text:
    W. H. BABBITT v. Bill GORDON
    5-5799
    476 S.W. 2d 795
    Opinion delivered February 28, 1972

      Spitzberg, Mitchell & Hays; By: Beresford L. Church, Jr., for appellant.

      Virginia (“Ginger”) Atkinson, for appellee.
   Frank Holt, Justice.

The appellee brought this action against the appellant to enforce payment of a $750 check representing the purchase price of a boat motor and accessories and to recover a $50 charge for modifying appellant’s boat transom to fit the motor equipment. By answer the appellant denied the claim alleging that appellee installed the motor on appellant’s boat without authority and in a negligent manner by failing to employ adequate and proper bolting devices, as well as failing to warn appellant’s 16-year-old son that the motor was not securely installed which resulted in the motor being wrenched free and lost in the Arkansas River one day following the mounting of the motor when the boat and motor were being operated by appellant’s son. Appellant counterclaimed for the purchase price of the motor; $140 which he had paid to a diver in an effort to retrieve the motor; and $50 for damages to his boat. The court, sitting as a jury, resolved the issues by awarding judgment against the appellant for the agreed $750 purchase price and dismissed appellant’s counterclaim.

For reversal the appellant asserts that the trial court erred in holding that the appellee was “merely the seller of an engine,” and that the loss of the motor was due to the negligence of appellant’s minor son. Further, that if appellant’s son were negligent, it was not imputable to appellant. Of course it is well settled that on appeal we review in the light most favorable to the appellee, the evidence and all reasonable inferences deducible therefrom and must affirm if there is any substantial evidence to support a jury’s or trial court’s findings. Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S. W. 2d 822 (1969); American Metal Window Co. v. Watson, 238 Ark. 418, 382 S. W. 2d 576 (1964).

The evidence is undisputed that the appellant went to appellee’s home, after a telephone conversation, and inspected the motor appellee had advertised for sale; that appellant later that day called appellee on the phone and offered him $650 which appellee refused because the motor was equipped with a hydraulic power lift; that the parties agreed upon the $750 purchase price; that later in the day appellant sent his 16-year-old son with instructions to get the motor equipment and deliver his personal check (payment was later stopped) to appellee and then take the motor to a local boat dealer for installation; that the motor had such accessories as controls and a hydraulic power lift, one-third of which was bolted or welded to the engine at the time of the sale as an integral part of the motor; that appellant’s son áppeared driving a camper truck pulling appellant’s boat; and that it was then discovered that the motor unit would not fit appellant’s boat. Appellee denied that he was aware of the type boat on which appellant intended to use the motor. The appellee adduced evidence that the youth became very concerned about the immediate use of the boat and after requesting the use of appellee’s telephone the boy returned and stated that he had talked with his father [appellant] who told him “to check with you [appellee] to see if you can help and what can be done.” It appears that appellant was leaving town for the weekend. At the insistence of appellant’s son, the appellee, for an additional charge of $50, agreed to cut down the transom or the back of appellant’s boat to accommodate the motor; “hang” the motor on the boat, install certain controls and test fire the motor. It appears undisputed that it was specifically agreed that the appellee would not mount the hydraulic power lift or hook up the power steering apparatus. The appellee proceeded that evening and the next morning to cut the transom and mount the motor on the boat in accordance with this agreement. The engine, excluding the attached power lift, was tightly bolted on with two factory clamps and two bolts through the bottom legs of the engine and the transom. The unattached two-thirds part of the power lift was put in appellant’s truck when the boy returned for the motor the next day (Saturday). Appellee testified that the engine was bolted down “for travel on the boat” and warned appellant’s son that the power lift was not installed and he would have to have additional installation. Appellee and his witnesses testified that the power lift was an integral part of the motor and that it holds or secures the motor to the boat. Appellant’s son did not take the motor to the local dealer as instructed by his father, nor for additional installation as warned by appellee. With the aid of his girl friend’s father, they hooked up the steering apparatus on the boat. The next day appellant’s son and this girl were using the boat on the river when the boat tilted, the motor wrenched loose and was lost in the river.

Appellant testified that he had observed the motor and agreed to purchase it with appellee’s assurance it would fit appellant’s boat; that he had sent his son to deliver the check with instructions to take the boat to a certain marine dealer for installation and that he had not discussed installation with appellee when he purchased the motor. Appellant could not recall a telephone call from his son and denied ever authorizing his son to make the asserted agreement with appellee. Appellant’s son admitted on cross-examination that: “It seems like I remember using the phone * * * I’m sure I tried to call him [appellant].” The boy denied that appellee warned him that there was anything defective about the motor installation. His girl companion could not recall that appellee warned them that the boat was not “water worthy” or said anything about the necessity of further installation. Another companion testified that appellant’s son attempted to make a phone call to someone; that he understood that appellee was to bolt the motor on the transom and that appellant’s son would have to get a local dealer to hook up the controls; and that from his knowledge of motors, the power lift would not assist in securing the motor to the boat. The local marine dealer testified that in his opinion appellee’s mounting of the motor on appellant’s boat was improper and would not measure up to the standard of workmanship generally employed by boat mechanics, and that the type or size of bolts used by appellee would not be used even for temporary installation. On cross-examination he did agree that if the power lift were installed with the 12 additional bolts it would give “additional security on the motor.” He later testified, however, that the installation of the power lift would not aid in securing the motor to the boat so as to prevent shearing of the undersized bolts.

Appellee, a state policeman who was not in the business of selling boat motors, testified that he had agreed with appellant’s son that: “I will bolt it exactly as it was bolted on my boat with this exception. I won’t fool with the power lift.” Further, that as the boy was leaving he warned him: “Go get your steering gear fixed up. Go get your power lift put on and when you do that the engine will be set on your transmission exactly as it had been on mine and I’d used mine for 6 years. The same engine. The same power lift.” He also testified that if the power lift were installed there would have been 12 more bolts through the transom securing the engine to the boat. Appellee’s testimony as to the circumstances surrounding this transaction was corroborated by his wife and two other witnesses.

It is strictly within the province of a jury or the trial court, sitting as a jury, to reconcile any conflicts in the testimony of the witnesses. Sardin v. Roberts, 244 Ark. 312, 424 S. W. 2d 889 (1968). We cannot disturb a finding or verdict merely because the evidence is contradictory and, of course, the court’s findings, as a fact finder, have the same verity as a jury. Pike County School Dist. No. 1 v. Pike County Board of Education, 247 Ark. 8, 444 S. W. 2d 72 (1969); Green v. Maddox, 245 Ark. 558, 433 S. W. 2d 144 (1968). The extent and nature of an agent’s authority, when in dispute, is a question for the fact finder. American Metal Window Co. v. Watson, supra. These rules of law being long established, it follows that when we review the evidence most favorably to the appellee, with all reasonable inferences deducible therefrom, as we must do, there is substantial evidence to support the trial court’s findings.

Affirmed.

Harris, C. J., not participating.

Jones, J., dissents.


source: Caselaw Access Project

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

license: Public Domain

text:
    J. Byron GRIMMETT v. STATE of Arkansas
    5595
    476 S.W. 2d 217
    Substituted opinion on rehearing, February 21, 1972

      Tackett, Young, Patton ¿r Harrelson, for appellant.

      James L. Sloan, of counsel on rehearing.

      Ray Thornton, Attorney General; James A. Neal, Asst. A tty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant J. Byron Grimmett, a dispensing physician of Waldo, Arkansas, was convicted of failing to maintain a complete and accurate record of drugs, contrary to the Arkansas Drug Abuse Control Act, Ark. Stat. Ann. § 82-2101 et seq. (Supp. 1971).

The section and subsections here involved provide:

“Árk. Stat. Ann. § 82-2107 (a) No person shall manufacture, compound or process in this State any depressant or stimulant drug, except that this prohibition shall not apply to the following persons whose activities in connection with any drug are as specified in this subsection:
(a) (5) Practitioners licensed in this State to prescribe or administer depressant or stimulant drugs, while acting in the course of their professional practice.
(e) (1) Every person engaged in manufacturing, compounding, processing, selling, delivering or otherwise, disposing of any depressant or stimulant drug shall, upon the effective date [June 29, 1967] of this Act, prepare a complete and accurate record of all stocks of each drug on hand and shall keep such record for three years; except that if this record has already been prepared in accordance with Section 511 (d) of the Federal Act, no additional record shall be required provided that all records prepared under Section 511 (d) of the Federal Act have been retained and are made available to the Board upon request. When additional depressant or stimulant drugs are designated by the Board after the effective date [June 29, 1967] of this Act, a similar record must be prepared upon the effective date of their designation on and after the effective date of this Act, every person manufacturing, compounding, or processing any depressant or stimulant drug shall prepare and keep, for not less than three [3] years, a complete and accurate record of the kind and quantity of each drug manufactured, compounded, or processed and the date of such manufacture, compounding, or processing; and every person selling, delivering, or otherwise disposing of any depressant or stimulant drug shall prepare or obtain, and keep for not less than three [3] years, a complete and accurate record of the kind and quantity of each drug received, sold, delivered, or otherwise disposed of, the name and address from whom it was received and to whom it was sold, delivered, or otherwise disposed of, and the date of such transaction.
(e) (3) The provisions of paragraphs (1) and (2) óf this subsection shall not apply to a licensed practitioner described in subsection (a) (5) with respect to any depressant or stimulant drug received, prepared, processed, administered, or dispensed by him in the course of his professional practice, unless such practitioner regularly engages in dispensing any such drug or drugs to his patients for which they are charged, either separately or together with charges for other professional services.”

For reversal of the conviction and fine of $2,000, appellant contends, among other things, that the court erred in issuing the search and seizure warrant.

On the day of arrest Duke Atkinson, an Arkansas State Policeman with the Narcotic and Dangerous Drug Bureau, made an affidavit for search warrant before the trial court. He there alleged that on August 8, 1969, he had purchased without prescription a number of green and white dexamyl spansules from the Grimmett Medical Clinic, located on Highway 19 North, through Pat Kimbal, a nurse at the clinic, and that on December 3, 1969, he again purchased, without prescription from Pat Kimbal, who again stated that Dr. Grimmett would sign a prescription later, one plastic medical vial containing 24 white round scored amphetamine pills and a plastic medical vial containing 30 Smith Kline and French Dexamil capsules of the 5 milligram type, a class “B” narcotic, the sale of such narcotics, depressants etc., being a violation of law. Based upon the affidavit the court issued a search warrant to search the premises and to seize all books and accounts, records, inventory sheets, bills of lading, invoices, and records of drug and medicine purchases for sales and to bring such narcotics, depressants and stimulants, books of accounts, records, inventory sheets, bills of iading, invoices, and record of drug and medicine purchases and sales before the court.

After serving the search warrant, Sergeant Atkinson arrested both Pat Kimbal and appellant and seized 1,812,-976 units of drugs and medicines. Of this amount only 656,645 units were controlled drugs under the Drug Abuse Control Act. Hal McKay, a Texas pharmacist, estimated the value of all the drugs seized, including those subject to purchase at any grocery store, at $79,-372.83, the controlled drugs at $13,437.12, and the narcotics at seventy-five cents.

In contending that the search warrant was invalid and that the evidence gained thereby should be suppressed, appellant asserts that there was no statute authorizing its issuance. The State contends that the issuance of the search warrant was authorized by the common law, by Arkansas Constitution Art. 2, § 15 and by Ark. Stat. Ann. § 82-2109(2) and § 82-2105(A) (Supp. 1971).

In discussing the issues here, it must be remembered that prior to Mapp v. Ohio, 367 U. S. 643, 61 L. ed 2d 1081, 81 S. Ct. 1684, 84 A. L. R. 2d 933 (1961), Arkansas had not adopted the exclusionary rule with reference to evidence illegally obtained by the State through its duly elected or appointed officers. See Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816 (1959), where this court had given notice that admissibility of such evidence would be reconsidered. Because of this court’s rulings that such evidence was admissible, the Legislature had little or no reason to consider what evidence or articles should be susceptible or reachable by search warrant. At the time this case arose, we had statutes authorizing the issuance of search warrants for property lost by wreck or rising waters, Ark. Stat. Ann. § 21-315; for cruelty to animals, Ark. Stat. Ann. § 41 — 423; for cruelty to children, Ark. Stat. Ann. § 41-1110; for gambling devices, Ark. Stat. Ann. § 41-2009 and § 41-2010; for enticement of female to house of ill fame, Ark. Stat. Ann. § 41-3216; for enticement of female under 18 years to any place for immoral purposes, Ark. Stat. Ann. § 41-3218; for machine guns, Ark. Stat. Ann. § 41-4515; for stolen or embezzled property, Ark. Stat. Ann. § 43-20L, § 43-202 and § 43-204; for liquor law violations, Ark. Stat. Ann. § 48-1107; and for cases involving liquified petroleum gas, Ark. Stat. Ann. § 53-733. None of these statutes authorize the issuance of the warrant here involved.

Article 2, § 15 of the Constitution of Arkansas provides:

“The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.”

This is obviously a limitation upon the power of government and not an authorization for the issuance of search warrants. See State ex rel Streit v. Justice Court et al, 45 Mont. 375, 123 P. 405 (1912), State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A. 2d 863 (1940), and White v. Wagar, 185 Ill. 195, 57 N. E. 26 (1900).

The search warrant was not known to the early common law. Lord Coke denied its legality. However in Entick v. Carrington, 19 How. St. Tr. 1030, 95 Eng. Rep. 807 (1765), it was recognized that the issuance of search warrants for stolen goods had become a part of the common law by “imperceptible practice.” The Entick case is discussed at length, together with the history preceding the decision, in Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 S. Ct. 524 (1885). With reference to the use of search warrants by the common law, Justice Bradley in the Boyd case stated:

“. . . [T]he seizure of stolen goods is authorized by the common law; and seizure of goods forfeited for a breach of the duties payable on them, has been authorized by English statutes for at least two centuries past; . . .”

The earliest such statute, 12 Car. 2, c. 19, cited by Justice Bradley as authorizing the issuance of search warrants for contraband, was passed in the year of 1662. In determining the portion of the laws of England that should be made applicable to the laws of this State, Ark. Stat. Ann. § 1-101 (Repl. 1956), provides:

‘The common law of England, so far as the same is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply the defects of the common law made prior to the fourth year of James the First (that are applicable to our own form of government), of a general nature and not local to that kingdom, and not inconsistent with the Constitution and laws of the United States or the Constitution and laws of this State, shall be the rule of decision in this State unless altered or repealed by the General Assembly of this State.”

The fourth year of the reign of James the First began on March 24, 1607, and corresponds to the founding of Jamestown. Consequently we know of no act of Parliament having to do with the seizure of contraband prior to that date. Thus we must conclude that there is no common law authority in this State for the issuance of a search warrant for contraband.

Other states, with similar prohibitions on unreasonable searches and seizures, that have had occasion to consider the issue, have held that issuance of a warrant not authorized by law is an unreasonable search and seizure. See State ex rel King v. District Court et al, 70 Mont. 191, 224 P. 862 (1924), and State v. Wills, 91 W. Va. 659, 114 S. E. 261, 24 ALR 1398 (1922).

The State here relies upon both Ark. Stat. Ann. § 82-2105(a) and § 82-2109(2) as authority for issuance of the warrant involved. The first section provides:

“§ 82-2105(a) The following are hereby declared to be contraband and shall be seized and forfeited without warrant by a duly authorized agent of the State Board of Health whenever he has reasonable grounds to believe they are:
(1) A depressant or stimulant drug with respect to which a prohibited Act . . . has occurred, . . .”

Ark. Stat. Ann. § 82-21 OS provides:

“Any officer or employee of the State Health Department designated by the State Health Officer to conduct examinations, investigations, or inspections under this Act relating to depressant or stimulant drugs or to counterfeit drugs may, when so authorized by the State Health Officer:
(1) ...
(2) Execute and serve search warrants and arrest warrants; ...”

As can be seen the literal language of neither statute authorizes the issuance of a search warrant. This State, though, suggests that we should read such authorization into the statutes by implication. In doing so the State overlooks the rule that a statute at variance with the common law must be strictly construed. In State v. Certain Contraceptive Materials, supra, with reference to construction of statutes relating to issuance of search warrants, it was said:

“Where search and seizure has been extended by statute to cases in which the property sought has been used as a means of committing or is possessed with the intent to use it as the means of committing a criminal offense, the use of the process may not be extended by construction to any case not clearly covered by the statute. 24 R. C. L. 716 State ex rel. Streit v. Justice Court, 45 Mont. 375, 123 Pac. 405; People ex rel. Simpson Co. v. Kempner, 208 N. Y. 16, 101 N. W. 794. Such search warrants partake of the nature of criminal process, are drastic in their nature and it is the general rule that statutes authorizing them must be strictly construed. 56 C. J. 1160, 1184; United States (C. D. A.) 284 Fed. 208, 212. . .”

In State ex rel Streit v. Justice Court et al, 45 Mont. 375, 123 P. 405 (1912), after holding that the use of a search warrant could not be extended by construction of a statute, that court pointed out that a search warrant . . is a sharp and heavy police weapon to be used carefully, lest it wound the security or liberty of the citizen.”

From the foregoing discussion, it follows that there was neither statutory nor common law authorization for the issuance of the search warrant involved. Consequently the search warrant was unlawfully issued and the evidence acquired thereby should have been suppressed.

Reversed and remanded.

Harris, C. J., and Fogleman and Jones, JJ., concur.

John A. Fogleman, Justice,

concurring. I concur in the result reached by the majority, on rehearing, because I am now of the opinion that the drugs and merchandise seized were not contraband, and it was not illegal for the doctor, a dispensing physician, to possess them. See Ark. Stat. Ann. §§ 82-2107 (a) (5), (c); 82-2105 (a) (Supp. 1971). Furthermore, I do not think that there was authority for a warrant to seize the books and records, although I think there is ample authority for inspecting and copying them. Ark. Stat. Ann. § 82-2107(e). My views on the subject are expressed in my concurring opinion in Ferguson v. State, 249 Ark. 138, 458 S. W. 2d 383, wherein I pointed out that there was no common law or statutory authority for the issuance of a warrant to search for mere evidence. See, also, my concurring opinion in Montgomery v. State, 251 Ark. 645 (1971), 473 S.W. 2d 885.

The constitutional question raised here was not reached by the majority in Ferguson. In view of the fact that the drugs and medicine were not contraband and the books and records were at best evidentiary material, this court should not consider the constitutional question treated by the majority in the substituted opinion. We have said for more than 75 years that courts do not and should not pass upon constitutional questions unless the answers to those questions are so necessary to a determination of the case that it cannot otherwise be decided. Missouri Pacific Ry. Co. v. Smith, 60 Ark. 221, 29 S. W. 752; Porter v. Waterman, 77 Ark. 383, 91 S. W. 754; Smith v. Garretson, 176 Ark. 834, 4 S. W. 2d 520; Honea v. Federal Land Bank of St. Louis, 187 Ark. 619, 61 S. W. 2d 436; Satterfield v. State, 245 Ark. 337, 432 S. W. 2d 472; County of Searcy v. Stephenson, 244 Ark. 54, 424 S. W. 2d 369; Mobley v. Conway County Court, 236 Ark. 163, 365 S. W. 2d 122; Rome v. Ahlert, 231 Ark. 844, 332 S. W. 2d 809. We have even said that where litigation is disposed of without reaching constitutional questions, anything said on the constitutional point would be pure dictum [Bell v. Bell, 249 Ark. 959 (February 8, 1971), 462 S. W. 2d 837]; that where the case can be disposed of without determining the constitutional question, it is our duty to do so (Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487); that constitutional questions are never decided unless necessary (Little Rock Road Machinery Co. v. Jackson County, 233 Ark. 53, 342 S. W. 2d 407); and that constitutional questions are not decided unless the case cannot be disposed of on any other ground (Bailey v. State, 229 Ark. 74, 313 S. W. 2d 388, cert. denied 358 U. S. 869, 79 S. Ct. 101, 3 L. Ed. 2d 101).

Our invariable rule was founded upon the language of Judge Cooley quoted in Missouri Pacific Ry. Co. v. Smith, 60 Ark. 221, 29 S. W. 752. A part of that quotation follows:

In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when, consequently, a decision upon such question will be unavoidable.

There is no reason why we should decide, in this case, the constitutional question arising from lack of statutory authority for a warrant to search for goods illegally possessed. We should adhere to our unvarying rule.

I am authorized to state that Mr. Justice Jones joins in this opinion.

      A housing code authorizing a search without a warrant was held invalid in Camara v. Municipal Court, 387 U. S. 523, 87 S. Ct. 1727, 18 L. ed 2d 930 (1967). A warrant issued by an officer involved in the investigative process was held invalid in Coolidge v. New Hampshire, 403 U. S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971).

      Subsequent to the warrant here involved, the Legislature, by Act 123 of 1971, has provided rather comprehensive authority for the issuance of search warrants.


author: Carleton Harris, Chief Justice.

text:
    Leo THOMPSON v. STATE of Arkansas
    5689
    477 S.W. 2d 469
    Opinion delivered March 6, 1972
    [Rehearing denied April 10, 1972.]

      Sam L. Anderson, for appellant.

      Ray Thornton, Attorney General; John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Leo Thompson, appellant herein, was convicted by a jury of the crime of burglary and his punishment assessed at two years confinement in the Arkansas Department of Correction. Thompson was also charged as an habitual criminal, it being alleged that there were five prior felony convictions, and the jury, after sitting again, and hearing the evidence of these prior convictions, retired, and fixed his punishment in this second verdict at twenty-five years confinement in the Arkansas Department of Correction. From the judgment so entered, appellant brines this appeal. For reversal, five points are listed, though the first three all relate to the contention that there was no substantial evidence to support the conviction.

The proof reflected that Officers Wells and Nelson of the Texarkana, Arkansas, Police Department were on routine patrol on the night of November 7, 1970, when they observed appellant breaking into the Lion Service Station at East and Edwards Street in Texarkana a short time after midnight. Both officers heard glass break, and observed Thompson sticking his hand through the glass of the door to the building. Wells observed Thompson with his right hand inside the front door extended to the lock trying to get the door open. The officers, who were in a patrol car, drove to the next block, turned and came back to the entrance of the Lion Station, at which time appellant started to walk off. According to the officers, Thompson had been drinking, but was not drunk, and had a cut on his right hand. The proof reflected that the door could not be opened from either the inside or outside without a key, and the evidence further reflected that the properties nearest the door, cans of oil, were approximately eight feet back from the door. It is this circumstance that occasions appellant’s principal argument, viz, that he could not have been guilty of burglary, because, since he had no key to open the door, and could not reach the cans of oil, there could have been no burglary, Thompson not being capable, under the circumstances, of committing a folony. Appellant cites Anderson v. State, 84 Ark. 54, 104 S. W. 1096, where this court said:

“The ‘breaking’ disclosed by these facts was not sufficient under our statute to constitute the crime of burglary. * * * The statute does not change the character of the ‘breaking’ that was essential at common law to complete the offense. Such breaking at the common law was “any disrupting or separating of material substances in any enclosing part of a dwelling house, whereby the entry of a person, arm, or any physical thing capable of working a felony therein may be accomplished.’ * * * The essentials of the above definition as to the ‘breaking’ must be met by proof before the crime of burglary by ‘breaking’ is complete. The proof in this case falls short of it. There was no ‘opening or mode of entrance’ here by which a felony could have been committed within the building, [citing case] The only opening into the building was the hole in the door, and it is not shown that it was possible to abstract anything through this opening, or that any latch or fastening could have been reached whereby to effect an entrance. Therefore the judgment has no evidence to support it, and the cause is reversed and remanded for new trial.”

Terry v. State, 238 Ark. 426, 382 S. W. 2d 361, quotes the above language from Anderson, and the case was reversed on the basis that appellant was not guilty of burglary, but in both Anderson and Terry, it is mentioned that there was no entry into the house. In Anderson, the hole in the door was too small to admit a hand, and in Terry, the opinion reflects that all of Terry’s acts occurred on the outside, and no part of his body was ever inside the house. This is quite different from the case at hand where the state’s proof is positive that appellant’s hand was sticking through the glass door, and was thus inside the building.

While we are not convinced by appellant’s argument that there was no breaking, a discussion of that contention is unnecessary since there was substantial evidence that there was an entry, and we have held that both a breaking and entry need not be shown to convict of burglary; either is sufficient to constitute the crime. As early as 1903, this court held that it was not necessary to prove both a breaking and entering to make out a case of burglary. See Minter v. State, 71 Ark. 178, 71 S. W. 944; also Ingle and Michael v. State, 211 Ark. 39, 198 S. W. 2d 996. Of course, this is in accord with our statute, Ark. Stat. Ann. § 41-1001 (Repl. 1964) which defines burglary as follows:

“Burglary is the unlawful breaking or entering a house, tenement, railroad car, automobile, airplane, or any other building, although not specially named herein, boat, vessel or water craft, by day or night, with the intent to commit any felony or larceny.”

In 2, Anderson, Wharton’s Criminal Law and Procedure, § 421 p. 42, under a discussion of “Entry” we find:

“At common law, burglary requires an entry into the dwelling place. Accordingly, it is not burglary when the defendant merely breaks open the outer shutter, but does not get his hand through the glass pane.
Any penetration, however slight, of the space within the house by the defendant, or by any part of his body or by any instrument inserted for the purpose of perpetrating a felony therein, is a sufficient entry. Accordingly, it is a sufficient entry when the defendant reaches his finger, hand, or arm inside the house, for the purpose of committing the intended felony, such as taking out property.”

It will be noted from our statutory definition of the crime of burglary, and from the authority just cited, that a principal element in breaking or entering is the fact that the act is committed with the intent to commit a felony. Here, certainly the facts testified to by the officers support such a finding, and there is no testimony to the effect that the entry of the hand into the building (which was for the purpose of unlocking the door so that the entire body of appellant could enter) was done with any intent to enter the building for some other purpose than that of committing a felony.

It follows that there is no merit in appellant’s contention that the facts do not support the crime of burglary.

It is next urged that the manner of presenting prior felony convictions constituted error. Ark. Stat. Ann. § 43-2330 (Repl. 1964) reads as follows:

“The duly certified copy of the record of a former conviction and judgment of any court of record for imprisonment in the penitentiary against the person indicated or the certificate of the warden or other chief officer of any penitentiary of this State or any other State in the United States, or the Federal Government or of any foreign country, or of the chief custodian of the records of the United States Department of Justice, containing the name and the fingerprints of the person imprisoned as they appear in the records of his office shall be prima facie evidence on the trial of any person for a second and subsequent offense, of the conviction and judgment of imprisonment in the penitentiary and may be used in evidence against such person.”

In the instant case the Circuit Clerk of Miller County produced the official records involving the prior convictions of appellant; these of course, were originals and not copies. The clerk, and the men who preceded him as clerk, these latter having served as circuit clerk during earlier convictions, identified the records, and in addition, identified appellant as the person convicted in the earlier cases. Of course, in numerous instances, prior convictions occurred in some other state, and the purpose of the statute requiring the certificate is the protection of the defendant, i. e., to prevent incompetent, erroneous, or mistaken evidence relating to prior convictions from being offered. Certainly, the evidence offered in this case was stronger and unquestionably more reliable than certified copies and appellant could not possibly have been prejudiced by the admission of these original records and testimony.

Finally, it is urged that the Arkansas Habitual Criminal Statute is unconstitutional, it being urged that, in this case, the twenty-five years imprisonment constitutes excessive, cruel, unusual, and inhumane punishment. This same contention was raised in Dolphus v. State, 248 Ark. 799, 454 S. W. 2d 88, and was rejected.

Affirmed.

Brown, J., not participating.

       See Ark. Stat. Ann. § 43-2330.1 (Supp. 1971).

       See Ark. Star Ann. § 43-2328 sub-section (3) (Supp. 1971).

       Thompson told the officers that he received the cut on his hand from a fight at a “drive-in”.

      Our emphasis.

      The appellant did not testify.

      All prior convictions used occurred in Miller County.


author: George Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v C. L. SMITH et ux
    5-5772
    477 S.W. 2d 170
    Opinion delivered March 6, 1972

      Thomas B. Keys, Charles Yingling, Jr. and Hubert Graves, for appellant.
    No brief for appellees.
   George Rose Smith, Justice.

The highway department, in appealing from an $8,500 verdict and judgment in this condemnation case, argues two grounds for reversal.

First, it is insisted that the landowners’ expert witness, W. L. Robertson, had no reasonable basis for his valuation, because he relied upon certain comparable sales without being able to show that those purchasers bought the lands for the same purpose that constituted the highest and best use for the tract now in issue. That same argument was rejected recently in an opinion that was delivered after the appellant’s brief in the case at bar was printed. Ark. State Highway Comm. v. Hawkins, 251 Ark. 718, 474 S.W. 2d 673 (1972). We adhere to the view that we expressed there: “If the two tracts can fairly and reasonably be said to be comparable, then the other person’s subjective intent in making his purchase is not of controlling importance.”

Secondly, after the witness Robertson, a real estate dealer, had stated his qualifications as an expert, counsel for the highway department asked permission to conduct a further voir dire examination before the witness gave his testimony in chief. We cannot say that the trial judge’s denial of that request was error. The trial court must necessarily be accorded a wide discretion in controlling the examination of witnesses. Ark. Stat. Ann. § 28-703 (Repl. 1962); Ark. State Highway Comm. v. Dipert, 249 Ark. 1145, 463 S.W. 2d 388 (1971); Beam v. Parsons, 245 Ark. 380, 432 S. W. 2d 768 (1968). In the court below, counsel for the condemnor searchingly explored the witness’s qualifications on cross-examination. The jury was apparently impressed, for the verdict was less than half the figure fixed by the witness as just compensation. We can find in the trial court’s ruling neither any abuse of discretion nor any prejudicial effect upon the condemnor’s rights.

Affirmed.


text:
    J. Clary ATKINSON et al v. Henry B. MEANS, Judge
    5-5805
    477 S.W. 2d 178
    Opinion delivered March 6, 1972

      Howard, Howard ¿r Howard, for petitioners.

      Glover & Glover, for respondent.
   George Rose Smith, Justice.

This is a petition for a writ of prohibition, by which the sheriff of Dallas county and the surety upon his official bond seek to prohibit the circuit court of Hot Spring county from hearing a motion for judgment against the petitioners. The question, which is one of venue, has already been decided adversely to the petitioners.

The facts are simple. In 1968 Southern Credit Corporation obtained a judgment against Bobby Erwin and others in the circuit court of Hot Spring county. A writ of execution was issued upon the judgment and sent to the petitioner as sheriff of Dallas county, where Erwin is said to reside. Later on Southern Credit, alleging that the sheriff had failed to levy the execution upon Erwin’s property, filed a motion for summary judgment in the Hot Spring circuit court. Sheriff Atkinson appeared specially in that proceeding and contested the court’s jurisdiction, asserting that the suit should have been brought against him in Dallas county. Upon the trial court’s holding that it had jurisdiction to proceed, the present petition was filed.

Each side cites authority for its position, but there is actually no conflict in our cases. The petitioners rely upon Ark. Stat. Ann. § 50-1001 (Repl. 1962), which provides one remedy against a sheriff who fails to serve a writ of execution directed to him. We have held that an action under that statute is an independent plenary suit which must be brought in the county where the cause of action arose. Bledsoe v. Pierce-Williams Co., 147 Ark. 51, 226 S. W. 532 (1921).

There is, however, another statute which provides a summary remedy in the court which entered the original judgment and issued the writ of execution. Ark. Stat. Ann. §§ 29-207 and -208. That statute provides for a three-day notice to the sheriff or other officer, who can resist the motion for judgment and demand a jury trial. In a situation identical to the one now before us, we sustained the trial court’s jurisdiction over the sheriff of another county, upon this reasoning:

“This judgment was in the court in Perry County, and, unless the judgment creditor can file his motion in Perry County, where the judgment is, he would be deprived of the remedy given him by statute. We therefore hold that the court in Perry County had jurisdiction, and that it is the only court where a motion for a summary judgment against these defendants could be filed. There is no judgment in any other court.” Perry County v. Gatlin, 186 Ark. 116, 52 S. W. 2d 626 (1932).

In that opinion we also distinguished cases such as those now relied upon by petitioners, pointing out that such suits were independent actions that had to be brought in the county where the cause of action arose. It is evident that in a two-county situation such as that now presented, one party or the other must be subjected to the inconvenience of having to litigate in a county other than that of his residence. We adhere to our holding in the Perry County case, supra, which governs this one.

Writ denied.


author: Lyle Brown, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Margaret M. MANNING
    5-5806
    477 S.W. 2d 176
    Opinion delivered March 6, 1972

      Thomas B. Keys, John Stroud and Kenneth R. Brock, for appellant.

      Young ir Patton, for appellee.
   Lyle Brown, Justice.

This is an eminent domain case. Appellee Margaret Manning’s rural home and egg farm consists of a twenty-six acre tract and is located on U. S. Highway 71 some ten miles south of Texarkana. The south side of her land borders on the highway. The commission condemned a strip of land completely across the south side of the property for widening and improvement purposes. Appellant advances four points for reversal which we shall enumerate and discuss, setting out under the points other necessary facts requisite to an understanding of the issues.

Point I. The trial court erred in overruling the commission’s motion in limine that the landowner not be permitted to introduce any evidence as to loss of a commercial egg business by reason of the taking. We need not pass on the admissibility of such testimony because none was introduced. The landowner, by way of background information, merely testified that she was in the egg-laying business and that she marketed her eggs at retail in Texarkana. In her before-and-after value testimony she related only the before and after values of the land and buildings as a unit and based that opinion on what she thought it was worth on the open market.

Point II. The trial court erred in refusing to give the commission’s requested Instruction 7-A. That instruction told the jury that the value of a business being operated on the property should not be considered as an element of compensation. For two reasons there is no merit in the point. In the first place, as stated under Point I, there was no evidence of the value of loss of business. Secondly, the court fairly instructed the jury on the measure of just compensation.

Point III. The trial court erred in not striking the testimony of P. M. Brown relating to damages to the landoiener’s house due to the noise from traffic and the hazard of trucks running onto appellee’s property. The new right-of-way line runs within some eight feet of the homesite and takes in substantial shrubbery, including approximately twelve trees. In all, the taking reduced the landscaping from 75 or 100 feet to some eight feet near the home. A well, butane tank, and chain link fence were also in the taking. The house was described as “propped up on a knoll at the edge of the right-of-way.” The witness testified that as a part of the diminution value he took into consideration the proximity of the home to the highway, including noise and the hazard of vehicles running off the highway and onto the property. Witness Brown did not attribute a specific figure for those elements. He said he was considering the entire setting, just as would a prospective purchaser. We are not cited to any case in which we have said that a landowner, who, due to the widening of the highway, has his residence placed upon the precipice of the right-of-way, is not entitled to compensation therefor. See Clark County v. Mitchell, 223 Ark. 404, 266 S. W. 2d 831 (1954).

Point IV. The trial court erred in not striking the landowner’s testimony as to values. Appellant relies heavily on Arkansas State Highway Comm’n. v. Darr, 246 Ark. 204, 437 S. W. 2d 463 (1969). That case and this case are easily distinguishable. Mrs. Darr gave values without any reference to the fair market value of her lands; she had never lived on the property; and she said she would not sell it for any price because her husband told her to keep it. On the other hand, Mrs. Manning had lived on her property for some twenty-six years. She said she was, in a general way, acquainted with the sale of lands in the community. Having lived there for so long and engaged in the business which afforded her a livelihood for the same number of years, it cannot be questioned that she was intimately acquainted with the property.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Louis A. DOLLINS et al v. HARTFORD ACCIDENT & INDEMNITY CO.
    5-5796
    477 S.W. 2d 179
    Opinion delivered March 6, 1972

      Whetstone ir Whetstone, for appellants.

      Smith, Williams, Friday, Eldredge <b Clark; By: W. A. Eldredge, Jr. and /. D. Watson, for appellee.
   John A. Fogleman, Justice.

Appellant contends that the circuit court erred in directing a verdict against him in his suit, individually and as administrator of his wife’s estate, against the appellee as liability insurance carrier for St. Vincent’s Infirmary in Little Rock. Appellant’s complaint sought recovery for damages sustained by appellant’s wife, Bertie'Evelyn Dollins, as the result of a fall while she was a patient in the hospital. Mrs. Dollins was originally a plaintiff in the action, but she died before the trial from causes unrelated to her fall.

On August 13, 1970, Mrs. Dollins suffered a stroke. She was taken to St. Vincent’s Infirmary for treatment, where she was kept in the intensive care unit for 14 days. On August 27, 1970, she was placed in a semiprivate room. Medication was being given her for the prevention and control of seizures and the four side rails on her bed were raised. No rails or other restraints were provided across the foot of the bed. On August 28, at 11:00 p.m., Mrs. Sandra DeLeuil, a registered nurse employed by the hospital, came on duty as the nurse in charge of the unit in which Mrs. Dollins was a patient. After a routine check of Mrs. Dollins’ room at 2:00 a.m. on August 29, this nurse noted on the patient’s chart: “Awake for medication. Appears confused. All four side rails up.” The nurse gave the patient the anti-convulsant medication which had been prescribed and left the room. At 3:35 a.m. Mrs. Dollins was found on the floor at the foot of her bed, with blood on her face, hands and gown and cuts about her face. Among her injuries were cuts in her gums from her dentures which had not been removed from her mouth. The dentures were broken in the fall.

This nurse knew that the patient had undergone seizures and that she had been restrained during the period she was confined in the intensive care unit. For the purpose of making chart entries, the nurse used three classifications for patients whom she found confused. They were: confused, slightly confused and very confused. She described the stage noted as “confused” to be a degree more than slightly confused and different from “disoriented.” She did not have an independent recollection whether the patient was disoriented, but relied entirely upon the chart notation she made. To have used the word “disoriented” would have meant to her that the patient did not know who she was, where she was or what was going on about her.

The patient’s physician had not ordered any restraints on her except for the four side rails which were raised. The matter of other restraints at the time rested in the discretion of the nurse in charge. She did not have to have the permission of a doctor before using a safety belt on a patient. Mrs. DeLeuil had on some occasions applied belts or other such restraints on patients. One of the devices she had used and which was available in the hospital was a posey belt. This was described by her as a strap which goes around a patient’s waist to be fastened under the bed or to its sides in a manner which permits the patient to turn from side to side, but prevents him from getting out of the bed. The belt can be applied in five minutes. It was the nurse’s opinion that when she observed the patient at 2:00 a.m. there was no need for the use of such a belt, but one was applied by direction of the attending intern after the patient’s facial wounds had been treated.

Mrs. DeLeuil was the first person to reach Mrs. Dollins after the fall. The patient told the nurse that she was going to the bathroom when she fell. According to the nurse, the use of four side rails was a normal precaution for a patient Who was subject to seizures. The room was equipped with a call light by which the nurse could be summoned. The nurse did not recall having received any call from the patient on the night in question. Mrs. DeLeuil knew that Mrs. Dollins was physically able to get out of bed. In this nurse’s judgment, based upon her experience, additional restraints are not necessary for a “confused” patient, unless he had previously been trying to get out of bed or there were other factors indicating the likelihood of some unusual hazard to the patient’s safety. She considered that restraints tended to disturb a patient so that he could not get needed rest. Mrs. DeLeuil said that in four years’ experience in the capacity in which she was acting on the night of Mrs. Dollins’ injury, she had never had a patient subject to seizures who had not been successfully prevented by the side rails from falling out of bed. She testified that in the case of most seizures there would be a jerking movement or thrashing around of the patient’s body, but that she had never seen such an active seizure that a patient could get up and jump out of bed. In her opinion, there was no need for restraints on Mrs. Dollins other than the four bed rails.

Dr. Henry Johnson had admitted Mrs. Dollins to the hospital because of his diagnosis of possible stroke. He testified that she had seizures on admission. He did not remember whether she had undergone others while in intensive care. Her removal to the semiprivate room was an exercise of his discretion. In his opinion, restraints other than the bed rails were not indicated prior to Mrs. Dollins’ fall. He testified that restraints are ordered when a patient is extremely agitated or combative, and he felt that restraints often increased a patient’s agitation. Although Dr. Johnson described the patient as being somewhat confused throughout her hospital stay and recalled no dramatic change, he felt that she was continuously improving mentally after she was released from intensive care.

Appellant contends that he had met his burden of proof under the doctrine of res ipsa loquitur, if not otherwise, making the directed verdict erroneous. He argues that the patient, the safety restraints and the nurse were all instrumentalities under the control of the hospital. He relies upon our decision in Martin v. Aetna Casualty & Surety Co., 239 Ark. 95, 387 S. W. 2d 334, where we said that when a patient was injured as a result of the collapse of a leg rest on a wheel chair furnished by a hospital, the doctrine applied as a rule of evidence. We do not agree that the rule applies in this case, however. We stated the conditions under which res ipsa loquitur comes into play in Southwestern Bell Tel. & Tel. v. Bruce, 89 Ark. 581, 117 S. W. 564, and followed that formula in Martin and other cases. We require, in addition to the duty of the defendant to plaintiff, to use due care, that (1) the injury be caused by an instrumentality under the control of the defendant, (2) the accident which caused the injury be one that, in the ordinary course of things, would not occur if those having control and management of the instrumentality use proper care and (3) there be absence of evidence to the contrary. We are unable to say from the evidence adduced that the accident that befell Mrs. Dollins was one that, in the ordinary course of things, would not have occurred if those having control and management had used proper care. Dean Prosser teaches that before res ipsa loquitur can be applied, there must first be an inference that someone must have been negligent and then the burden of proof is upon the plaintiff to show that the negligence was that of the defendant and to trace the injury to a cause or specific instrumentality for which the defendant was responsible or show that he was responsible for all reasonably probable causes. He also says that there must be an absence of any action on the part of the injured party contributing to the accident, and that the doctrine will not apply until the plaintiff has satisfactorily accounted for the conduct of the injured party. Prosser, Law of Torts, Fourth Edition (1971), pp. 214-225.

It is, of course, common knowledge that many falls occur when there is no negligence or fault on the part of anyone. Furthermore, it does not seem to us that a patient who could .tell the nurse what she was doing and where she was going was in such a mental state that her efforts to go over the foot of the bed in order to go to the bathroom were involuntary, or that she became so completely under the control of hospital personnel as to make her an “instrumentality” under the hospital’s exclusive control contributing to her own injury, or make the hospital responsible for all reasonably probable causes of the injury. Her state of confusion, as designated by the nurse, did not sufficiently explain the patient’s own conduct contributing to the injury. In addition, it is important to remember that the doctrine of res ipsa loquitur is founded upon the availability of evidence of the true cause to a defendant but not to the plaintiff. Sauter v. Atchinson, 250 Ark. 697 (1971), 466 S.W. 2d 475. While this foundation is not the ultimate test of the doctrine’s application, nevertheless we cannot say that the evidence of the cause of Mrs. Dollins’ fall was not fully available to her or to her husband. Her death did not bring the doctrine into play.

Fundamental to the application of the doctrine is the necessity that there must have been an inference of negligence on the part of the defendant as a proximate cause of the injury. Appellee certainly owed a duty to Mrs. Dollins. It was best defined in Durfee v. Dorr, 123 Ark. 542, 186 S. W. 62. It was the duty of the hospital to give her reasonable care and attention and to have that knowledge of the necessities of her case which would result from such care and attention and from the possession of ordinary skill in her treatment. In other words, it was the duty of the hospital to see that the patient had such attention as her condition apparently made necessary. St. Vincent’s Infirmary was bound only to the degree of care proportionate to the danger to be apprehended, judged by the condition of affairs before the accident occurred.

When we apply this standard to the facts in this case, it is clear to us that the directed verdict was properly granted, because of appellant’s failure to show that there was negligence, or an inference of negligence, on the part of the hospital. Foreseeability is an essential ingredient of negligence, as recognized in Durfee. Conduct becomes negligent only as it gives rise to appreciable risk of injury to others, and there is no negligence in not guarding against a danger which there is no reason to anticipate. North Little Rock Transportation Co. v. Finkbeiner, 243 Ark. 596, 420 S. W. 2d 874.

The evidence presented by appellant was not sufficient to show that there was any reason for the nurse or any of the hospital personnel to anticipate that Mrs. Dollins would, either in the throes of a seizure, or in an effort to go to the bathroom, fall from the foot of her bed. There was no evidence showing any reason to even anticipate that she would make an effort to get out of the bed in spite of the side rails.

This test of foreseeability has been recognized and applied in a like manner in similar actions against hospitals in other jurisdictions. See Davis v. Springfield Hospital, 204 Mo. App. 626, 218 S. W. 696 (1926); Breeze v. St. Louis, S. F. Ry. Co., 264 Mo. 258, 174 S. W. 409 (1915); Spivey v. St. Thomas Hospital, 31 Tenn. App. 12, 211 S. W. 2d 450 (1947), cert. denied by Tennessee Supreme Court, March 5, 1948, reh. denied, May 3, 1948; McElroy v. Employers’ Liability Assurance Corp., 163 F. Supp. 193 (D. C. Ark. 1958).

This case is distinguishable from Durfee in that the injured patient there found outdoors on the ground just below an upstairs hall door was known to have been very desperately ill, the building was in darkness, all hospital doors were unlocked, the patients could go about as they pleased and the jury \yas justified in believing that the attending nurse had been asleep. There was no evidence to warrant an inference of negligence here.

Appellant also argues that the hospital owed the patient that degree of care which would have prevented the fall. This would not only improperly make the test for negligence restrospective, but would make the hospital an insurer of the patient’s safety, inconsistent with our holding in Durfee and contrary to well established and widely recognized legal principles. See 40 Am. Jur. 2d 869, Hospitals, § 27; 41 C. J. S. 350, Hospitals, § 8c(3).

We affirm the judgment of the circuit court.


author: J. Fred Jones, Justice.

text:
    Rayburn T. ADAMS v. Juanita ADAMS
    5-5792
    477 S.W. 2d 183
    Opinion delivered March 6, 1972
    /. H. Carmichael, Jr., for appellant.

      Ivan Williamson, for appellee and cross-appellant.
   J. Fred Jones, Justice.

This is an appeal by Rayburn T. Adams and a cross-appeal by Juanita Adams from a decree of the Baxter County Chancery Court wherein the chancellor awarded a divorce to Mr. Adams on his counterclaim against his wife, Juanita Adams, and awarded $125 per month as alimony to Mrs. Adams. The chancellor also ordered a division of the personal property between the parties and ordered a sale of the real property and the proceeds divided, if the parties were unable to agree on its division in kind. Mr. Adams relies on the following points for reversal:

‘That the part of the decree or order awarding alimony and a division of the personal property fails to comply with the requirements necessary for a valid decree.
The court erred in ordering the property sold in violation of the statutes of procedure for partition.”

On her cross-appeal Mrs. Adams relies on the following points:

‘The trial court erred in granting appellant (crossappellee) a divorce.
The trial court erred in refusing cross-appellant’s motions to dismiss cross-appellee’s cross-complaint at the end of his testimony and after all testimony had been adduced;
The trial court erred in failing to award cross-appellant at least $225 monthly support money.”-

Since we must reverse and remand this case under the cross-appellant’s first and second points, a discussion of the other points is unnecessary.

This action was instituted when Mrs. Adams filed suit for separate maintenance. The chancellor entered a temporary order for $100 per month support for Mrs. Adams. Mr. Adams filed his answer and counterclaim for an absolute divorce. As grounds for divorce he alleged general indignities consisting of rudeness, neglect, open insult, unmerited reproach, intentional incivilities, all habitually and systematically pursued to the extent that his condition in life has become intolerable. Mrs. Adams filed an answer to the counterclaim denying the alleged grounds for divorce.

Mrs. Adams testified that she and Mr. Adams were married in December, 1945, and that she thought they were getting along fine until September 5, 1970. She said that on that date she and Mr. Adams had breakfast together and discussed the purchase of a new truck. She said that Mr. Adams then went to town to pick up some lumber to finish a hay shed, and that when he returned from town, she went with him to the hay field where he told her he did not love her any more and that he wanted a divorce.

Mr. Adams testified that the reason he asked Mrs. Adams for a divorce was that she just fussed and “yakked” at him all the time. He said that she would fuss about money, buying equipment, fixing up their place and about any of the necessary things they needed. Mr. Adams testified that he is an iron worker and that on different occasions when he would leave for work Mrs. Adams would say: “I hope you splatter that iron and get hurt today.” He also testified to threats of physical violence made to him by Mrs. Adams. These accusations were denied by Mrs. Adams. Most of the other evidence in the case was directed to the extent and value of the property owned by the parties and to Mr. Adams’ income and Mrs. Adams’ needs. None of the witnesses who testified knew anything about the difficulties between Mr. and Mrs. Adams.

We agree with Mrs. Adams that the chancellor erred in granting a divorce to Mr. Adams. After Mr. Adams had rested his case, the record reveals as follows:

“MR. WILLIAMSON: Your Honor, at this time I move that the cross complaint be stricken in its entirety. There is nó evidence whatsoever that would entitle this Court to grant either party a divorce and the only corroborating evidence we have before the Court today is that this defendant deserted her on September 5th.
THE COURT: Hasn’t the Legislature by statute eliminated the need for a corroborating witness?
MR. CRAIN: Yes, sir.
MR. WILLIAMSON: As far as that is concerned, this is a contested case at this time, and we certainly think there should be some corroboration, other than the Defendant’s own word. We would like to put a witness on for one matter of rebuttal.”

We agree with Mrs. Adams that there was no corroboration of Mr. Adams’ testimony as to his grounds for divorce. Apparently this case was tried and the issues determined under the erroneous impression that the 1971 legislature had amended the divorce laws to eliminate the necessity for corroboration of the plaintiff’s testimony in proving grounds for divorce in Arkansas. The divorce laws were amended in this area by Act 398 of 1969, now Ark. Stat. Ann. § 34-1207.1 (Supp. 1971), which provides as follows:

“Hereafter in uncontested divorce suits corroboraboration [corroboration] of plaintiff’s ground or grounds for divorce shall not be necessary nor required.
This does not apply to proof as to residence which must be corroborated, as heretofore, and does not apply to proof of separation and continuity of separation without cohabitation, which must be corroborated, as heretofore.”

It will be noted, however, that the above statute applies to uncontested divorce suits. It does not apply to contested divorce suits.

In the case at bar, Mrs. Adams did contest the petition of Mr. Adams in which he counterclaimed for divorce. This case, therefore, is controlled by the numerous decisions of this court in which we have held that a divorce will not be granted upon the uncorroborated testimony of a party to the suit. Sisk v. Sisk, 99 Ark. 94, 136 S. W. 987; Shelton v. Shelton, 102 Ark. 54, 143 S. W. 110; Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486; Leonard v. Leonard, 200 Ark. 1189, 138 S. W. 2d 784; Stearns v. Stearns, 211 Ark. 568, 201 S. W. 2d 753; Saugey v. Saugey, 228 Ark. 110, 305 S. W. 2d 856.

We have held that in contested divorce suits the corroborative evidence may be relatively slight since the purpose of the requirement is to prevent collusion. Fitzgerald v. Fitzgerald, 227 Ark. 1063, 303 S. W. 2d 576. But there is no corroboration in the case at bar, so we conclude that the chancellor’s decree wherein a divorce was granted to Mr. Adams must be reversed.

As to the $125 per month alimony awarded by the chancellor, he had originally awarded temporary support money in the amount of $100 per month on Mrs. Adams’ original petition for separate, maintenance. The award of alimony falls with the divorce decree but the temporary award is not disturbed by this opinion and shall remain in full force and continue until changed under proper order or decree of the chancellor.

Since the counterclaim for divorce was apparently tried and the decree entered on the erroneous theory that a change in the statutory law had dispensed with the necessity for evidence that otherwise would have been required, we have no way of determining whether the case was fully developed or not. So, in the exercise of our discretion in equity cases, we remand this case to the Baxter County Chancery Court for such further development as the case may merit and require, consistent with this opinion. See Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d 728.

Reversed and remanded.


text:
    GIBSON’S DISCOUNT CENTER v. Lois BORNMANN
    5-5843
    477 S.W. 2d 171
    Opinion delivered March 6, 1972

      Spencer ¿r Spencer, for appellant.

      Brown, Compton ir Prewett, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case involving two separate accidents in the course of separate employments, with both accidents resulting in injury to the same area of the spine followed by separate surgical operations following each accident. The real question involved is whether the injured employee’s present disability is a result of the second accident or whether it is a continuation of the disability resulting from the first accidental injury. The referee found that the claimant sustained a new injury as a result of her second accident and has suffered a permanent partial disability in the amount of 25% to the body as a whole. He awarded compensation on that basis. The full Commission reached the same conclusion on review, and the Commission’s award was affirmed by the Union County Circuit Court on appeal. The respondent-employer has appealed to this court and relies on the following points for reversal:

'The finding of a new injury as opposed to an aggravation of a pre-existing injury is not supported by substantial evidence.
Assuming, but not admitting, that there was a new injury, an award of twenty-five (25%) per cent permanent partial disability benefits is not supported by substantial evidence.”

The facts in the record appear as follows: The claimant-appellee, Mrs. Lois Bormann, sustained an injury to her back on March 30, 1965, when she lifted a heavy object while employed as a clerk by the Franklin Stores Corporation. Following a period of conservative treatment for this injury, Mrs. Bornmann underwent surgery for removal of the 4th and 5th lumbar discs in her spine. After her healing period ended Mrs. Bornmann filed a claim with' the Commission for permanent and total disability, but before the claim was heard by the Commission she and the respondents in that case entered into a joint petition for final settlement of the claim under the provisions of Ark. Stat. Ann. § 81-1319 (1) (Repl. 1960). The joint petition set out that the claimant was contending for permanent total disability; that the medical evaluations ranged from 10% to 25% partial disability to the body as a whole; that the petitioners had agreed on the sum of $5,013 in final settlement on joint petition, and that this sum amounted to more than the highest estimate of permanent partial disability made by any of the doctors. The joint petition was approved on July 7, 1966, and the claimant was paid thereunder.

Following her settlement on joint petition, Mrs. Bornmann returned to work for Franklin Stores in December, 1967, and worked two weeks before Christmas. She testified that during the two weeks in December, 1967, she did the samé work as a clerk at the Franklin Stores as she did prior to her original injury; that in December, 1967, she felt that she was in fine physical com dition and had made application for full time employment with the Sterling Department Stores, as well as other stores, and had applied for full time employment again at Franklin.

Mrs. Bornmann was employed by the respondent, Gibson’s Discount Center, on January 28, 1968, as an assistant in taking inventory and on that date she tripped over some rope and fell, injuring her neck, knees- and back. Mrs. Bornmann testified that she continued to improve following her injury from the 1965 accident; that she was able to work around the house and mow the lawn without difficulty; that since her last injury and additional surgery she is unable to squat down and has difficulty getting in and out of the bathtub; that her knees will not work; that she has severe headaches and that it is necessary to wear a back brace in order to get around at all.

On July 17, 1968, Dr. E. R. Hartmann, who performed the previous operation, performed additional surgery on Mrs. Bornmann’s back for laminectomy at the L-4 L-5 intervertebral disc space with removal of residual 4 th lumbar disc. Spinal fusion was done at L-4 L-5 and S-l. Dr. Hartmann reported:

'The patient was found to have a small bulging disc in this area; this was removed by curettage and rongenning [sic] through a hole in the posterolongitudinal ligament. Attention was then directed to the fifth interspace where the procedure was repeated. This space showed residual scarring from the previous surgery.”

Dr. Hartmann testified that when he examined Mrs. Bornmann on January 28, 1968, he was not sure that she had aggravated her back condition, but that when he reexamined her on January 31, he felt that she had aggravated her previous back injury. He testified that, in a disc operation some of the disc material ranging up to 20% of it, is left in the disc space because it is impractical to try to remove all of it through one. incision and the remaining disc material fuses to some extent with scar tissue forming a fibrocartilage following a disc operation. He testified that following a disc operation such as the first one he performed on Mrs. Bornmann, the operation site is more susceptible to further injury and that he was of the opinion that Mrs. Bornmann suffered an aggravation of the previous condition at the same operative site. He says that on the first operation he removed material at both the 4th and 5th disc spaces on the left side, and that on the second operation he removed bulging material from the same disc spaces on the right side. He testified that around 20% of the disc material is left following an operation; that after the area completely heals there is really more than 20% of material in the disc space caused by scarring. He testified that it is difficult to determine what disability might result from a particular incident without a pre-existing underlying injury or condition, but that in Mrs. Bornmann’s case she did receive a reinjury to the site of the previous operation. On cross-examination Dr. Hartmann testified that following Mrs. Bornmann’s surgery as a result of her first injury, he estimated her permanent partial disability as 10% to the body as a whole, and that following her second injury and subsequent surgery he estimated her permanent partial disability as 25% to the body as a whole.

The thrust of the appellant’s argument under its first point is that Mrs. Bornmann’s surgery and disability following her fall while working at Gibson’s were simply continued results of her injury she sustained in 1965 while employed by Franklin Stores. The appellant argues that Mrs. Bornmann’s claim against Gibson’s was without merit since the entire consequences of her first injury were properly and legally chargeable to her former employer, Franklin Stores, and that her contention in her joint petition for settlement following that accidental injury was completely consistent with the fact that her present condition is the result of the original injury. The appellant relies on our decision in Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 528, in support of this contention, but the appellee properly distinguishes the Moss case on its facts from the case at bar. In the Moss case the claimant was an oil field worker engaged in heavy work and was under the medical care of a general practitioner following a back injury. He was referred to an orthopedic specialist who examined him and referred him back to the attending physician with the recommendation that he be permitted to return to work on a trial basis in order to determine whether he would have any permanent disability. The attending physician immediately dismissed the claimant as completely recovered and the first day he attempted to work following his dismissal by the attending physician, his back gave way under the stress of his work.

There is no question that Mrs. Bornmann suffered an accidental injury when she tripped over rope and fell while employed by Gibson’s and there is no question that she injured her knees, neck and back in that fall. Whether the injury to her back in that fall was, to an area previously injured or weakened by previous injury is of little importance. The real question is whether her medical treatment, surgery and disability following the second injury were the result of the first or second injury. From the medical reports and testimony of Dr. Hartmann, Mrs. Bornmann complained of left leg pain following her first injury and of right leg pain following the second injury. Bulging discs were found and removed from the left side following the first injury and they were found and removed from the right side following the second injury. We conclude that there was substantial evidence supporting the Commission’s finding that Mrs. Bornmann’s medical treatment, surgery and disability following her second injury were a result of the second injury.

As to appellant’s second point, the difficulty in this case, as in most cases of permanent partial disability to the body as a whole, lies in the difficult task of measuring the disability by the inability to earn wages and attempting to project the nebulous results into the unclear future. This case falls within the provisions of Ark. Stat. Ann. § 81-1313 (f) (2) ii (Supp. 1969) which provides as follows:

“(f) Second injury: In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto:
# #
(2) If an employee has a prior permanent disability not occasioned by an injury resulting while in the employ of the same employer in whose employ he received a subsequent permanent injury, the amount of compensation for the subsequent injury shall be fixed as follows:
# * *
ii. If the subsequent injury is one that is not scheduled under section 13 (c) [subsection (c) of this section], the injured employee shall be paid compensation for the healing period and for the degree of disability that would have resulted from the subsequent injur' if the previous disability had not existed.”

The referee’s opinion which was adopted by the full Commission contains the following language:

‘‘Claimant testified that she is 52 years of age, has a ninth grade education, has been a saleslady for 20 years. Claimant states further since her last operation in July, 1968, she has had very bad nerves and can’t do any type of work around the home.
T. W. Bornmann, husband of the claimant, also testified his wife was very nervous and was unable to do anything around the house.
■* # ■*
Claimant has a permanent partial disability of no greater than 25 per cent to the body as a whole.
March 30, 1965, claimant sustained a back injury, which resulted in back surgery in the very same area of the back as herein involved. Claimant was given in the area of 10 per cent impairment rating to the body as a whole as a result of this injury. The matter was concluded by Joint Petition on July 7, 1966, and settlement made by payment of $5,735.45 which included $722.45 for the attorney of the claimant and this Joint Petition, made a part of this record, alleges total disability as the basis for the Joint Pedtition of July 7, 1966.”

The medical reports and testimony relating to both injuries ranged in estimates of permanent partial disability from 10% to 25% of the body as a whole and after reviewing the medical reports the referee continued:

“The medical impairment of the doctors, of course, is only one means of determining the degree of disability. On basis of the testimony presented, lay and medical, there appears to be no sound reason why claimant cannot return to the duties of a saleslady within a reasonable time for convalescence.
The testimony reveals that following her surgery of 1965, claimant was given an impairment rating, alleged permanent partial disability by means of a Joint Petition, and after consummation of settlement was able to resume her duties as a saleslady.
* * * It appears to this Referee that within a reasonable time for convalescence claimant should again be motivated to return to the duties of a saleslady. The medical impairment, from close review of all medical evidence, reveals to this Referee that the degree of impairment of 25 per cent to the body as a whole is quite ample for a disability rating as a result of this injury and resulting surgery.
* * #
Also on the question of this second injury in relation to the first injury in regard to credit, the Referee finds this case, under the previously stated findings, comes under the provisions of Section 81-1313 (f) (2) ii which provides that in cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto, if the subsequent injury is one that is not scheduled under the section the injured employee shall be paid compensation for the healing period and for the degree of disability that would have resulted from the subsequent injury if the previous disability had not existed.
ji, jj, jt.
TV "S'

The respondent will pay to the claimant $58.50 per week beginning on January 29, 1968, and continuing until March 19, 1969. Beginning on March 20, 1969, respondent will pay claimant $38.50 per week forward for ll2Vz weeks which represent 25 per cent permanent partial disability and all payments accrued shall be paid in one lump sum.”

Mrs. Bornmann and her husband were the only ones who testified as to what Mrs. Bornmann can and cannot do since her last injury. A recitation of their testimony is not necessary to the disposition we make of this case.

The provisions of the statute, § 81-1313, supra, are clear and we add nothing to our interpretation as set out in Davis v. Stern-Rogers Construction Co., 248 Ark. 344, 451 S. W. 2d 469. Dr. Hartmann performed the surgery following both injuries in this case and the referee apparently resolved the doubts in favor of the claimant as was his duty under the statute, and found that permanent partial disability following the appellee’s first injury was rated at the lowest estimate made by Dr. Hartmann in the amount of 10%, and that following her second injury she suffered the highest degree of permanent disability also estimated by Dr. Hartmann as well as other physicians as 25%. We find that there is substantial evidence to sustain the referee’s findings on both disabilities.

The referee’s opinion indicates that he did not overlook the second injury statute, supra, but it is apparent that he based his findings as to disability on the medical evidence and found no evidence, or found insufficient evidence, to base any of the award on loss in earning capacity over and above the medical disability rating. Consequently, the record is not clear as to how the Commission arrived at a 25% permanent partial disability under the referee’s finding in the light of § 81-1313 ii, supra.

If Mrs. Bornmann did have a 10% permanent partial disability following her first injury, and as a result of it, and if she does have a 25% permanent partial disability following her second injury, it logically follows that under the statute she should be paid compensation for the degree of disability that would have resulted from the second injury if the previous disability had not existed. Apparently the employer and compensation insurance carrier in the first injury recognized as much as a 10% permanent partial disability as a result of that injury but Mrs. Bornmann contended that her disability was total and permanent. The medical estimates ranged from 10% to 25% and the matter was disposed of by joint petition and the percentage of disability was not determined. Although the referee and the Commission found that Mrs. Bornmann was rated as 10% permanently disabled following the first injury, the opinion does not say what her permanent partial disability actually was following her first injury.

The judgment is reversed and this cause is remanded to the circuit court with instructions to remand to the Commission for a determination of the degree of disability, if any, suffered by Mrs. Bornmann as a result of her first injury, and for the degree of disability, if any, that would have resulted from her subsequent injury if the previous disability, if any, had not existed.

Reversed and remanded.


text:
    INSURANCE COMPANY OF NORTH AMERICA v. Betty S. LEMON
    5-5780
    477 S.W. 2d 187
    Opinion delivered March 6, 1972

      Putman, Davis ir Bassett, for appellant.

      Fitton, Meadows <h Adams, for appellee.
   Conley Byrd, Justice.

The issue on this appeal is whether the decedent, John Floyd Lemon, was covered by an employer’s group insurance policy issued by appellant Insurance Company of North America to Morrison-Knudsen Company, Inc. The trial court held that the decedent was covered by the policy and entered judgment for the face amount of the policy, the statutory penalty and attorney’s fee. For reversal appellant contends:

“I. The trial judge erred in holding that the decedent, John Floyd Lemon, was insured under the master group policy issued by the appellant to his employer, Morrison-Knudsen, Inc.
II. Even if the decedent was eligible for insurance at the time of his death, there can still be no recovery against appellant under the master group policy.”

The policy provision in question provides that “with respect to applications received after policy effective date, individual insurance shall begin on the first day of the month coinciding with or immediately following three months of service.”

The following facts are stipulated:
1. The master policy was issued July .1, 1963;
2. Decedent worked for Morrison-Knudson Company from March 21, 1961 to April 12, 1961, from March 3, 1962 to July 31, 1962, and from December 27, 1969, to January 23, 1970, when he was killed by a landslide;
3. Decedent made written application for insurance to Morrison-Knudsen Company on or about December 1, 1969;
4. Decedent’s net earnings from December 27, 1969, to January 23, 1970, in the amount of $1,-015.01 were paid in two installments, the first being on February 2, 1970, and the last on February 23, 1970;
5. Morrison-Knudsen Company did not withhold the premiums from decedent’s wages nor notify appellant that decedent was an insured.
6. Appellant in conjunction with Morrison-Knudson Company designed a pamphlet entitled “Voluntary Personal Accident Insurance” that was distributed to the employees of Morrison-Knudsen Company.
The portion of the pamphlet entitled "Voluntary Personal Accident Insurance,” that was abstracted provides: . <, -
“A NEW SOLUTION
Now, through this program of protection, eligible employees can provide for their family’s future security easily, quickly — TODAY!
You may select the amount of accidental death benefit (principal sum) you want.
You will become insured regardless of your health history.
You can pay the low premium, charges (based as they are on wholesale purchases) through easy payroll deductions....
“YOUR APPLICATION
. . . Just complete the application (s) (ink or typewriter, please) and return it to your Local Office Manager.”

Coleen Krall, an employee of Morrison-Knudsen, testified that her job was to run an accounting machine and to handle two insurance policies. She processed decedent’s application when it was received. At first, she thought decedent was a “rehire” (i. <?., an employee moving from one job to another within 30 days) and because of that belief she made the notation on the application showing the effective date to be 1 -i-70. After she received decedent’s records and found that decedent had not worked any time within the three months, she notified the job at Bougainville, and did not deduct insurance premiums nor list decedent as an insured with appellant. On direct examination the following occurred:

“Q. Now, if you would, in your own words so we can all understand, explain to the Court on a daily basis how you go about processing these applications or group insurance or for personal accident insurance that comes in from the employees and comes over your desk, what do you do?
A. I receive their application cards and we check their employment record, if they are available, and then I notify the job when to start deducting out of their checks.
Q. When they will be effective, is this your responsibility?
A. That is my responsibility.
Q. In January of 1970 were you generally familiar with any requirement of the Insurance Company of North America’s personal accident policies regarding the length of service?
A. They had to be employed consecutively three months.
MR. ADAMS: I am going to object at this point to her interpretation of this policy, that is one of the things that this Court has to do in this case is interpret this policy.
THE COURT: I didn’t understand him to ask the provisions of the policy. I understood the question to be ‘what was the policy of the Company.’
MR. BASSETT: Yes, that is what I asked. I don’t know who else could say what the policy of the Company was.”
Another portion of the policy provided:
“4-Premiums will be paid MONTHLY and shall be due and payable on the following premium due dates: 1st of each Month.
6-The Organization shall submit to the Company together .with the application premium therefor (a) An initial listing of eligible persons covered at the effective date of the policy (b) At monthly intervals thereafter, a listing of eligible persons added for coverage, and Insureds whose coverage terminated.”

Under the term “Additional Provisions” the policy also provided:

“Clerical Error: Clerical error by the Organization shall not invalidate insurance which would otherwise have been effective nor extend insurance which would otherwise have terminated under the terms and provisions of the Policy.”

POINT I. Appellant contends that under the policy language the three months service requirement must be satisfied after the application is received after the policy’s effective date. In oral argument it was also suggested that the policy requires three months consecutive service. We cannot agree with either contention. The law is that in the construction of insurance contracts, the policy must be construed most strongly against the insurer and in favor of the insured. Also that when the facts are undisputed, the construction is a question of law for the court, Wright v. Aetna Life Ins. Co., 10 F. 2d 281, 46 ALR 225 (1926); Equitable Life Assurance Society v. Meuth, 145 Ky. 160, 140 S. W. 157 (1911); and Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S. W. 2d 99, 57 ALR 615 (1927).

The section of the policy here in question provides:
“2-Persons eligible to become insured under this policy shall be all those described below, including any who become eligible during the term of the policy. Persons insured shall be those eligible persons for whom written application for inclusion under the policy shall have been made. With respect to applications received on or before policy effective date, individual insurance begins on policy effective date. With respect to applications received after policy effective date, individual insurance shall begin on the first day of the month coinciding with or immediately following three months of service. Eligibility shall cease automatically upon attainment of age 70 and coverage for any such Insured shall terminate on the renewal date next following the attainment of such age. Coverage of any Insured who ceases to be an eligible person as described below, for any reason other than age, shall terminate on the last day of the month in which eligibility ceases.” (Emphasis ours).

Nothing in the foregoing language requires or makes it mandatory that the three months service be consecutive, immediately precede the date of the application or that the three months must accrue after the application. Thus when we construe the policy language most strongly in favor of the insured and against the insurer, there is nothing to prevent the cumulation of different work periods to arrive at three months service. Neither is there anything in the policy that requires the three months service to be accumulated after the effective date of the policy. Actually the policy on its effective date only insured those employees who had made prior application. We can find nothing in the policy language that would have prevented an employee who made an application two days after the policy date from being covered under the policy on the first of the next succeeding month if he met the three months service requirements. We agree with the trial court that decedent met the three months service requirement.

POINT II. Here appellant contends that even if the decedent met the three months service requirement, there could be no coverage under the terms of the master policy because Morrison-Knudsen did not comply with the policy provision by submitting decedent’s name as an additional insured along with the applicable premium. We find no merit in this contention, for under the testimony of Coleen Krall, set out above, there is substantial evidence from which the trial court could have found that she performed only a ministerial duty under directions from appellant with reference to calculation of the three months service requirement. Thus by the very terms of appellant’s policy, decedent’s coverage would not have been invalidated by such clerical errors.

Appellant also suggests that there is no coverage because it never received the application. The proof is that appellant caused a brochure to be circulated to all employees informing them that the insurance could be easily and quickly acquired by completing the application and returning the same to the local manager. By appellant’s own witness, it was testified that decedent had done everything required of him to acquire the coverage. This same witness testified that if he had met the eligibility requirements, she, as the person in charge of issuing the certificates of insurance, would have issued such certificate. We can find no language in the policy as abstracted that requires the application to be returned to appellant. Rather it appears from their brochure and custom of handling the applications that the applications were turned in to the employer and that only the name of the employee and the applicable premium therefor were all that appellant ever expected to receive.

Appellant in support of its contentions, points to our case of Metropolitan Life Ins. Co. v. Thompson, 203 Ark. 1103, 160 S. W. 2d 852 (1942), where we held that the failure of the employer to include an employee in the monthly list of insured employees to Metropolitan precluded a recovery by the beneficiary. The policy there involved no provision with reference to “clerical errors” and if such provision had been involved, it would not have helped the beneficiary, since the employee was discharged when he brought a tort suit against his employer some months prior to his death.

It has been suggested that Coleen Krall’s failure to place insured’s name on the monthly list of eligible persons added for coverage was not a clerical error but an error in judgment. Here again appellant is met with the proof from its own witness from which the trial court could have found that she was a clerical employee and that in calculating the “three months service” she was following appellant’s requirements that the employee be “employed consecutively three months” rather than exercising any independent judgment of her own.

The fact that we held in Connecticut General Life Ins. Co. v. Speer, 185 Ark. 615, 48 S. W. 2d 553 (1932), that an employer, under a life insurance policy, is not an agent of the insurance company upon whom service of process could be had, does not mean that an insurance company can erroneously instruct the employer’s clerk with reference to computing a “three months service” requirement and then argues that the clerk was exercising a matter of judgment. Here there is evidence that Coleen Krall was a clerk in the employment of Morrison-Knudson who followed appellant’s erroneous instructions in computing the three months service requirement from the employer’s records. While the employer’s records showed that insured had three months prior service, the employer’s clerk erroneously computed the time and because of that error failed to certify insured as a person eligible for coverage. Thus the clerk’s error in the computing of the employer’s record was one caused by appellant’s own instructions and falls within the provisions of its policy that “Clerical error by the [Employer] shall not invalidate insurance which would otherwise have been effective. ...”

Affirmed.

Brown, Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. Assuming, without conceding, that the policy provision defining eligibility for insurance is ambiguous and subject to the construction given it in the majority opinion, I must dissent because I find merit in appellant’s second point for reversal. The policy clearly requires that the application be received by the insurance company, not the employer, before there was coverage. The application signed by Lemon was addressed to the insurance company. Colleen Krall was an employee of Morrison-Knudsen, not of appellant. Appellant neither received this application nor Lemon’s name as one covered under the policy nor any premium.

Under these circumstances, the terms of the policy were not met, and there was no coverage. In Metropolitan Life Ins. Co. v. Thompson, 203 Ark. 1103, 160 S. W. 2d 852, we quoted, with approval, the following A. L. R. headnote to Magee v. Equitable Life Assurance Soc., 62 N. D. 614, 244 N. W. 518, 85 A.L.R. 1457 (1932):

Where such “terms and conditions” (in the group or .master policy) require that the names of those insured in the group life insurance policy be certified to the assurance society by the employer, and premiums for such employee paid monthly, the failure to include such employee in the list insured and to pay premiums upon insurance for him precludes recovery against the assurance society upon the aforesaid certificate. .

See also, Hanna v. Mt. Vernon Life Ins. Co. of New York, 260 F. 2d 244 (8th Cir. 1958).

The majority opinion necessarily invokes, without saying so, two inappropriate premises to reach its conclusion. By attempting to classify Colleen Krall’s acts as ministerial, the “clerical error” provision is invoked. I submit that hers was no clerical error, if indeed it was an error. It could only have been an error involving judgment, which cannot be a clerical error. The term is defined and illustrated in Black’s Law Dictionary, Fourth Edition, p. 319, as follows:

Generally, a mistake in writing or copying. 1 L. Raym. 183; Los Angeles Shipbuilding & Dry Dock Corporation v. Los Angeles County, 22 Cal. App. 2d 418, 71 P. 2d 282; Franklin v. State, 240 Ala. 57, 197 So. 58, 59.
It may include error apparent on face of instrument, record, indictment or information, In re Goldberg’s Estate, 10 Cal. 2d 709, 76 P. 2d 508, 512; error in respect of matters of record, Shotwell v. State, 135 Tex. Cr. R. 366, 120 S. W. 2d 97; errors, mistakes, or omissions by clerk, writer, counsel, or judge which are not the result of exercise of judicial function; Pacific Finance Corporation of California v. La Monte, 64 Idaho 438, 133 P. 2d 921, 922; Wilson v. City of Fergus Falls, 181 Minn. 329, 232 N. W. 322, 323; failure of clerk to enter order, Keller v. Cleaver, 67 P. 2d 131, 133, 20 Cal. App. 2d 364; omission in statutory provision, Craig v. State, 164 S. W. 2d 1007, 1008, 204 Ark. 798; order fixing tax rate below statutory rate. In re Jagnow’s Estate, 266 N. Y. S. 785, 788, 148 Misc. 657; placing of case on calendar without notice, New England Furniture & Carpet Co. v. Willcuts, D. C. Minn., 55 F. 2d 983, 987; purported order incongruous and irrelevant to surrounding recitals, Carpenter v. Pacific Mut. Life Ins. Co. of California, 14 Cal. 2d 704, 96 P. 2d 796, 799; signature by judge to judgment which does not express judicial desire or intention, Bastajian v. Brown, 19 Cal. 2d 209, 120 P. 2d 9, 12.

In Williams v. State, 229 Ark. 42, 313 S. W. 2d 242, we held that the action of a circuit court clerk in failing to insert the recital that two sentences would run consecutively in a penitentiary commitment because the judge’s docket notation did not so indicate and the judge was of the erroneous opinion that the two sentences would automatically run consecutively was not clerical error. There is certainly a close parallel between this situation and that. The omission of Lemon’s name from any list submitted to appellant was not a clerical error but was a deliberate act based upon a judgment decision by one who was in charge of administering the insurance programs of the employer and not just a clerk or machine operator.

The other premise which I consider unsound is the treatment of either Colleen Krall, or Morrison-Knudsen or both as if one or the other or both were appellant’s agent. While there is a division of authorities on the question, we have held that they are not. Connecticut General Life Insurance Co. v. Speer, 185 Ark. 615, 48 S. W. 2d 553.

I would reverse the judgment and dismiss the cause.

I am authorized to state that Mr. Justice Brown joins in this dissent.