter so long as the insured is disabled from performing the material duties of any occupation for which he is reasonably qualified by reason of education, training and experience. We agree with appellant that all our previous cases, save one, have dealt with policies that were substantially similar, but which did not have two separate and distinct categories for payment of disability benefits. While the one exception involved only the question of liability for total disability in the usual sense, it was clearly recognized there that different considerations might have been involved had liability in the second category set out above been in issue. See Franklin Life Insurance Company v. Burgess, 219 Ark. 834, 245 S. W. 2d 210. Part I of the policy there involved entitled the insured to monthly benefits for a maximum of 12 months while prevented by illness or injury from performing each and every duty pertaining to his occupation. Thereafter, the payments were to be continued so long as the insured should be wholly, necessarily and continuously disabled and prevented by such injury or illness from engaging in any occupation for wages or profit. In reducing the amount of attorney’s fees allowed, the court noted that we had previously approved fees in excess of the amount of recovery in similar cases where the determination of questions involved also determined the liability of the insurance company for future disability payments. We said:

It is noted that the second paragraph of Part I of the policy provides for payment of monthly indemnity after the twelve-month period provided in paragraph one on certain conditions and uses language somewhat different from that employed in the first paragraph. It is true that a recovery in the present suit preserves appellee’s right to seek further recovery for future installments under paragraph two, but it does not establish a right to future payments after the twelve-month period or determine appellant’s liability therefor.

While this language does not constitute binding authority for appellant’s argument, it is clear recognition that the language in that policy defined two entirely different bases for liability for total disability. The language of the policy here is strikingly similar. If the words in the two clauses of each of the respective policies defining the total disability meant the same thing, then nothing short of recovery by the insured would prevent a judgment under the first clause from being res judicata as to future liability under the second clause. Such a result does not seem to be a sensible one in light of the disparate language of the two clauses. In construing a contract, even one for insurance drawn by the insurer, we must assume that the use of different language to define different obligations was deliberate and accompanied by an intention to convey different meanings rather than the same one. Different clauses of a contract must be read together and the contract construed so that all of its parts harmonize, if that is at all possible, and, giving effect to one clause to the exclusion of another on the same subject where the two are reconcilable, is error. Kelsey and Fletcher v. Brown and Hackney, 165 Ark. 613, 264 S. W. 930; American Indemnity Co. v. Hood, 183 Ark. 266, 35 S. W. 2d 353. A construction which neutralizes any provision of a contract should never be adopted if the contract can be construed to give effect to all provisions. Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S. W. 2d 611. What we said in Fowler is particularly appropriate here, viz:

It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered not from particular words and phrases but from the whole context of the agreement. In fact, it may be said to be a settled rule in the construction of contracts that the interpretation must be the entire instrument and not merely on disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Every word in the agreement must be taken to have been used for a purpose, and no word should be rejected as mere surplusage if the court can discover any reasonable purpose thereof which can be gathered from the whole instrument. The contract must be viewed from beginning to end, and all its terms must pass in review, for one clause may modify, limit, or illuminate the other. Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course. Seeming contradictions must be harmonized, if that course is reasonably possible. Each of its provisions must be considered in connection with the others, and, if possible, effect must be given to all.

The rights and liabilities of the parties to an insurance contract must be determined by considering the language of the entire policy. American Indemnity v. Hood, supra. Legal effect must be given to all the language used, and the object to be accomplished by the contract should be considered in interpreting it. Aetna Life Insurance Company v. Spencer, 182 Ark. 496, 32 S. W. 2d 310. Whatever the construction of a particular clause standing alone may be, it must be read in connection with other clauses limiting or extending the insurer’s liability. Aetna Casualty & Surety Co. v. Sengel, 183 Ark. 151, 35 S. W. 2d 67. In considering the phraseology of an insurance policy the common usage of terms should prevail when interpretation is required. National Investors Fire & Casualty Co. v. Preddy, (March 23, 1970), 451 S. W. 2d 457.

When we read the clear language of the two sentences of the total disability clause, giving their terms the meaning ascribed by common usage, the intention to describe two different types of total disability is inescapable. Whatever construction we might give the language of the second sentence describing total disability if it stood alone, when both clauses are read together we simply cannot say that it was contemplated that they define the same kind of disability. Consequently, appellant’s specific objection was well taken and the instruction was incorrect for the reason stated by appellant. Therefore, we must reverse the judgment and remand the case for new trial.

It does not follow, however, that appellant’s offered instructions must be given. While the giving of one of them might not be error, it can be said that both are ambiguous in that they would require appellee to be unable to perform all the substantial and material acts necessary to the prosecution, in a customary manner, of any occupation or business for which the insured is reasonably qualified by reason of his education, training and experience. It is only necessary that he be unable to perform any of such acts in order to qualify for benefits. Avemco Life Insurance Company v. Luebker, 240 Ark. 349, 399 S. W. 2d 265, 21 A. L. R. 3d 1378; Alexander v. Mutual Benefit Health ir Accident Assn., 232 Ark. 348, 336 S. W. 2d 64; Franklin Life Insurance Co. v. Burgess, 219 Ark. 834, 245 S. W. 2d 210. We clearly expressed a preference for an instruction using the word “any” in Avemco. If the words “any of” had been substituted for “all” in the offered instructions, appellant would have clearly been entitled to have one of them given. While both would then appear to be correct, appellant’s requested instruction no. 2 would be preferable because it is more in keeping with our per curiam order of April 16, 1965, requiring that instructions not covered in AMI, Civil, be simple, brief, impartial and free from argument..

In passing, we note that appellant’s failure to request a correct instruction on the issue of total disability does not bar him from relief on appeal because he made a specific objection pointing out the respects in which the instruction given was an erroneous declaration of law. Collier Commission Co. v. Wright, 165 Ark. 338, 264 S. W. 942.

In view of the disposition we make, we do not reach appellant’s point as to the amount of attorney’s fees allowed appellee.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.


author: J. Fred Jones, Justice.

text:
    U. D. MOORE et al v. Jack EAST Sr. et al
    5-5494
    464 S. W. 2d 52
    Opinion delivered March 1, 1971
    [Rehearing denied March 29, 1971.]

      Bethell, Callaway, King & Robertson, for appellants.

      Kemp ir Whitmore, for appellees.
   J. Fred Jones, Justice.

This is an appeal by U. t>. Moore et al, from a decree of the Pulaski County Chancery Court denying their petition for an injunction to prevent the Little Rock Airport Commission from entering into a contract with the Arkansas Power & Light Company for the installation of electrical power facilities and the furnishing of electrical energy for the lighting of a new parking lot and air terminal for the City of Little Rock without advertising for bids under the provisions of Act 159 of 1949. (Ark. Stat. Ann. § 14-611 [Repl. 1968]).

The City of Little Rock intervened contending that the Airport Commission is simply an agency of the city and that the agreement it contemplates with the Arkansas Power & Light Company is an agreement for electrical distribution and services not within the provisions of Act 159 of the Acts of 1949; and that the arrangement contemplated by the Commission is simply an extension of the city’s agreement with the Arkansas Power & Light Company entered into in September, 1958, for the furnishing of lighting service to public streets and ways in the City of Little Rock.

The chancellor dismissed the petition with prejudice and on appeal from the chancellor’s decree, the appellants rely on the following point for reversal:

“The making of a contract by a city for the construction and installation of lighting fixtures and facilities for a parking lot at a cost in excess of $10,000.00 is subject to the requirements of Act 159 of 1949, and the chancellor erred in holding to the countrary.”-

Act 159 of 1949, as digested in Ark. Stat. Ann. § 14-611 (Repl. 1968), reads as follows:

“No contract providing for the making of major repairs or alterations, or for the erection of buildings or other structures, or for making other permanent improvements shall be entered into between the State, or any agency thereof, or any county, municipality, school district, or other local taxing unit, with any contractor in those instances where the estimated cost of such work shall exceed the sum of $10,000.00, unless such taxing unit shall have first published notice of its intention to receive bids therefor once each week for not less than two [2] consecutive weeks in a newspaper of general circulation published in the county in which the proposed improvements are to be made, or in a trade journal reaching the construction industry. The date of publication of the last of such notices shall be not less than one [1] week before the day fixed therein for the receipt of bids. If there be no such newspaper regularly published in the county in which the proposed work is to be done, the notices may be published in any newspaper having a general circulation in such county. Nothing in this Section contained, however, shall be construed as limiting to two [2] the number of weeks the notices may be published.”

The action which brought on this litigation was the action authorized by the Little Rock Airport Commission as indicated by excerpts from the minutes of a regular meeting of the Commission on January 12, 1970, as follows:

“Mr. W. M. Alley, representing Arkansas Power and Light Company, presented a choice of several proposals whereby the Arkansas Power and Light Company would install street and parking area lighting in the new terminal area. These proposals follow for the record.
Mr. Carl Harris spoke to the Commission in opposition to Arkansas Power and Light Company’s proposal, advising the Commission that in his judgment the lights should be installed by private contractors. City Attorney Joe Kemp advised the Commission that in his opinion installation of street and parking area lighting in the new airport terminal area by Arkansas Power and Light Company was legal. Thereupon, Mr. Beauchamp moved that plan III of Section ‘B’, providing for the lighting of parking area and the streets adjacent to the terminal, requiring a monthly cost of $436.70, be adopted by the Commission and that the Airport Manager be authorized and directed to notify proper officials of the City of Little Rock the recommendation of the Commission in this respect. The motion was seconded by Mr. McLean and carried unanimously.”

It was stipulated by the parties that on September 30, 1958, the City of Little Rock entered into a contract with the Arkansas Power & Light Company under which the city, in effect, went out of the electric power distribution business, and Arkansas Power & Light Company took over the electrical distribution system then owned by the City of Little Rock. Under this agreement, Arkansas Power & Light Company became the owner of the facilities and agreed to repair, maintain and expand the street lighting system in the City of Little Rock. The contract was for a period of 20 years, and was renewable for five year periods. In the event the contract should expire and not be renewed, Arkansas Power & Light Company had a right to dismantle and remove the facilities.

The appellees contend that the contract now contemplated is only an extension of the original street lighting contract, and the appellants contend that it is immaterial whether the contract they seek to enjoin is an extension of the old contract or a completely new one; they both are covered by Act 159 and that bids must be taken and the contract let to the lowest competent bidder as provided in the act.

In support of the petition for the injunction, Mr. Moore testified that he is a resident of Little Rock and is an electrical contractor. He says that he is familiar, to some degree, with the proposed expansion of the Little Rock Municipal Airport, and that part of the plans for such expansion is to provide lighting fixtures, wiring and so forth. He testified that he would be willing to bid on such project on the basis of furnishing it on a monthly rental basis as distinguished from selling it to the city outright. He testified that he had never been offered the opportunity to do so.

On cross-examination Mr. Moore testified that in order for him to furnish electrical energy for the illumination of lamps to be installed under the proposed contract, it would be necessary for him to purchase it from the Arkansas Power & Light Company or the servicing utility. He says that it is possible for him to do this however, and he supposes he would be permitted to resell it to the City of Little Rock.

“Q. You suppose or do you know?
A. No, I don’t know. I would assume it is. I would assume that if we installed an electric service out there and paid the deposit, necessary deposits and signed a contract for service they would be obligated to serve us.”

Mr. O. V. Holeman, director of rates and research for the Arkansas Power & Light Company, testified that he was familiar with the proposed plans for expansion of the Municipal Airport and of the lighting requirements. He testified that under the proposed contract, the lighting facilities would be of the normal type of ornamental facilities supplied by an underground distribution system, and that the system would be permanent in nature but capable of being removed. He testified that the proposals that the Arkansas Power & Light Company and the city had under consideration would be for lighting service to the airport area, including the streets adjacent to the new airport; and that the proposals were made pursuant to the provisions of their municipal street lighting rate schedule which became effective November 10, 1966. Mr. Hole-man then explained that the lighting installation and service would consist of approximately ninety, 400 watt mercury vapor street lighting fixtures mounted on 40 ornamental standard poles approximately 55 feet in height. He then testified as to the cost in monthly charge under the standard street lighting rate schedule for servicing each unit. He testified that under the proposed contract the Arkansas Power & Light Company would install, own and maintain the facilities, and that in the event the term of the contract should end and should not be renewed, the facilities would be dismantled and removed by the company. He testified that the rate schedule under which the city would be charged for service would be the rate schedule approved by the Arkansas Public Service Commission for such service and would cover the cost of production and distribution necessary in furnishing street lighting service, including the purchase and depreciation of steel poles and underground cables and conduits. He testified that the rate schedule base included the annual cost of owning, operating and maintaining the facilities, together with the cost of producing the energy that supplies the street lighting.

On cross-examination Mr. Holeman testified that if the city should install the facilities and own them, that Arkansas Power & Light Company would furnish electrical current and at a lower rate than if the company installed and owned the facilities and were required to maintain and service them. He testified that the electrical energy supplied to cities for street lighting purposes is distributed in exactly the same manner as to residential customers, but at a different rate and under a different schedule approved by the Arkansas Public Service Commission.

We agree with the chancellor that neither the original contract entered into on September 30, 1958, nor the proposed contract for servicing the new airport terminal, access routes and parking area, comes within the provisions of Act 159 of 1949, § 14-611.

It is difficult to tell from the record before us whether the appellants are attempting to force the city into installing, owning and maintaining part of a public utility distribution system, or whether they are attempting to force the city to put them into the public utility distribution and maintenance business. The effect of the appellants’ contention would amount to one or the other.

If Act 159 applies to the contract under consideration, there is no reason why it should not also apply to contracts for natural gas and telephone service.

The above testimony as to the type of installation and the cost to the city is beside the issue in this case. The issue is not whether the city could more economically install, own and maintain its own electrical distribution system. The issue is whether the proposed contract comes within the provisions of Act 159, and the determining factor is the ownership of the facilities to be erected or installed, or the improvements to be made under the proposed contract.

We are of the opinion that Act 159 could only apply to such contracts as the city is authorized to make for major repairs or alterations, or for the erection of buildings or other structures, or for making other permanent improvements. The city only has such contractual power and authority as is granted to it by the legislature, and the legislature has never granted to cities the power or authority to enter into contracts for the repair or alteration of property, or for the erection of buildings or other structures, or for making other permanent improvements, on or to other peoples’ property, including that of utility companies.

The decree is affirmed.

Byrd, J., not participating.