text:
    Melba Heston HOOD, Executrix v. Carl F. WELCH and WELCH MOTOR COMPANY
    73-268
    507 S.W. 2d 503
    Opinion delivered April 8, 1974
    [Rehearing denied May 6, 1974.]

      Howell, Price, Howell & Barron, for appellant.

      Reinberger, Eilbott, Smith & Staten, for appellees.
   George Rose Smith, Justice.

This was originally an action brought by a landlord, E.W. Hood, to recover damages from his tenant, Carl F. Welch, on the ground that the tenant’s negligence or violation of law caused a fire which extensively damaged the leased building. Most of the,salient facts were stated in our opinion upon the first appeal and need not be repeated. Hood v. Welch, 249 Ark. 1159, 463 S.W. 2d 362 (1971). There we held that the trial court erred in entering a summary judgment for the tenant, because the lease was sufficiently ambiguous to give rise to a question of fact about whether the parties intended to exempt the tenant from liability for fire damage caused by the tenant’s negligence.

Hood, the landlord, died before the trial. The cause was revived in the name of his executrix, now the appellant. The jury’s verdict was for Welch, the tenant. At the trial the court allowed Welch to testify about conversations with Hood, over the executrix’s objection that the dead man’s statute makes such testimony inadmissible. Ark. Const., Schedule, § 2 (1874). That ruling presents the principal issue on appeal.

Counsel for Welch insist that the executrix was not entitled to invoke the dead man’s statute, because pretrial interrogatories and requests for admissions were directed to Welch and answered during Hood’s lifetime. Had those inquiries been propounded by the executrix after Hood’s death, the protection of the statute would undoubtedly have been waived under our holding in Smith v. Clark, 219 Ark. 751, 244 S.W. 2d 776 (1952), where we followed the majority rule in such a situation:

“It has been held in many cases that the taking of the adverse party’s deposition amounts to calling him as a witness whether the deposition is introduced in evidence or not. Some of these cases were reviewed by the Oklahoma Court in Cox v. Gettys, 53 Okla. 58, 156 Pac. 892. The court held that the incompetency of testimony imposed by the dead man’s statute was waived even though the deposition was never actually filed, saying: ‘Any other construction of the statute would enable one party to search the conscience of his adversary, drag to light his private papers and other evidence, and then repudiate the result, if the experiment proved unsatisfactory.’ The court also approved the following language by the Missouri court in Rice v. Waddill, 168 Mo. 99, 67 S.W. 605: ‘Can it differ in principle that, in this case, defendants took plaintiff’s deposition, had it duly certified and thereby, in the language of counsel, “heard what she said and that was all he wanted to know,” and then suppressed the deposition; whereas, in the cases cited, the deposition was similarly taken and filed, but not used by the party taking it? Can a party thus trifle with the machinery of the law and avail himself of it if it suits his purposes, and reject it if it does not, and yet escape all the consequences of his acts? We hold he cannot.’ ”

We adhere to the holding in Smith v. Clark, but to apply the principle of that opinion to the case at bar would carry the rule beyond the reason for its existence. Here Hood’s counsel simply propounded questions to Welch while both parties were living — a commonplace discovery procedure. It is plain that Hood’s attorney was not attempting, in the language of Smith, to search the conscience of his adversary and then repudiate the result, or to trifle with the machinery of the law. Thus, during Hood’s lifetime, the situation bore no resemblance to that in Smith v. Clark.

Nor did the adventitious fact of Hood’s death bring the case within the reasons underlying the Smith decision. The two purposes of the dead man’s statute, which applies only to statements and personal transactions, are to guard against the survivor’s temptation to give false testimony with impunity and to put the litigants on terms of equality when death has deprived the personal representative of the opportunity to present his decedent’s version of the transaction. Jones on Evidence, § 20:22 (6th ed., 1972); Barnhart, Theory of Testimonial Competency and Privilege, 4 Ark. L. Rev. 377 (1950). Both those objectives are still pertinent to the case at hand, even though Hood’s attorney directed inquiries to Welch before Hood’s death.

The question has troubled us primarily because the contrary conclusion has been reached in the only other state, Pennsylvania, where the precise question seems to have arisen. Brown v. Saladoff, 209 Pa. Super. 263, 228 A. 2d 205, 35 A.L.R. 3d 952 (1967); Brennan v. Bell, 37 Pa. D. & C. 2d 707 (1965); Treharne v. Callahan, 288 F. Supp. 131 (W.D. Pa. 1968). There the courts, citing some oí' the same authorities that we relied upon in Smith v. Clark, simply extended the rule to the fact situation that is now before us. For the reasons already stated we do not consider that extension to be sound and must therefore decline to follow the Pennsylvania decisions.

As a second point for reversal the appellant contends that the court should not have submitted to the jury the matter of construing the parties’ lease, in an instruction which told the jury that doubts and uncertainties in the lease should be resolved against the party who was found to have prepared it. Of several objections made at the trial the only one now argued is that we held upon the former appeal that the rule in question is not applicable, because the lease was negotiated by the parties.

We do not so read our prior opinion. There we said: “Appellee argues that in the event of ambiguity, the uncertain terms should be construed most strongly against the person drafting the instrument; however, it appears disputed between the parties whether appellant unilaterally devised the lease or whether it was a product of negotiation. ” We take that sentence to mean not that the lease was undisputedly a negotiated one but that there was an issue of fact in that regard. Since the case is to be retried we should add that, depending upon the proof, the interpretation of the lease may or may not be a proper issue for the jury. See Security Ins. Co. of Hartford v. Owen, 252 Ark. 720, 480 S.W. 2d 558 (1972); Triska v. Savage, 219 Ark. 80, 239 S.W. 2d 1018 (1951).

Reversed.

Harris, C.J., not participating.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    James Ray ROBERTSON v. STATE of Arkansas
    CR 73-145
    507 S.W. 2d 513
    Opinion delivered April 8, 1974

      Johnson & Johnson, by; Cecil E. Johnson Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Richard Matlison, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

James Ray Robertson was convicted of first degree murder and sentenced to life imprisonment. Court-appointed counsel filed a brief in which he listed five points for reversal. Appellant sought to have his counsel dismissed and prayed that he be permitted to file his own brief. We did not discharge counsel but we did permit appellant to file a brief purportedly drafted by him. He lists seven points for reversal. Also, in accordance with Act 333 of 1971, Ark. Stat. Ann. § 43-2725 (Supp. 1973), we have reviewed all objections made by appellant during the course of the trial to determine whether there were prejudicial errors in the rulings on those objections. See Rorie v. State, 215 Ark. 282, 220 S.W. 2d 421 (1949).

It would serve no useful purpose to recite an abstract of all the evidence. Viewed in the light most favorable to the State, as we must do, the evidence overwhelmingly showed that on the night of March 23, 1973, a party was in progress at a place of business commonly known as “The Cafe” in Ogden; that beer was being freely consumed by some of the many patrons, including appellant; that at the time appellant approached the cafe there were a considerable number of people gathered outside witnessing a scuffle between two friends, David Lee Grimes and Willie Walker; that appellant turned away and as he started for his car, made a remark to the effect he would stop the scuffle when he returned; that within minutes he returned to the scene and fired a shot in the air; and that he then “leveled down” on David Lee Grimes, who was backing away, and fired a fatal shot into Grimes’ forehead. Some of the other evidence will necessarily be referred to in discussing the many points for reversal.

In the brief Filed by appellant’s counsel there are five points for reversal. The first point is that as a matter of law the court should not have submitted to the jury the question of first degree murder. It is urged that “there is a lack of evidence of the part of the State to show malice, willful, deliberate, premeditated killing, or specific intent to kill the deceased”. The State’s evidence related that appellant frequently engaged in target practice with a pistol; that shortly before the homicide appellant made the statement that he was “going to shoot me somebody before the night is over”; that appellant shot once in the air and then shouted “I take him”, whereupon appellant “leveled down” on the deceased, who was unarmed. That evidence, along with other factors which could be enumerated, was certainly sufficient to support a finding of a willful, deliberate, malicious, and premeditated killing. Seward v. State, 228 Ark. 712, 310 S.W. 2d 239 (1958). The necessary elements of premeditation and deliberation may be inferred when the circumstances clearly warrant such an inference. Walker v. State, 241 Ark. 300, 408 S.W. 2d 905 (1966). Appellant strongly urges that there was no showing of ill will between appellant and deceased, hence he concludes there could be no malice. A showing of ill will for the deceased was not necessary. In the sudden killing of a human being with a deadly weapon and without provocation, malice may be implied. McAdams v. State, 25 Ark. 405 (1869).

Appellant next contends that the verdict of guilty of first degree murder was contrary to the evidence. We do not agree. Numerous eye witnesses testified that they saw appellant shoot David Grimes with a pistol. The autopsy showed that death was caused by a pistol wound. One witness testified that appellant was heard to say he was going to shoot someone that night. A number of witnesses testified that Grimes did not provoke appellant, and that Grimes in fact backed away when appellant fired the first shot in the air. Appellant gave Sheriff Thrash the pistol with which Grimes was shot when the sheriff asked for the death weapon.

The third point advanced is that the court erred in not giving an instruction on involuntary manslaughter. There is no merit in this argument. “Any supposed error for failure to charge as to involuntary manslaughter was rendered harmless by the fact that the jury convicted Newsomé of second degree murder.” Newsome v. State, 214 Ark. 48, 214 S.W. 2d 778 (1948).

The fourth point is that the State’s proof does not establish the allegations of the information. We are not told in what manner the proof was insufficient, no argument being advanced on this particular point. However, the record shows proper venue, the time and place of the killing and the corpus delicti, and as we have previously pointed out, the record contains substantial evidence of first degree murder.

The final point advanced by appellant’s counsel is that the punishment of life imprisonment is “barbarous, harish, cruel, and inhumane and should be reduced to twenty-one years”. The quoted statement is based on the argument that the proof does not warrant a first degree murder conviction. From what we have heretofore said about the proof it should be manifest that we do not believe the point to have merit. We have no authority to reduce punishment in a case where the verdict is sustained by the evidence.

Thus far we have discussed the points raised in the brief filed by counsel for appellant. As heretofore stated, we permitted appellant to file his pro se brief. We proceed to discuss those points.

A witness testified that appellant was heard to say he was going to shoot someone that night. This was not hearsay, as claimed by appellant. “Besides”, says appellant, “this is a weekend expression of most Black people”. The weight to be given the expression was for the jury.

Appellant argues it was improper to permit witnesses to testify that he threatened a church congregation in the community with a pistol. Appellant put his general reputation in issue and the court instructed the jury that the testimony should go only to that issue. We see no merit in the point.

Next appellant says a portion of the record shows that his court-appointed attorney acknowledged that he did not competently represent appellant. We have read the excerpt cited us and do not so interpret it.

Appellant states he was told by certain court officials that if he did not appeal this case, a recommendation would be made after appellant served seven years and that appellant might receive a parole. Appellant attached two letters to his brief to show that the statements were made. Those statements were probably unwise; nevertheless, we perceive no prejudice because appellant rejected the advice and perfected his appeal.

We have reviewed the objections made by appellant’s counsel in the course of the trial and find no prejudicial error in those rulings. There were only three objections during the course of the trial but in deference to defense counsel we should point out that in numerous instances the trial judge did not wait for an objection; the judge quickly admonished the witness not to answer the question. It should also be pointed out that, as reflected by the abstract, appellant’s court-appointed counsel was not derelict in the cross-examination of the State’s witnesses.

Affirmed.


author: John A. Fogleman, Justice.

text:
    ARKANSAS BLUE CROSS-BLUE SHIELD, Inc. v. W. D. TOMPKINS, Special Administrator of the Estate of William C. LEE, Deceased
    73-285
    507 S.W. 2d 509
    Opinion delivered April 8, 1974

      Wright, Lindsey & Jennings, by: H. William Allen, for appellant.

      Rose, Nash, Williamson. Carroll & Clay, P.A., by: James H. Wilkins, Jr., for appellee.
   John A. Fogleman, Justice.

Appellee made claim against Arkansas Blue Cross-Blue Shield for nursing services rendered his decedent William C. Lee, who was a patient in St. Vincent’s Infirmary in Little Rock for a total of 58 days on two different occasions during August, September, October and November 1971 at the direction of his physician, S. William Ross, M.D. The claim was made on a contract under the Federal Employee Health Benefits Program, administered . by appellant. This suit was brought after appellant paid $675 for nursing services for the first ten days of the hospitalization but denied liability for any greater amount.

After hearing the testimony of Dr. Ross and that of Dr. George Mitchell, Medical Director and Vice-President for Medicare and Medical Services of Arkansas Blue Cross-Blue Shield, the circuit judge directed a jury verdict for appellee in the amount of $3,082.50, a penalty of $369 and costs including art attorney’s fee of $1,000. Appellant contends that this action was improper, asserting that the trial judge had erroneously interpreted the contract and had failed to submit an issue of fact to the jury. In reviewing that action, we must view the evidence in the light most favorable to the appellant, without regard to credibility of the witnesses, and draw every reasonable inference in its favor. Gramling v. Baltz, 253 Ark. 352, 485 S.W. 2d 183; Little Rock Land Co. v. Raper, 245 Ark. 641, 433 S.W. 2d 836. When we do this, we find that there was substantial evidence to present a question of fact for the jury.

The pertinent contract sections follow:
PART 3
SUPPLEMENTAL BENEFITS
Article I — DEFINITIONS
(a) Subject to the exclusions and limitations set forth in Article III, covered medical expenses are usual, customary, reasonable and necessary charges incurred by a subscriber which are in excess of those for which benefits are provided in Parts I and II of this contract for the following services and supplies performed or prescribed by a physician:
* # *
(10) Services of an actively practicing nurse as follows:
(a) In a hospital, services of a professional registered nurse (R. N.) or services of a licensed practical nurse;
* * *
tide III — EXCLUSIONS AND LIMITATIONS
No benefit shall be provided under this Part for:
* * *
(p) Services of a special nurse which do not require the skills of a professionally trained nurse but consist primarily of services such as bathing, feeding, exercising or entertaining the patient; giving medication, or acting as a companion or sitter.

It is undisputed that appellee would be entitled to recover if it were not for the exclusion in Article III (p). We do not consider that section to be ambiguous, so rules of construction relating to resolution of doubts relied upon by appellee are inapposite. We take the clause to mean exactly what it says, i.e., that services of any nurse attending the beneficiary are excluded from the benefits payable under the policy if, regardless of the identity and qualifications of the person rendering them, they do not require the skills of a professionally-trained nurse, but consist primarily of services such as bathing, feeding, exercising or entertaining the patient, giving medication, or acting as a companion or sitter. The critical question turns upon a determination whether the services for which the claim was made fall into this excluded category.

Dr. Ross, concededly an expert in the field of internal medicine with a background of considerable experience, research and study pertaining to arthritis and lupus erythematosus, was Lee’s treating physician. According to his diagnosis, Lee’s diseased condition was of a type from which it was possible that he could develop pathological fractures from normal, everyday activities, i.e., walking, sitting, reaching. Lee had brain trouble which involved periods of confusion during which he would be irrational, unreasonable and unresponsible and would, on occasion, be found going about his house while unclothed. Dr. Ross determined that the patient was unable, because of pain, to roll over in bed or to reach beyond his bedside. Lee could not be left alone because of the danger of his fracturirig bones.

Dr. Ross said he had prescribed nurses around the clock to assist in reaching treatment goals of elimination of Lee’s confused mental state, of bringing about a recovery from pain and of rehabilitating the patient so he could get back on his feet. This doctor attributed Lee’s need for nursing services to the patient’s inability to reach for a glass of water, or to call for a bed pan, and to the necessity for someone to attend to his every need, particularly during periods of confusion when Lee could not roll over in bed. According to Dr. Ross, a Licensed Practical Nurse has training in rolling a patient in bed, in giving him water without drowning him and in managing a bed pan for a patient with soft bones. Dr. Ross testified that he expected to get oral information from Lee’s nurses as to how Lee was moving in bed, the extent of his discomfort, his ability to do exercises and the feelings and impressions of the nurses about him. Ross stated that he gave no specific written orders to the nurses on how to handle this patient, but did record that the patient had a fresh fracture, and a nurse with reasonable training would understand the necessity for special care. He admitted that the nurses’ notes on this patient did not indicate the type of services he expected from them during the first period of Lee’s hospitalization, except for the notation that the admission complaint was low back trouble. On the second hospitalization Dr. Ross’ written orders stated “May have L.P.N.’s around the clock.” He also admitted that all prescribed medication was to be administered orally. It was Dr. Ross’ opinion that Lee required the skills of professionally-trained nurses on all 58 days of his hospitalization.

Dr. Mitchell was the recipient of an award as the outstanding graduate in his class at the líniversity of Arkansas Medical School, a Diplómate of Internal Medicine since 1963, a former instructor in the Department of Medicine at the University of Arkansas, a partner of Dr. Ross at the Little Rock Diagnostic Clinic for seven years, and an admitted expert in internal medicine. It is his duty to review questionable claims when medical knowledge is required. He reviewed Lee’s medical records to determine whether the services of nurses required skill. According to Mitchell, it is traditional in medicine that the medical record is the key to what is happening to the patient and that great stock is placed in that record as truly and clearly reflecting what happens to the patient as to the care being given.

Dr. Mitchell gave examples of skills of registered and licensed practical nurses. They were: giving medicine in the vein or by shots; giving oxygen; inserting and placing catheters; dressing an open wound; feeding a patient through a tube in his stomach; using suction apparatus in the patient’s mouth or upper respiratory system. In his professional opinion, the services rendered by Lee’s private duty nurses were not covered by the contract, the services reflected by the medical records were not skilled services and the assurance of protection of the patient did not require skilled services rendered by a professionally-trained nurse. Mitchell testified that the medical records reflected no orders for any skilled services to the patient. In his opinion a lay person could have alerted the hospital nursing staff if the patient had difficulty or became unmanageable. He admitted that he had authorized the payment for nursing during the first 10 days of hospitalization, in spite of the fact that no skilled services were actually rendered, as a very liberal allowance, saying that it was possible that the skills of a professionally-trained nurse might have been necessary because one may be unable to anticipate what treatment is required in a case of this nature when the patient is first hospitalized.

When we draw all reasonable inferences favorably to appellant, we find the testimony of Dr. Mitchell to constitute substantial evidence tending to show that the services performed by the nurses attending Lee did not require the skills of a professionally-trained nurse.

Appellee contends that we should affirm the trial court because appellant had paid benefits for services of registered or licensed practical nurses during previous periods of hospitalization of Lee, during which time the patient’s maladies and afflictions were similar to those at the time of his later admissions to the hospital, except that on one previous occasion he underwent minor surgery and on the other he was in a semi-comatose condition. Appellee based his argument upon proffered testimony to which the trial judge had sustained an objection. Appellee argues, however, that this action by appellant estopped it from denying this claim. It is sufficient to say that the admitted exceptions could very well be the basis for a factual distinction which would eliminate any apparent inconsistency in appellant’s interpretation of the contract at different times. At any rate, this issue was not raised in the pleadings, and the proffer of proof seems to have been made in chambers after the court had directed the verdict.

The judgment is reversed and the cause remanded for a new trial.

Jones and Byrd.JJ., dissent.

Harris, C.J., not participating.


author: J. Fred Jones, Justice.

text:
    Joseph CALLUM v. FARMERS UNION MUTUAL INSURANCE Company
    73-295
    508 S.W. 2d 316
    Opinion delivered April 8, 1974
    [Rehearing denied May 13, 1974.]

      Paul K. Roberts, for appellant.

      Charles A. Wade, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Joseph Callum assigning as error the refusal of the Bradley County Circuit Court to award statutory penalty, attorney’s fee and costs against the appellee Farmers Union Mutual Insurance Company in a suit by Callum against the insurance company which resulted in a judgment in favor of Callum for the full face value of $5,000 on a fire insurance contract.

The facts are briefly these: Lonnie Callum was a widower at the time of his death on September 15, 1970, and was survived by six sons and four daughters. Prior to his death Lonnie Callum had procured a fire insurance policy from the appellee insurance company in the amount of $5,000 on a small home he owned. In August, 1970, prior to Lonnie’s death, a premium came due on his policy and Lonnie being financially unable to pay the premium, his son Joseph, who was visiting him at the time, did pay the premium and the policy was renewed with “Lonnie Callum &/or Joseph Callum” as the named insured. The policy contained a provision as follows:

“The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made. ...”

The policy also contained a provision as follows:

“. . . and within sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following: the time and origin of the loss, the interest of the insured and of all others in the property, the actual cash value of each item thereof and the amount of loss thereto, all encumbrances thereon, all other contracts of insurance, whether valid or not, covering any of said property, any changes in the title, use, occupation, location.”

As already stated, Lonnie Callum died on September 15, 1970, and the dwelling house and contends were totally destroyed by fire on May 31, 1973. On August 3, 1973, Joseph Callum filed his complaint in circuit court alleging the issuance of the policy, the death of Lonnie Callum, the destruction of the property, and the coverage under the policy as above set out. Joseph alleged in his complaint that he had given the defendant insurance company notice of loss and had executed a proof of loss as required by the terms of the policy, but, that notwithstanding the notice and proof of loss, the company had failed and refused to pay the loss and damage or any part thereof. Joseph then prayed judgment in the amount of $5,000, together with statutory penalty of 12%, a reasonable attorney’s fee and costs.

On August 17, the insurance company filed an answer admitting the issuance of the policy, the death of Lonnie Callum, the occurrence of the fire and destruction of the insured property on May 31, 1973, and admitted that it was liable under its policy for the sum of $5,000. It alleged that it had tendered the payment of the amount it owed under the policy and was not liable for penalty and attorney’s fee. The insurance company tendered the amount of $5,000 into the registry of the court with its answer.

The case was submitted to the trial judge sitting as a jury and on September 26, 1973, the trial court ordered that the $5,000 deposited in the registry of the court be paid to Joseph Callum without prejudice to his right to appeal on other points contained in his cause of action, and on the same date the trial court entered judgment against the insurance company for the sum of $5,000. The court denied Joseph’s prayer for penalty, attorney’s fee and court costs and, as already stated, Joseph contends that the trial court erred in failing to assess penalty, attorney’s fee and court costs against the defendant insurance company.

The appellant, Joseph Callum, testified as to the death of his father, as above set out, and testified that he, Joseph, has five brothers and four sisters. He testified that after his mother’s death his father continued to live in the home alone until his death. He said that when he was visiting his father in August, 1970, he was advised by Mr. Henderson, an agent of the appellee insurance company, that his father was about to drop his fire insurance. He said he told his father he would start paying the insurance premium and that he did so. He said he made the premium payments when due and kept the policy in force until the house and contents were destroyed by fire on May 31, 1973. He said that following the loss, he first talked to Mr. Henderson when Henderson brought a company check in the amount of $4,500 to his home about 30 days after the loss. He said the check was made payable to Lonnie Callum’s estate and Joseph Callum. He said he told Mr. Henderson he did not think the check was made out properly, to the right person, and refused to accept the check. He said he had no further conversation with Mr. Henderson. He then testified that he went to his attorney’s office sometime in June, 1973, and that his attorney wrote a letter to the insurance company for him and he signed the letter.

On cross-examination Joseph Callum testified that his father owned the house involved and he supposed he owned the insured contents. He said he himself claimed no ownership interest in the property and did not know whether his brothers and sisters claimed any interest in the proceeds from the insurance or not. He restated, under questioning by the court, that his father died on September 15, 1970, and the fire occurred on May 31, 1973.

The letter above referred to, as written by Mr. Callum’s attorney, was dated June 27, 1973; was addressed to the insurance company, and reads as follows:

“This letter is to give you notice of loss in the dwelling and household goods insured by your policy No. 80, 087, said policy having been issued to Lonnie Callum &/or Joseph Callum. Both the dwelling and the household goods insured were total losses. This loss occurred on June 7, 1973.
This notice of loss is being given you in spite of the fact that your agent, Mr. Henderson of Rison, Arkansas, has already been notified of the loss.
Also, please consider this letter to be a demand for $4,-000.00 for loss of the dwelling and SI,000.00 for loss of the household goods.
I am enclosing Certified Copy of Death Certificate showing that my father, Lonnie C. Callum, the same person as Lonnie Callum, departed this life on 9-15-70.
You are invited to inspect the premises to determine that the losses are total.
Your immediate attention to this matter will be appreciated.”

Curtis Callum testified that he is a brother of Joseph Callum and was familiar with the fact that his father had a fire insurance policy on his home. He said he had met Mr. Henderson, the insurance company agent, at his father’s home, but was not present at the conversation between his father, Mr. Henderson and his brother Joseph when the policy was renewed, as testified to by Joseph. He said that when the house burned, he notified Mr. Henderson by telephone about three days after the fire. He said Mr. Henderson inspected the premises and that he told Mr. Henderson he was the administrator of his father’s estate. He said he had not been appointed administrator by probate court order, but had been designated by his father as well as his brothers and sisters to look after the estate matters.

Curtis testified that he received a check from the insurance company for 14,500, and that he and his brother Joseph took the check to their attorney (Mr. Roberts); that Mr. Roberts mailed the check back to Mr, Henderson along with a letter of transmittal signed by him (Curtis). He said that they did not think the check was made out properly. He said that after the first check was returned, he received another check for $5,000 made payable to Lonnie Callum’s estate and Joseph Callum. He said he also took that check to Attorney Roberts as he still thought it was not made out right. He said Mr. Roberts sent that check back with a letter of transmittal which he signed and which his attorney mailed. He said he had had no further conversation with Mr. Henderson since the check for $5,000 was returned.

It was stipulated that there was no legal administration on the estate of Lonnie Callum. The two letters referred to by Curtis as having been signed by him and mailed by his attorney were dated July 7, 1973,. and August 2, 1973. The one dated July 7 was addressed to agent. Henderson and reads as follows:

“Enclosed please find Check No. C3370 A, of the Farmers Union Mutual Insurance Company, in the sum of $4,500.00 made payable to the Lonnie Callum Estate.
I do not understand the beneficiary of the above numbered policy to be the Estate of Lonnie Callum. Therefore, I am returning this check to you.”

The other letter dated August 2 was to the insurance company in answer to a letter dated July 30, 1973, from the insurance company and was written on the bottom of the insurance Company’s letter in a space left for reply. The letter from the insurance company was signed by Richard Hopkins, Claims Adjuster, and recited as follows:

“Enclosed please find our check in the amount of $5,-000.00. This is in accordance with our conversation.”

The answer recited as follows:

“Dear Sirs:
Enclosed please find check in the sum of $5,000.00,
Check No. C 3582 A.
I have not been appointed Administrator of the Estate of Lonnie Callum.”

Following the above evidence and the argument of counsel, the court rendered a finding as follows:

“The Court finds that Joseph had, actually, a private contract of insurance after the death of his father with the Insurance Company, and that the Company didn’t want to pay it directly to him through a precaution, and I think rightfully so. The Court is treating the Answer as an Interpleader, and finds that the check should be delivered to Joseph Callum personally. And, that will be the Order of this Court. No attorney fee. No penalty.”

We are of the opinion that the trial court was correct in its refusal to assess statutory penalty, attorney’s fee and costs. The statutory provision for penalty and attorney’s fee, Ark. Stat. Ann. § 66-3238 (Repl. 1957), insofar as it pertains to this case, recites as follows:

“In all cases where loss occurs . . . and the . . . insurance company . . . liable therefor shall fail to pay the same within the time specified in the policy, after demand therefor, such corporation . . . shall be liable to pay the holder of such policy . . ., in addition to the amount of such loss, twelve per cent (12%) damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss. ...”

We have previously said that this statute is highly penal in nature and is to be strictly construed. National Fire Ins. Co. v. Kight, 185 Ark. 386, 47 S.W. 2d 576.

Under the state of the record in this case, we find it unnecessary to cite or discuss any of the numerous decisions of this court dealing with statutory penalties and attorney’s fees in cases of interpleader, or where question arises as to who is the insured, or who is entitled to the proceeds when more than one is making demand therefor, for the reason that in the case at bar the appellee insurance company did not deny it owed the claim and did not, at any time, refuse to pay it. On the contrary, the insurance company admitted it owed the claim and made an effort to pay it even before a claim was ever made by Joseph Callum. After suit was filed by Callum, the insurance company still admitted its liability and paid the full amount it owed into the registry of the court well within the 60 day period provided in the contract for the payment under it.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Jack WILLIAMS et al v. Jasper H. TULLOS et ux
    73-306
    507 S.W. 2d 516
    Opinion delivered April 8, 1974

      Haley & Claycomb, for appellants.
    No brief for appellees.
   Conley Byrd, Justice.

This is a boundary dispute involving the south 114 feet of an unfenced boundary in the City of Warren, Arkansas, between the lot owned by appellants Jack Williams and his sister Elizabeth Fullerton and the lot owned by the appellees Mr. and Mrs. Jasper H. Tullos. The boundary in dispute comprises the west boundary of appellants’ lot and the east boundary of appellees’ lot. By their pleadings appellants admit that the boundary does not come within the description contained in their deed but contend that they and their predecessors in title have been in “actual, open, visible, notorious, continuous, undisturbed and undisputed possession of the tract of land ...” for 25 years. The trial court generally fixed the boundary at a point 4.5 feet east of a garage and thence south to Bond Avenue. For reversal appellants contend:

“POINT I. The Chancellor erred in entering a decree based on the findings of his predecessor rather than reopening the case for trial de novo.
POINT II. The trial court erred in its finding that Tullos has claimed the land south of the garage either by deed or adverse possession for more than seven years.”

The record as abstracted clearly shows that the area here in controversy was never fenced. The appellees planted and maintained pine trees on the area after their acquisition in 1964. Appellees also maintained some flowers in the area. Appellant, Jack Williams, admits that appellees planted and maintained some of the flowers, although he says his mother planted most of them. The only surveyor who testified placed the actual survey line of the boundary either at the same location or slightly east of the point fixed by the trial court.

Since a great preponderance of the evidence shows that appellants have not been in adverse possession of the area here in controversy and that the boundary fixed by the court is within the area conveyed to appellees and their predecessors, we find no merit in either of the contentions raised by appellants.

Appellants had a survey made by occupancy of the different owners in the area and suggest that appellees’ eastern boundary should be fixed in relation to their western boundary. There are two answers to this suggestion. In the First place appellees’ neighbor to the west is not a party to the proceeding and consequently that boundary is not necessarily the same as that contained in appellees’ deed. In the second place appellants received their deeds by a metes and bounds description that referred to appellees’ boundary as a monument which, would take precedence over the distance set out in their deed. Furthermore, there is no showing that the property was conveyed by reference to apian or according to some definite proportion, Hughes v. Yates, 228 Ark. 860, 311 S.W. 2d 179 (1958). Consequently, the rule of apportionment is not applicable.

Affirmed.


text:
    Solomon FELDMAN Jr. v. STATE BOARD of LAW EXAMINERS
    73-307
    507 S.W. 2d 508
    Opinion delivered April 8, 1974

      Solomon Feldman Jr., pro se, for petitioner.

      Robert L. Rogers II, for respondent.
   Conley Byrd, Justice.

Following our opinion in Feldman v. Arkansas State Board of Law Examiners, 250 Ark. 286, 464 S.W. 2d 789 (1971), petitioner was again permitted to take the bar exam. He again failed. Also following the above decision tl^is Court entered a per curiam order permitting graduates of the then defunct Arkansas Law School to take the bar exam at any one of the next three examinations to be given by the State Board of Law Examiners, but not thereafter. That time too has elapsed. Petitioner, Solomon Feldman, Jr., now asks that he be given one more chance to take the bar examination. He does so on the ground that the court should create an exception for him one more time or that the court should remove the rule.

The validity of the rule revoking the approval of the Arkansas Law School as an accredited law school by virtue of our previous decision, supra, has now become the law of the case and consequently will not be reconsidered. Neither do we see why we should make another exception in favor of petitioner. In overruling the board in Feldman v. Arkansas State Board of Law Examiners, supra, we. in an effort not only to be fair but to appear to be fair, gave petitioner every benefit of every doubt. If we should again grant an exception there would be no reason to have the rule.

Consequently, petitioner’s application to take the bar one more time is denied.

Fogleman, J., not participating.


author: Frank Holt, Justice.

text:
    David MOORE v. STATE of Arkansas
    CR 73-165
    507 S.W. 2d 711
    Opinion delivered April 8, 1974
    [Rehearing denied May 6, 1974.]

      Harold L. Hall, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Richard Matlison, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of assault with intent to kill and his punishment was assessed at 31 1/2 years in the Department of Correction, pursuant to our Habitual Criminal Act, Ark. Stat. Ann §§ 43-2328 — 2330 (Supp. 1973). Present appellate counsel was then appointed. For reversal, appellant asserts that the lower court erred in allowing the prosecutor to ask appellant “[Wjould you lie to stay out of the Arkansas State Penitentiary?”

The appellant testified in his own behalf, against the advice of his trial counsel, and the following occurred on cross-examination:

[Deputy prosecuting attorney]
Q. All right. Mr. Moore, did you and Eddie Gilliam and Leon Gilliam and another person on March 23rd, 1973, rob Phillip Marlow out here on the interstate?
A. Whereabouts?
[Appellant’s attorney]
Your Honor, may I approach the bench?
[Appellant’s attorney]
That is a pending case coming up on Friday, which we object to the testimony and we move for a mistrial.
THE COURT:
Overruled.
Q. [Deputy prosecuting attorney continuing] Mr. Moore, I ask you again the same question: Are you guilty of robbing Phillip Marlow in the presence of Eddie and Leon Gilliam and another party on March the 23rd of this year in Pulaski County out here on the interstate?
A. No, sir.
Q. You’re not? Are you, and Eddie Gilliam and Leon Gilliam and another party guilty of robbing on March the 23rd of this year Tony Martinez in Pulaski County out here on the interstate?
A. No, sir.
Q. Mr. Moore, would [you] lie to stay out of the Arkansas State Penitentiary?
A. I pleaded guilty of—
[Appellant’s attorney]
Your Honor, I renew my objection made to the second question, also.
THE COURT:
Overruled.
Q. [Deputy prosecuting attorney continuing] Now, you’d like to stay out of the pen, wouldn’t you?
A. I pleaded guilty to the first charge that I ever went to the pen for, rape and robbery, and I don’t see why I should lie now.

Obviously, appellant’s trial counsel was renewing his objection to the inquiry concerning robberies and was not objecting to the question now before us. If a proper objection had been made, it would have called the matter to the court’s attention and allowed the court the opportunity to rule upon it. Therefore, we do not reverse since a proper objection was not made to the question now challenged on appeal.

It is well established that when a defendant testifies, like any other witness, he is subject to certain questions on cross-examination, when asked in good faith, to test the witness’ credibility, the state being bound by the answer. Butler v. State, 255 Ark. 1028, 504 S.W. 2d 747 (1974), and Turner v. State, 100 Ark. 199, 139 S.W. 1124 (1911). For instance, in Butler we again recognized our long standing rule that it is permissible to ask, in good laith, a delendant on cross-examination if he is guilty of committing a named criminal offense. At the same time it is equally well established that a defendant cannot be asked on cross-examination if he was ever indicted, charged or accused of a crime. Polk v. State. 252 Ark. 320, 478 S.W. 2d 738 (1972), and Black v. State, 250 Ark. 604, 466 S.W. 2d 463 (1971).

Even though objection was not made to the question propounded in the case at bar, we take this opportunity to firmly state our view that the inquiry is not deemed within the proper scope of cross-examination. It amounted to a supposition and was argumentative. If this conjectural approach is permissible on cross-examination, then there would be no limit to speculative and argumentative inquiries of witnesses on cross-examination in every case. In view of the absence of an objection and the appellant’s answer to the question, the asserted error was rendered harmless.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    ARKANSAS STATE MEDICAL BOARD v. Dr. J. E. CROSS
    73-299
    507 S.W. 2d 709
    Opinion delivered April 15, 1974

      Warren & Bullion, for appellant.

      George E. Pike and Smith, Williams, Friday, Eldredge & Clark, by: George Pike, Jr., for appellee.
   Carleton Harris, Chief Justice.

On October 31, 1973, the Arkansas State Medical Board issued a complaint and notice entitled “Order to Appear and Show Cause” to Dr. J. E. Cross of DeWitt, as follows:

“The Arkansas State Medical Board has received evidence that you have been guilty of acts which will justify the revocation of your license to practice medicine in the State of Arkansas.
Specifically, it has been charged that you have violated the provisions of Ark. Stat. 72-613 (5) (7) in that you have written prescriptions for Schedule II drugs excessively.
You have written a number of prescriptions for which do not comply with the legal requirements for a valid prescription as is illustrated by the attached list.
You have been guilty of grossly negligent malpractice in the prescribing and dispensing of said drugs.
You are directed to appear before the Arkansas State Medical Board on Wednesday, December 5, 1973 at 2:00 pm. at the Camelot Inn Civic Center at Little Rock/Arkansas to show cause why your license to practice medicine in the State of- Arkansas should not be revoked. Your failure to appear before the Board will result in the immediate suspension of your license.*’

Attached to the order was an exhibit listing 40 names where Demerol prescriptions had been issued, allegedly in violation of the statute.

Dr. Cross filed a complaint in the Arkansas County Circuit Court under the provisions of Ark. Stat. Ann. § 5-707 (Supp. 1973) to quash the Order to Appear and Show Cause, in effect asserting that the board had no legal basis to issue said order or to hold a hearing concerning the license of Dr. Cross, there being (as asserted) no full and complete disclosure to him of the alleged acts of misconduct, complainant impropriety, or lack of qualifications, as he contends is demanded by Ark. Stat. Ann. § 72-614 (Repl. 1957). The board responded to this pleading, appearing specially, with a Motion to Quash, asserting that the court had no jurisdiction to enjoin such board “from conducting a hearing under the Arkansas Medical Practices Act, Ark. Stats. 72-601 et seq.”

We agree with appellant that the facts in this case did not give the Arkansas County Circuit Court jurisdiction, or authority to act, under Ark. Stat. Ann. § 5-707. That section reads as follows:

“In any case of rule making or adjudication, if an agency shall unlawfully, unreasonably, or capriciously fail, refuse, or delay to act, any person who considers himself injured in his person, business or property by such failure, refusal, or delay may bring suit in the Chancery Court of any county in which he resides or does business, or in the Chancery Court of Pulaski County, for an order commanding the agency to act.”

This section unquestionably relates to the unlawful or unreasonable refusal of an agency, such as the Arkansas State Medical Board, to act, i.e., in this case, to conduct a hearing. Admittedly, the board was not refusing to conduct a hearing; in fact, it had set up a hearing which was the purpose of the notice and complaint to Dr. Cross. Dr. Cross’ assertion deals only with the insufficiency of such complaint, but the sufficiency or insufficiency of the complaint or notice given to the doctor does not constitute a failure to act.

It appears that the court litigation actually arose because, after the giving of the notice concerning the 40 alleged violations, it developed that the board also had acquired a list of numerous other alleged violations, and appellee was under the impression that these last mentioned alleged violations would also be introduced at the hearing. Since he had received no notice of these additional violations, the contention was made that the board was acting illegally. On oral argument, it developed, however, that counsel for the board concurred with the contention that these last alleged offenses were not involved in the “Appear and Show Cause Order” of October 31, 1973, sent Dr. Cross, and accordingly would not be used in that particular hearing.

However, as earlier stated, the determinative point in this litigation is that first discussed, and we hold that the sufficiency or insufficiency of a notice given Dr. Cross does not constitute a failure by the board to act, and the provisions of Ark. Stat. Ann. § 5-707 (Supp. 1973) are thus not applicable to this situation. It follows that the Arkansas County Circuit Court was without jurisdiction to enter the order complained of.

Reversed.

Fogleman.J., not participating.

       It is interesting to note that prior to 1965, Ark. Stat. Ann. § 72-613 (5) (Kepi. 1957) provided that a license could be revoked because of “conviction of violation of any federal or state law regulating the possession, distribution or use of any narcotic drug.” In 1965, the General Assembly amended the statute by the passage of legislation which became Act 85 (Ark. Stat. Ann. § 72-613 |5|) providing that the board could revoke or suspend an existing license, inter alia, because of“(5) Violation of the laws of the United States or the State of Arkansas regulating the possession, distribution or use of narcotic drugs, or drugs the sale and distribution of which is regulated by the Arkansas Barbiturate and Benzedrine Law."
      It will be noted that this change did away with the requirementof a conviction before the license of a doctor could be revoked or suspended. Again, in 1973, the General Assembly amended this section by the passage of Act 486 (Ark. Stat. Ann. § 72-613 [Supp. 1973]) inter alia by changing sub-section (5) to (e), the wording ol such new sub-section providing .that the board could revoke an existing license for “violation of the laws of the United States or the State of Arkansas regulating the possession, distribution or use of narcotic or controlled drugs classed in Schedules 1 through 5 of the Controlled Substances Act of 1970 (U.S.C., tit. 21, § 812), or the Arkansas Controlled Substances Act (§§ 82-2601 - 82-2638), including any amendments thereto;”.

       The violations referred to were the failure in some instances to date the prescriptions, and in other instances, to give the address ol the patient.

       We have held that the authorizing of the Chancery Court to entertain a petition for writ of mandamus must fall as being violative ol the Arkansas Constitution, although the remainder of the section is not affected since the designation of the forum is clearly severable from the other provisions. See Harber v. Rhodes. 248 Ark. 1188, 455 S.W. 2d 926.


author: George Rose Smith, Justice.

text:
    STANDARD LIFE & ACCIDENT INSURANCE Company v. W. OWENS
    73-301
    507 S.W. 2d 704
    Opinion delivered April 15, 1974

      Brown, Compton & Prewelt, by; William /. Prewetl, for appellant.

      Shackleford & Shackleford, for appellee.
   George Rose Smith, Justice.

This is an action by the appellee Owens upon a mortgage protection policy which provided monthly benefits for total disability caused by “sickness commencing more than thirty (30) days after the effective date of the insurance.” The jury returned a verdict for Owens in a sum somewhat less than the amount sued for. The insurer’s only contention for reversal is that it was entitled to a directed verdict on the ground that Owens’ sickness antedated the policy, which became effective on January 1, 1970.

Upon the evidence the trial judge, correctly submitted the case to the jury. In November, 1961, Owens suffered a heart attack (myocardial infarction), which disabled him for three months. He then returned to work on full duty as an auditor for an oil company. In that capacity he drove from 35,000 to 50,000 miles a year, covering parts of eleven states. During those years Owens had routine medical checkups, took medication for his heart condition, and carried nitroglycerin as a precautionary measure.

On February 28, 1971, more than a year after the effective date of the policy in issue, Owens suffered a second myocardial infarction, affecting a different part of his heart. His doctor testified that February, 1971, was the first time when Owens’ symptoms were such as to allow a reasonably accurate diagnosis of total and permanent disability based upon the patient’s myocardial insufficiency. The doctor said that “the precipitating event of his existent disability is the second myocardial infarction which, ás I would say, added insult to injury. Arteriosclerotic heart disease is a condition which many millions of people possess, and he demonstrated the ability to walk away from one infarction, but could not function after the second infarction.” The insurer’s expert medical witness, a pathologist, testified that the first infarction caused permanent damage to the heart muscle and that the basic disease, arteriosclerosis, had existed for a number of years.

The issue turns upon the word “sickness,” which was used in the policy without further explanation. According to what appears to be the uniform trend of the cases, the term does not encompass a non-disabling condition such as that which Owens had for more than nine years after his first heart attack. A typical statement appears in Milam v. Norwich Union Indemnity Co., 107 W. Va. 574, 149 S.E. 668 (1929):

“While the word ‘sickness’ is technically synonymous with such words as ‘disease,’ it is popularly differentiated in this way: One is not ordinarily considered sick who performs his usual occupation, though some organ of the body may be affected; he is regarded as sick, when that diseased condition has advanced far enough to incapacitate him. ... A liberal construction of the term ‘sickness contracted,’ as used in this policy, requires that it be applied to the time when the malady was sufficiently active to disable the patient, and not to the time when it originated.”

To the same effect are World Ins. Co. of Omaha v. Pipes, 255 F. 2d 464 (5th Cir. 1958); United Security Life Ins. Co. v. Sikes, 40 Ala. App. 677, 122 So. 2d 289 (1960); Price v. State Capital Life Ins. Co., 261 N.C. 152, 134 S.E. 2d 171 (1964); Fuchs v. Old Line Life Ins. Co., 46 Wis. 2d 67, 174 N.W. 2d 273 (1970).

Under the many decisions construing language similar to that in the policy now before us, it cannot be said as a matter of law that Owens was sick for a period of nine years after his first myocardial infarction or that the sickness which totally and permanently disabled him did not commence more than thirty days after the effective date of the insurance. The insurer’s motion for a directed verdict was correctly denied.

Affirmed.


author: Lyle Brown, Justice. J. Fred Jones, Justice,

text:
    COOPER INDUSTRIAL PRODUCTS, Inc. v. Delona Pauline WORTH
    73-288
    508 S.W. 2d 59
    Opinion delivered April 15, 1974

      Brown, Compton & Prewett, by: Win. /. Prewett, for appellant.

      Shackleford & Shackleford, by: Norwood Phillips, for appellee.
   Lyle Brown, Justice.

This is a workmen’s compensation case. The crucial question is whether an injury to the right knee rendered claimant permanently and totally disabled. Appellant contends (1) that there is no substantial evidence to support the commission’s finding of total and permanent disability, (2) that claimant received a scheduled injury which cannot be related to the body as a whole, and (3) that under the facts in the case claimant is limited to an award of $19,500, based on the theory that if she is permanently disabled, it was caused by a succession of injuries.

Appellee-claimant began working for appellant in 1964 as an assembly line worker. During that employment she sustained four job-related injuries. On July 6, 1964, she sustained a compensable injury which resulted in the removal of her left index finger. Upon return to work she was taken off the assembly line and began working as an inspector. On April 17, 1967, claimant sustained a second compensable injury to her neck. Her permanent disability was rated at 10% to the body as a whole. The claim was joint petitioned. Then on March 9, 1970, she sustained an injury to the right knee vyhich resulted in a disability of 40% to her right lower extremity. Claimant was off the job for about one year. Because of that injury claimant wears a brace which attaches to her upper thigh and extends to her instep. The brace is stiff and causes claimant to walk with her leg in a locked position. In order to sit, stoop, or bend, she disengages a latch on the brace. When she arises the latch is reengaged so she can walk. About two months after her return to work she suffered a fall and was off work four days. Shortly after that fall she was terminated by appellant, it being considered hazardous to herself and her fellow employees for her to continue working.

The commission adjudged claimant to be totally disabled as a result of the knee injury of March 9, 1970. Alluding to the previous injuries the commission said: “It is true claimant sustained other injuries which were anatomically disabling. However, these prior injuries were not disabling in the compensation sense. Disability means incapacity because of injury to earn. Claimant testified that she was able to do her work and earn her way after her two previous injuries but could not do so after the third injury.” The commission also declined to limit recovery to $19,500 on the theory that the limiting statute was not applicable because her disability was a result of only the one injury. That finding had reference to Ark. Stat. Ann. § 81-1313 (f) (1) (Repl. 1971), which placed a ceiling on recovery when permanent total disability results from previous and subsequent injuries.

We proceed to examine the testimony to ascertain whether there is any substantial evidence to support the judgment of the commission in its finding that claimant was totally and permanently disabled because of the injury to the right leg.

Delona Pauline Worth. She is forty-one years old and lives in El Dorado. She dropped out of school before finishing the eighth grade and went to work when she was twelve years old washing dishes at a hospital where she worked for seven years. She was promoted to nurse’s aide, giving baths, making beds, and attending to patients. When she left the hospital she went to work at Wood Manufacturing Company on the assembly line, doing work similar to her work for appellant. After working there seven years she worked briefly at two other places, both involving manual labor. In 1964 she went to work for appellant and did assembly line work, machine work, and inspection with the latter being her main job. “An inspector examines rubber car parts for possible defects. While inspecting, you can sit down part of the time and you can stand up part of the time. It does involve some stooping and squatting.”

Before going to work for appellant she had never suffered an injury and was in good health. (She then described the four accidents which we have heretofore related.) Following the injury to the right knee she was examined by Dr. Callaway and Dr. Sheppard of El Dorado and by Dr. Kenneth.}ones of Little Rock, all at the instance of appellant. She now wears a long leg brace prescribed by Dr. Callaway. It is impossible to walk without the brace or a crutch. The stiffness in her knee causes the other leg and back to ache “when I am on my feet very much”. She has no skills except hospital work and manufacturing work and does not feel physically able to do either one. She wears the brace at all times except when sleeping. Her husband helps with the housework.

Royce F. Worth. He is claimant’s husband. Before the described injuries his wife was able to help him roof the house and in plumbing. If claimant is on her feet very much around the house she complains of her leg and back. In doing her housework she has to sit down and rest quite often. “Presently I do all of her mopping and help her as much as I can in other ways around the house. I must do much more of the housework since this last injury.”

Ronald Murphy. This witness is an employment counselor for the Arkansas Security Division. He evaluates job applicants and determines if there are jobs available for which they might be suited. He had never interviewed claimant and would be unable to say whether she could be retrained without more information. There are three employers in El Dorado who employ primarily women, basically assembly line work. “This assembly line work involves some stooping, lifting or bending but basically requires employees to use their hands and fingers at a rapid rate of speed.” Most of the work requires prolonged standing in one area. Anyone with a seventh grade education is not generally considered good rehabilitation material.

On cross-examination he recalled other businesses in the area which employ large numbers of women. Those companies have women employed as PBX operators. The jobs require a little more than normal intelligence. Some such operators must have a high school education — others do not. The fact that claimant worked up to an inspector would indicate that she had a little more intelligence than others working on the assembly line; however, without further information he could not say whether claimant was retrainable.

Dr. Kenneth G. Jones. He saw claimant professionally in August 1971, more than a year after the knee injury. She was sent to him at the request of appellant. The doctor was called to testify on behalf of claimant.

Q. Dr. Jones, you expressed the opinion that she was totally disabled from engaging in gainful employment. Did you attribute that to the leg injury or to a conglomerate of all her problems of industrial injuries?.
A. It’s a conglomerate of all of them, although, I don’t think she could be able to work with her leg injury itself.
Q. As far as you are concerned, were she a whole woman except for the leg and the leg was in the condition that it is in, is it your opinion that she would be permanently disabled?
A. It’s my opinion she wouldn’t go back to work, yes.
Q. Why is that, Doctor Jones?
A. Well, this woman has had a series of accidents which suggests she is somewhat accident prone, if we could use such a term as that, and I think the leg in itself, in that she had enough disability in her right leg, with a flexion contracture of her right knee, that I don’t see how in the world she could carry on as an active person in a demanding type labor job. Now, if she were a white collar worker sitting at a table I assume she could work some but not at labor.

In cross-examination Dr. Jones conceded that he considered all of claimant’s injuries in the total picture and that with all these injuries she was not able to perform manual labor. He qualified his “conglomerate” statement by reiterating that claimant could not work because of the condition of her leg. He went so far as to say he would not hire claimant for a job simply requiring sitting.

Dr. J. C. Callaway. The doctor treated claimant two days after the injury to the knee and continued to treat her for a full year. He is the doctor who fitted claimant with the leg brace. As late as three months after the accident the doctor expressed the opinion that claimant “would prefer to remain crippled” than subject herself to surgical suggestion. In his last report a year after the accident the doctor gave this report:

The examination of March 15, 1971, revealed there is still thirty degrees flexion contracture of the knee. The knee flexes to ninety degrees. X-rays taken show some osteoporotic changes in the distal femur. There is no evidence of extra-articular calcification. Since her condition has remained static over many months, I feel that her disability is equal to forty percent of the right lower extremity. She is being discharged at this time. The patient could resume employment provided that stooping, squatting or excessive climbing are not involved . . .
She would be suited for a standing type job, such as on an assembly line, and would not be able to perform duties which involve more than a minimal amount of bending, lifting, stooping, squatting or climbing.

Dr. Callaway fixed claimant’s disability at 40% of the right lower extremity.

Dr. Jack Sheppard. The doctor examined claimant on June 2, 1971, at the instance of appellant and concluded his report with this impression:

This patient sustained an injury of the knee causing a flexion contracture of the right knee which appears to be permanent. Due to weakness of the ligaments of the knee, it is necessary for her to wear a brace while at work. It is my opinion that she is unable to fulfill her duties which she is presently assigned and that she is not eligible for employment by the standards of the Cooper Company. Because of the weakness and pain that she suffers from this leg, it is also my opinion that it would be hazardous for her to return to her employment, both to herself and her fellow workers.

In that same report Dr. Sheppard commented on the loss of the finger and the injury to the neck. “She has an amputation of the first finger of the left hand. The wound is healed well and appears to be no disability at the present other than the loss of the finger. There is slight stiffness of the neck, but does not appear to be causing any disability at the present time.”

The findings of the commission have the same binding force as a jury verdict. On appeal we give those findings the strongest probative force in favor of the commission. American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41 (1955). Doubtful cases are resolved in favor of the claimant. Hixson Coal Co. v. Furstenberg, 225 Ark. 568, 284 S.W. 2d 120 (1955). With the recited applicable rules in mind, and applying them to the facts which we think we have fairly abstracted, we conclude that the finding of the commission as to total and permanent disability is supported by substantial evidence.

Appellant contends that claimant’s injury to the knee is a scheduled injury under Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960) and cannot be related to the body as a whole. The contention is answered by Meadowlake Nursing Home v. Sullivan, 253 Ark. 403, 486 S.W. 2d 82 (1972):

The appellants’ main contention for reversal is based upon the testimony of Dr. Grimes, the claimant’s physician, who evaluated her medical disability as a 40% impairment of the left leg as a whole. There is no medical testimony indicating any greater impairment. In Anchor Constr. Co. v. Rice, 252 Ark. 460, 479 S.W. 2d 573 (1972), we held that the Commission, in fixing a partial disability resulting from an injury scheduled in Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960), cannot consider a wage-earning loss in addition to the physical functional loss. Upon the basis of that decision the appellants argue that the Commission erred in allowing anything more than the scheduled compensation for a 40% functional impairment of one leg.
That contention misconceives the basis for our holding in the Anchor Construction Company case. There we were considering only a partial disability under Subsection (c) of Section 81-1313, supra. That subsection provides fixed compensation which covers the functional loss and the wage-earning loss. But Subsection (a) provides a different rule with respect to total disability, which is to be determined “in accordance with the facts.” We held in McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502 (1966), that a scheduled injury may give rise to an award of compensation for total disability under Subsection (a). McNeely was not overruled by Anchor Construction, because the wording of Subsection (a) is more liberal than that of Subsection (c). The McNeely case is identical in principle with the case at bar and fully sustains the decision of the Commission.

Finally, appellant argues that the second injury provision of our compensation statutes applies in this case. Ark. Stat. Ann. § 81-1313 (f) (1) (Supp. 1971) provided, among other things: “When the previous and subsequent injuries received result in permanent total disability, compensation shall be payable for permanent total disability, but the sum total of compensation payable for previous and subsequent injuries shall not exceed 450 weeks or nineteen thousand five hundred dollars ($19,500.00).” The commission held that the provision does not apply in this case. Since there was substantial evidence that claimant’s total disability arose solely from the knee injury, we agree with the commission.

Affirmed.

Harris, C.J. and Jones, J., dissent.

J. Fred Jones, Justice,

dissenting. As I view this case, the crucial question is whether a 40% loss in the use of a leg because of a knee injury can render a claimant entitled to compensation benefits for permanent total disability under the statutory law as it now stands.

The claimant in this case sustained an injury to her knee resulting in a 40% disability, or loss in the use of her right lower extremity. The claimant wears a prescribed brace on the right leg. It is necessary to keep the brace in a locked position when walking, and it is necessary to disengage a latch on the brace in order to bend her knee. Because the medical doctors have said they do not think the claimant will be able to work because of the leg injury, the Commission found the claimant to be permanently and totally disabled and this court has affirmed.

As I interpret the effect of the majority opinion, it means that from now on in Arkansas if an employee sustains a com-pensable injury to a leg, foot, arm or hand, or to any other member of the body, and can produce medical evidence to the effect that the injured employee is accident prone, and because of such injury should not attempt to work in the future, if an award of permanent total disability should be made by the Commission, it should be affirmed by the circuit court and by this court on appeal.

It is my opinion that the Legislature made clear and specific allowances for just such a situation in the pvovisions of Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960). This section has been referred to and quoted so often in our decisions it should not be necessary to repeat it here, but I shall do so one more time. This section provides as follows:

“An employee who sustains a permanent injury scheduled in this subsection shall receive, in addition to compensation for the healing period, sixty-five per cen-tum [65%] of his average weekly wage for that period of time set out in the following schedule:
* * *
(3) Leg amputated at the knee, or between the knee and the hip, one hundred seventy-five [175] weeks;
* * *
(21) ... Compensation for permanent total loss of use of a member shall be the same as for amputation of the member;
(22) . . . Compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member.”

Now, subsection (d) under § 81-1313 pertains to “Other cases” (nót scheduled) and provides as follows:

“A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole, which have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.”

The Commission as well as the majority of this court in reaching the results reached in this case, apparently reverted back to subsection (a) of § 81-1313 pertaining to total disability, which reads as follows:

“In case of total disability there shall be paid to the injured employee during the continuance of such total disability sixty-five per centum [65%] of his average weekly wages. Loss of both hands, or both arms, or both legs, or both eyes, or of any two [2] thereof shall, in the absence of clear and convincing proof to the contrary, constitute permanent total disability. In all other cases, permanent total disability shall be determined in accordance with the fads." (Emphasis added).

As I interpret the above statutory provisions, subsection (a), including the last sentence above emphasized, relates to subsection (d), supra,-and pertains to permanent partial disability not scheduled in subsection (c).

I certainly feel that if an injured employee loses a leg as a result of an industrial injury, and because of such injury is no longer able to earn the same wages in the same or other employment, he should be compensated for his loss in wage earning capacity as long as it lasts, in addition to the permanent disability he is entitled to under a scheduled injury. My view in this connection was rejected by the majority in Anchor Constr. Co. v. Rice, 252 Ark. 460, 479 S.W. 2d 573. In Anchor the injured employee sustained a scheduled injury resulting in some permanent disability to his left leg below the knee. The medical evidence sustained a 15% disability to the leg. The claimant contended that he was entitled to a permanent partial disability in the amount of 50% to the body as a whole, and the respondent contended that he vv'as only entitled to the 15% functional disability found by the doctor. The Commission awarded 25% permanent partial disability to the leg. I dissented in that case but in the majority opinion this court said:

“As we view the record the Commission properly found that there was no permanent disability to any part of the body except the left lower extremity below the hip. Of course this reduces the permanent injuries to a scheduled injury under Ark. Stat. Ann. § 81-1313 (c). In Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W. 2d 862 (1971), we held that an injury scheduled under Ark. Stat. Ann. § 81-1313 (c) could not be apportioned to the body as a whole in determining the extent of permanent partial disability as distinguished from permanent total disability. See McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502 (1966).
We now come to the issue of whether the Commission in fixing partial loss or partial loss of use of a limb under schedule (c) can consider a wage earning loss in addition to the functional loss. We hold that they cannot.”

I agree that total disability may result, and many times does result, from a scheduled injury, and that the injured employee should be paid compensation benefits so long as he is totally disabled because of the scheduled injury. But when it comes time to determine and award benefits for permanent injury, I part with the majority in my interpretation of the statute. I do so in spite of the obiter dictum in McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502, which the majority, in the case at bar, has apparently adopted as the law in Arkansas. The obiter dictum referred to appears as a part of the statement in McNeely as follows:

“The principal question is whether an employee who suffers a scheduled injury which proves to be totally and permanently disabling is entitled only to the restricted compensation specified for the scheduled injury or to the greater benefits provided for total and permanent disability. The commission took the more liberal view, but its award was set aside by the circuit court. We agree with the commission.”

In the McNeely case we only know that the claim was for additional benefits after the claimant had been paid the full statutory period of 125 weeks for the loss of his leg. Certainly the full payment of scheduled permanent disability under subsection (c) should not prevent reinstatement of benefits for total disability within the statutory period for reopening or for change in condition. I find no fault with the results on the facts in McNeely but the majority in the case at bar have reached the conclusion, which we appeared to invite but refused to express in McNeely, for in that case this court said:

“The appellees complain of the fact that the commission, in finding this claimant’s disability to be total, failed to find that it was also permanent. Instead the commission said that the duration of the disability is not determinable at this time. Inasmuch as there was substantial evidence that might have sustained a finding of permanency — a fact issue upon which we express no opinion — we fail to see how appellees are hurt by the commission’s deferment of this question until the exact extent of the disability might become clearer.”

The case of Meadowlake Nursing Home v. Sullivan, 253 Ark. 403, 486 S.W. 2d 82, is no precedent for the conclusion reached by the majority in the case at bar for the reason that in Meadowlake the medical evaluation was a 40% impairment of the left leg as a whole, but the injury amounted to more than a mere loss of the leg or partial loss of the Use of the leg. As set out in Meadowlake, the injured employee fell and “seriously injured her hip.” As a result of the accident, the rounded upper end of the claimant’s left femur was surgically removed and replaced with a prosthetic knob. Even though the injury in Meadowlake could well have been considered as related to the body as a whole rather than a scheduled injury, the opinion indicates that the Commission made an award for total disability, as in McNeely, for the duration or permanency of the disability in Meadowlake is not mentioned.

I am growing weary of writing useless dissents in workmen’s compensation cases; consequently, until the Legislature or this court again changes the law, I shall accept the majority opinion in this case as simply holding that when the Workmen’s Compensation Commission awards permanent and total disability as a result of scheduled permanent injury under § 81-1313 (c), I shall feel obligated to affirm the Commission if there is any substantial evidence to support the award.

We said in Anchor Constr. Co., supra, that an injury scheduled under subsection (c) could not be apportioned to the body as a whole in determining the extent of permanent partial disability as distinguished from permanent total disability. We also said in Anchor that the Commission cannot consider wage earning loss in addition to functional loss in fixing partial loss or partial loss of use under subsection (c). But apparently, under the majority opinion in the case at bar, the Commission may relate a scheduled injury to the body as a whole, and may also consider wage earning loss in addition to functional loss if the Commission is considering permanent total disability rather than temporary total or permanent partial disability.

I would reverse and direct that this case be remanded to the Commission for a determination and award under subsection (c), and for determination and award of any additional total disability from which the claimant may be suffering at the present time, and for any medical services to which the claimant may be entitled.


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

text:
    Sammy S. JACKSON v. STATE of Arkansas
    CR 73-152
    507 S.W. 2d 705
    Opinion delivered April 15, 1974

      Tackett, Moore, Dowd & Harrelson, by: John 0. Moore, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. //. Hargraves, Dep. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Sammy S. Jackson asks us to reverse his conviction of robbery on two grounds. He first contends there is not sufficient corroboration of witnesses who testified to facts which would make them accomplices. We find the corroborating evidence sufficient.

About 11:00 a.m. on November 25, 1972, two men wearing ski masks robbed Kenneth Satterfield and others in the office of Satterfield Oil Company in Texarkana. One of the robbers brandished a pistol during the robbery. The two robbers, after causing Satterfield and the others to lie on the floor, walked directly into the room where Satterfield kept money.

James Andrews, after having pleaded guilty to the robbery, testified against Jackson. He implicated Jackson by relating substantially the following:

Andrews had been paroled from the penitentiary to Jackson in October, 1972, and had been employed by Jackson at the Handy-Dandy Service Station up until the time of the robbery. Jackson and Andrews went to Pine Bluff the night before the robbery to pick up Ollis Heard, who also participated in the robbery. Heard and Andrews spent the night in a motel in Texarkana, where Jackson picked them up the next morning and took them by a store at which Andrews bought three “stocking” or ski masks, later worn during the robbery. Jackson then took Heard and Andrews to the back of the Satterfield Oil Company building, and gave Andrews a .38 caliber pistol but stayed in his truck while Andrews and Heard robbed Satterfield and the others in the place. When Andrews and Heard left, they went through a wooded section toward a road where they were to meet Jackson. They did not find Jackson at the appointed place. They buried the masks, a shirt worn by Andrews, the money and the pistol in the woods. Jackson had told Andrews where the money was kept by Satterfield and that Satterfield carried large sums on his person. Later Andrews went to the Handy-Dandy Station. He changed his clothing, and was subsequently arrested there.

Olli^ Heard, who was arrested before he left the woods, for the most part corroborated the testimony of Andrews as to what took place prior to his own arrest. Heard stated he was with Jackson prior to 1967 when Jackson bought the pistol given to Andrews just before the robbery. Heard also testified Jackson had planned the robbery, had discussed it with him two or three times and had told him where the money would be.

A. P. Miller testified that the records of the House of Guns, at which he had been employed by his father-in-law Van Tittle, who died in 1968, disclosed that the pistol, a .38 caliber Smith and Wesson, had been sold to a Samuel L. Jackson on December 12, 1966.

Of course, the evidence in corroboration of an accomplice must tend, independently, to connect the accused with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1964). The use of the pistol owned by Jackson had some tendency, standing alone, to connect Jackson with the offense. The circumstances here are decidedly different from those in Cockrell v. State, 256 Ark. 19, 505 S.W. 2d 204 (1974), the latest case in which we found the corroborating testimony to be insufficient. In that case, there was no evidence that the defendant’s automobile, in which the stolen property was found, had been used in the burglary and larceny, and there was evidence that the alleged accomplice, who had been apprehended while driving the automobile, had considerable freedom in the use of it over some period of time. This case more nearly resembles Shipp v. State, 241 Ark. 120, 406 S.W. 2d 361, in which the fact that the. defendant, on the day before a robbery was committed, had purchased the clothing worn by the person committing it, was held to be sufficient corroboration. But we have held that evidence of a defendant’s ownership of a motor vehicle used in a larceny is insufficient corroboration. Pitts v. State, 247 Aek. 434, 446 S.W. 2d 222. However, there is more here.

Jackson had been employed by Satterfield to operate the Handy-Dandy Station. He had been in the Satterfield office on numerous occasions to bring money received in the operation of that station. Philip Burkhalter, a deputy sheriff investigating the robbery a short time after it occurred, found Jackson about three-fourths of a mile from the oil company in a pickup truck. When asked what he was doing there, Jackson said that he was looking for some horses.

It has been well established that corroboration may be by circumstantial evidence. Jones v. State, 254 Ark. 769, 496 S.W. 2d 423; King v. State, 254 Ark. 509, 494 S.W. 2d 476. Presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation and possession of instruments used in the commission of the offense are relevant facts in determining the sufficiency of the corroboration. State v. Mathiasen, 267 Minn. 393, 127 N.W. 2d 534 (1964); Cawley v. State, 166 Tex. Cr. R. 37, 310 S.W. 2d 340 (1957); Moore v. State, 30 Ala. App. 304, 5 So. 2d 644 (1941). All these pertinent factors weighed collectively, instead of merely raising a suspicion of defendant’s guilt, do constitute substantial circumstantial evidence tending to connect him with the crime.

The second point for reversal relates to procedures substantially identical with those followed by the court in Martin v. State, 254 Ark. 1065, 497 S.W. 2d 268, and Carter and Burkhead v. State, 255 Ark. 225, 500 S.W. 2d 368 (1973), where the trial judge, prosecuting attorney and defense counsel went into the jury room when inquiries by members of the jury were made to the court. This case was tried before our decisions were made in those cases. Our conclusion in Martin that appellant’s right to be present was waived by his counsel and that his rights were not prejudiced is fully applicable here. We expressed the hope in Martin that our admonition in Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86, of the mandatory nature of the requirement of Ark. Stat. Ann. § 43-2139 (Repl. 1964) that inquiries of the court by jurors must be made and answered in open court would be heeded and the procedure strictly followed. In Carter and Burkhead, we felt confident that the caveat in Martin would suffice to prevent resort to communications between the judge and jury outside the open courtroom. Although we have not held, and do not intend to hold, that this right of defendant cannot be waived, we take this means of giving notice that we will carefully scrutinize every case tried after the date of our decision in Martin (July 23, 1973) to determine whether there has been a waiver of defendant’s right to have such proceedings held only in open court, and that all reasonable doubts will be resolved by us against waiver.

Since we find no reversible error, the judgment is affirmed. Motion of appellant’s counsel for permission to withdraw is granted.

Byrd.J., dissents.

Conley Byrd, Justice,

dissenting. I disagree with the majority’s assertion that the record here is “substantially identical” with those followed by this court in Martin v. State, 254 Ark. 1065, 497 S.W. 2d 268 (1973), and Carter and Burkhead v. State, 255 Ark. 225, 500 S.W. 2d 368 (1973). The record in the Martin case, as copied in the opinion recites:

“Thereupon, by agreement, the court and the attorneys entered the jury room, and the following proceedings were had and done ... .”

The record in the Carter and Burkhead case, at page 171 thereof, recites that the first invasion of the jury room was “upon agreement of all parties.” (See appellant’s Abstract and Brief page 74). In this case there is no recitation of an agreement.

In Lewis v. United States, 146 U.S. 370, 13 S. Ct. 136, 36 L. Ed. 1011 (1872), when considering a similar problem the United States Supreme Court said:

"... [A]nd it appears to be well settled that where the personal presence is necessary in point of law, the record must show the fact ... .”

Aside from the fact that I do not think the record here shows a waiver of appellants’ right to be present, there is still another reason to hold the proceedings erroneous — i.e., it violated the “right to a public trial.” The record here shows that the trial judge and trial counsel made numerous trips into the jury room. Irrespective of who attended the trial whether they be friends and relatives of the prosecution or the upright citizens and relatives of the appellant, none of them will be in a position to dispute any accusations that the accused may make as to what transpired in the jury room during any one of the many trips. While the cold record of the court reporter may take down the words that were stated, it cannot reach those inflections of the voice nor the so-called “body language” which occasionally speaks louder than words.

A public trial requires neither great skill nor Herculean endeavor. It is a simple matter of placing all the facts and the applicable law upon top of the table in broad open view before the accused, the jury and the public. The fact that every criminal trial is subject to contemporaneous review in the forum of public opinion has generally been considered an effective restraint on possible abuse of judicial power, United States v. Kobli, 172 F. 2d 919 (3rd Cir. 1949). It also enables spectators to learn about their government and to acquire confidence in their judicial remedies.

For the reasons stated I respectfully dissent.


text:
    Ray D. PETTY v. D. A. CLARKE, Probate Judge and W. S. ARNOLD, Special Probate Judge
    73-309
    507 S.W. 2d 700
    Opinion delivered April 15, 1974

      Clifton Bond, for petitioner.
    No brief for respondents.
   Conley Byrd, Justice.

The sole issue on this petition for writ of prohibition is whether a special judge can be elected by the attending lawyers pursuant to Ark. Stat. Annf. § 22-436 (Repl. 1962), to hear a probate matter upon the disqualification of the regular chancellor.

Following the reversal and remand of the chancery proceeding in McDonald, Executrix v. Ray Dale Petty, 254 Ark. 705, 496 S.W. 2d 365 (1973), petitioner Ray D. Petty filed a petition for probate of an alleged holographic will. The regular chancellor, The Honorable D. A. Clarke, who, before his election to his present position, had represented some of the parties, notified the clerk to hold an election among the attending lawyers for the purpose of electing a special judge to hear and determine the issues raised by the petition to probate the alleged holographic will. Respondent W. S. Arnold was elected special judge by the lawyers in attendance.

In contending that there is no Constitutional or statutory provision for the election of a special judge by the attorneys in attendance, Mr. Petty asserts that the selection of a special judge to hear a probate matter is controlled by Article 7 § 36 of the Arkansas Constitution, which provides:

“§ 36. Special judges of county or probate courts. — Whenever a judge of the county or probate court may be disqualified from presiding in any cause or causes pending in his court, he shall certify the facts to the Governor of the State, who shall thereupon commission a special judge to preside in such cause or causes during the time said disqualification may continue, or until such cause or causes may be fully disposed of.”

However, we do not find Art. 7 § 36 to be controlling, because the people of this State subsequently adopted Constitutional Amendment No. 24, § 1 which provides:

“In each county the Judge of the court having jurisdiction in matters of equity shall be the judge of the court of probate, ...”

Subsection No. 4 of Amendment No. 24 repealed all parts of the Constitution of the State of Arkansas in conflict therewith. Consequently, the judge who was disqualified was not the probate judge but “the judge of the court having jurisdiction in matters of equity.” When viewed from the provisions of Amendment No. 24 it at once becomes apparent that the election was for the purpose of electing a special chancellor as authorized by Ark. Stat. Ann. § 22-436 (Repl. 1962), because there can be no separate “judge of probate.”

It therefore follows that the petition for writ of prohibition should be denied.

       Before adoption of Amendment 24, the county judge was also the judge of the probate court, Ark. Constitution 1874, Art. 7 § 34.


text:
    William A. SMITH Jr., Sylvanis PEEKS, Administrator of the Estate of Robert Eugene SMITH, Mary Margaret SMITH, Individually and as Next Friend of Mary Ann SMITH v. J. M. AARON and S. W. AARON
    73-294
    508 S.W. 2d 320
    Opinion delivered April 15, 1974
    [Rehearing denied May 20, 1974.]

      Matthews, Purtle, Osterloh & Weber, by: Henry J. Osterloh, for appellants.

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellees.
   Frank Holt, Justice.

The deceased, Robert Eugene Smith, was employed by appellees to operate a cotton picker. While operating the picker, the deceased raised the basket to unload its contents in a trailer. The basket became caught in overhead power lines. The deceased then stepped from the picker cab to the trailer and was instantly electrocuted. Admittedly, the work conditions near the high voltage lines did not comply with the safety requirements or standards of care prescribed by Ark. Stat. Ann. § 81-1401 et. seq. (Supp. 1973). This statute contains a penal provision and sets forth the minimum precautions of safety conditions for work being performed by an employee near high voltage lines including a requirement that a certain size and worded sign, prohibiting operation of machinery within six feet of high voltage lines, be posted outside and within the machinery. No such signs were posted. Among other defenses, appellees elicited evidence of custom and usage with respect to signs. A jury apportioned decedent’s negligence at 97% and 3% as to the appellees. Consequently, appellants were precluded from any recovery since the decedent’s negligence exceeded that of appellees. Ark. Stat. Ann. § 27-1730.1 — .2 (Repl. 1962).

We first consider appellants’ contention for reversal that the trial court erred in overruling appellants’ objection to the following question:

[Appellees’ attorney]
Q. From that time until now have you ever seen any signs posted by a man that operated a farm with regard . . .
[Appellants’ attorney]
We object to that question.
Court: I am going to let him answer.
Objection overruled.
A. Never have seen a sign nowheres.
Q. Warning anybody about lines?
A. No, sir.

We agree with the appellants. It has been held that where a contractor is held to both custom and industry standards and to the standard which would be followed by a reasonably prudent man then the more exacting standard will control. Baker v. Pidgeon Thomas Co., 422 F. 2d 744 (1970) and cases cited therein including AMI 1204 (which was later revised as a result of this opinion). In the case at bar the statutory scheme § 81-1401 et seq., supra, sets the more exacting standards. We hold that when a legislative enactment, as here, prescribes the minimum standards for the safety of an employee in mandatory language then such requirements supersede and render irrelevant any evidence as to custom and usage. To hold contra would deprive the statutory scheme, as devised by our legislature, of its purpose and effectiveness.

Even in the absence of statutory standards there is authority that “ . . . . industry cannot be permitted to establish its own uncontrolled standard by adopting careless methods to save time, effort and money.” Ferguson v. Ben M. Hogan Company, 307 F. Supp. 658 (W. D. Ark. 1969). There the defendant contended that it was the custom of contractors in Arkansas to have “unfinished strips of asphalt in a rough and uneven condition without employing safety or protective devices. ...” The court said this was a “specious” argument. Cf. Arkansas Drilling Co. v. Gross, 179 Ark. 631, 17 S.W. 2d 889 (1929).

We find no error in the court’s refusal to give appellants’ proffered instruction with respect to the extent of the employer’s common law duty to furnish an employee safe working conditions. The instruction did not sufficiently state the law. See, Southwestern Bell Telephone Company v. Casson, 199 Ark. 1140, 138 S.W. 2d 406 (1940), Norris v. Daves, 251 Ark. 101, 470 S.W. 2d 937 (1971), and 53 Am. Jur. 2d, Master and Servant, § 195. Neither did the court err in refusing appellants’ instruction on assumption of risk. This issue was interposed by appellees as an affirmative defense. Therefore, when the court refused appellees’ instruction on the subject, it ceased being an issue affecting the appellants.

Appellants also contend that the jury’s verdict is unsupported by substantial evidence. We disagree. On appeal we need only look to that evidence, with all reasonable inferences deducible therefrom, which is most favorable to the appellees. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935). In the case at bar, there was evidence adduced by the appellees that the decedent had been warned about the high voltage lines which were clearly visible. He was not a novice in the operation of the cotton picker having done so for appellees approximately two months. He had experience as a mechanic. At the time of the fatal accident the decedent was operating the picker with his brother in the cab, which was contrary to the instruction and warning of his employers. The crowded condition required the decedent to stand when driving the picker, thereby impairing overhead visibility. He was in this position at the time he attempted to unload the picker basket into the trailer. There was evidence that the picker was mechanically in good condition. In the circumstances we certainly cannot say there was an absence of substantial evidence to support the jury's verdict.

For the error previously indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.