author: Ernie E. Wright, Chief Judge. David Newbern, Judge,

text:
    Linda Carolyn Boyd CHAMBERS v. JERRY’S DEPT. STORE, INC. et al
    CA 79-350
    599 S.W. 2d 448
    Court of Appeals of Arkansas
    Opinion delivered May 14, 1980
    Released for publication June 4, 1980

      Brockman & Brockman, by: E. W. Brockman, Jr., for appellant.

      Chester C. Lowe, Jr., for appellees.
   Ernie E. Wright, Chief Judge.

This is an appeal from a decision of the Workers’ Compensation Commission affirming the administrative law judge’s decision appellant had failed to establish her back condition existing subsequent to June 10, 1977 was a result of the compensable injury she sustained on December 27, 1976, and denying any further workers’ compensation benefits. Hearings were held before the administrative law judge in September, 1978 and March, 1979-

The appellant sustained an admitted compensable injury on December 27, 1976, in the course of her employment with the appellee, Jerry’s Department Store, Inc., while helping move a metal sink base. She was thirty-one years old at the time of the injury. She received medical treatment shortly thereafter consisting of physical therapy and medication for pain. As her condition did not improve, she was referred to Dr. Simpson, a neurosurgeon in Pine Bluff, and was hospitalized under his care on January 18, 1977. Dr. Simpson’s medical history for the claimant showed she was in good health prior to the December 27, 1976 injury, and promptly thereafter began experiencing pain in her back and right leg. She had not had any serious back problem prior to the injury. Dr. Simpson’s examination revealed tenderness over the L4-5 and 5S-1 of her back on the right side with pain going down into the right hip and leg. The doctor’s initial impression was, “Possible herniated disc at L4-5 with upward herniation.” A lumbar myelogram was performed on January 20, 1977, using an injection of 15 cc’s of Pantopaque into the spinal subarchnoid space. The myelogram did not reveal a herniated disc, and Dr. Simpson’s final diagnosis was musculoskeletal back pain. She was instructed not to engage in any strenuous exercises or lifting, stooping, bending or picking up any object heavier than five to ten pounds. On her first post hospitalization visit to Dr. Simpson on March 7, 1977, she was still having right hip pain. Her radicular pain had decreased. She had tenderness over the ischial spine with radiation around the side of the right hip. He recommended a vigorous exercise program and advised her unless she had some specific problem he would not need to see her further but she should call him in about a month or so. The claimant next saw Dr. Simpson on June 8, 1977, and was continuing to have back and right leg pain. She reported she was doing fairly well until Monday when she sat down on a couch and suddenly experienced back and right hip pain. Dr. Simpson found she did have decreased range in motion of her back because of right leg pain and pressure over the lower lumbar region. Dr. Simpson released the claimant for work in March, 1977, and she did work from March until November 7, 1977, at Gold’s House of Fashion and later at Brandon Furniture. She has been unable to work since she was hospitalized November 8, 1977, under the care of Dr. Giles.

Claimant’s testimony was that she had never had back trouble before but she experienced back and leg pain from the time of the injury, although she at times had partial remissions. She continued to take medication for pain as directed by Dr. Simpson until she first saw Dr. Giles. Her condition grew worse and on September 12, 1977, she saw Dr. Giles, a Little Rock neurologist, and the medical history of the claimant as given to Dr. Giles reflected she experienced back pain while helping move a metal cabinet and sink on December 27, 1976. This was in keeping with the history given to Dr. Simpson. After returning to work her pain improved, but she experienced onset of left leg pain during the past two months prior to seeing Dr. Giles. Examination by Dr. Giles revealed marked tenderness over the peroneal nerve on the lateral aspect of the left leg. It was Dr. Giles’ tentative view she had likely suffered an injured nerve from some blow to the calf of her leg and he recommended conservative treatment. On November 9, 1977, claimant returned to Dr. Giles with continued persistent back and leg pain which had become progressively worse over the past six weeks and was radiating from the hip down into the lateral part of the foot. She was admitted to the hospital and the myelogram revealed a large bulging disc at the L5-S1 interspace on the left side. Twenty-one cc’s of dye, a larger than the usual amount, was injected to accomplish the myelogram because of the unusually large spinal canal. She was treated conservatively but continued to experience severe back and leg pain, and pain in both hips. Dr. Giles performed a lumbar laminectomy on the L5-S1 disc on January 6,1978. Subsequently when seen by Dr. Giles on February 20, 1978, she was still experiencing pain in her left hip as well as in her left posterior thigh, and was unable to perform recommended exercises. On March 21, 1978, she was again seen by Dr. Giles and complained of continuing pain in her back and leg. She was readmitted to the hospital on March 25, 1978, and a myelogram revealed a recurrence of the herniated disc at the L4-5 interspect for which she had the prior operation. She had a further operation on March 28, 1978, and an additional fragment of the disc was removed. Dr. Giles explained the confusion in the number reference to the vertebrae involved was because claimant has one vertebra more than normal, but it was the same disc involved at all times. Upon her return for a post operative visit on May 5, 1978, Dr. Giles found claimant was doing well but noted she had renewed back discomfort after sustaining a black eye, and abrasions and contuions about her face, body and arm as a result of being beaten by her husband. She was hospitalized and given bed rest, muscle relaxants and analgesics. She rapidly improved and was discharged on May 8. On June 5, 1978, she was again seen by Dr. Giles and was still having back and leg pain but had improved by the use of a back brace. She was next evaluated on July 19, 1978, and found to have back and hip pain, but her leg pain had improved. She walked with a mild limp and had mild muscle spasms in the lumbosacral region.

Hearing was held before the administrative law judge on September 19, 1978, and it was stipulated the respondents had accepted the claim as compensable and had paid compensation and medical expenses. Claimant testified she was still experiencing pain in her lower back that goes down her left leg to her toes and also at times in the right leg.

Final hearing was had before the administrative law judge on March 29, 1979, when further medical reports and the deposition of Dr. Giles, taken subsequent to the first hearing, was received in evidence and Jim Chambers, former husband of the claimant, and the claimant testified. The testimony of Chambers, who was called as a witness by respondents, was that the parties were married August 11, 1977, and that about the last of May or the first week of June, 1977, they were on an outing together on Petit Jean Mountain, and while they were wading in a creek the claimant fell on a big rock and sustained a large bruise on her left hip. In answer to a question as to why he did not give this testimony at the prior hearing, he replied, “I felt I had been gouged in the divorce case, and I was going to get back- at her.” The claimant denied any such incident and testified she was experiencing trouble with her back and legs both prior and subsequent to the outing the parties made to Petit Jean Mountain. There was no reference to any such fall in the report of Dr. Simpson incident to claimant’s visit to him on June 8, 1977, nor was there any other evidence that any such fall occurred.

Dr. Giles was unable to testify as to the injury that caused the herniated disc, but in response to a question as to whether or not the lifting of the sink caused or contributed to the disability, he responded, “The condition that you have just described, I would say, there is an excellent possibility that there was the incident which caused this lady’s problems.” He also testified he knew of no other incident that might have caused the disc rupture. He further testified, “I think the original injury could have some bearing on her present condition, based on the information given to me by you and the other counsel. I am not so sure that is what caused her present injury.” He further stated that assuming she had an injury in December, 1976, the back or disc injury could get progressively worse without trauma and this is not unusual. Dr. Giles also testified that if there was not enough dye injected in the myelogram performed by Dr. Simpson, this would possibly explain the failure of the test to reveal a herniated disc at that time; that the lady is, “quite large and overweight,” and it was only after she was placed in the semi-standing position and by use of a large amount of dye that he was able to see the large protruding mass into the dye column. He stated, “this was not visualized on the normal supine study.” Some of the testimony of Dr. Giles was in response to a hypothetical question propounded by counsel for the appellees, and it is obvoius from Dr. Giles’ answers to the lengthy hypothetical question that he was led to believe or assume that there was some kind of injury or incident that occurred to the claimant affecting her back subsequent to the December, 1976, admittedly compensable injury. However, we find no substantial proof is in the record of any injury to the claimant subsequent to the 1976 injury from which it can reasonably be inferred she received some further back injury. Dr. Giles was of the opinion the beating claimant received did not materially affect her residual disability.

The administriatve law judge, at the request of counsel for the appellees, issued a subpoena for Mr. Chambers for his attendance at the final hearing. Counsel for claimant by letter requested the judge to issue subpoenas for a number of witnesses to rebut the indicated testimony of Mr. Chambers. The judge refused to issue subpoenas for the witnesses requested by claimant stating, “unless I receive assurance that these individuals have a direct knowledge of the alleged occurrence at Petit Jean Mountain.” At trial counsel for claimant objected to the refusal to issue subpoenas and stated he desired to call certan witnesses named in his letter for purposes going to the credibility of Mr. Chambers.

The judge also refused the request of counsel for claimant to allow questions to Mrs. Chambers as statements previously made to her by Chambers about what he would do about testifying.

The judge also refused claimant’s request for subpoenas for witnesses for the final hearing who were expected to testify the claimant was not injured while working at the two places she worked subsequent to the 1976 injury. This evidence was intended to refute the inference in the hypothetical question counsel for appellees had propounded to Dr. Giles in a deposition taken subsequent to the first hearing. Counsel for appellant entered his objection in the record at the beginning of the final hearing.

For reversal appellant contends, (1) there is no substantial evidence to support the Commission’s findings; (2) the primary injury having been shown every natural consequence that flows from the injury likewise arises out of the employment; and (3) the administrative law judge abused his discretion in not allowing appellant to introduce proof by witnesses from two places of employment showing appellant had not received injuries there.

It was the duty of the commission to draw every legitimate inference possible in favor of the claimant and to give her the benefit of the doubt in making the factual determination. american Red Cross et al v. Wilson, 257 Ark. 647, 519 S.W. 2d 60 (1975). As undisputed testimony of the claimant showed she was never free of back problems after the December, 1976 injury, and every medical examination verified continuing back problems each time claimant was seen by a physician, we cannot say the Commission followed the above established rule in evaluating the evidence. The decision of the administrative law judge, affirmed by the Commission, stated the isuse to be decided was “necessarily a medical question.” This erroneous conclusion resulted in inadequate consideration of other facts in the record showing claimant’s back problems originated with the injury, and while at times in partial remission, were continuous from the time of the injury. In Harris Cattle Company v. Parker, 256 Ark. 166, 506 S.W. 2d 118 (1974), involving a herniated disc, the court said:

We have previously indicated, and now so hold, that it is not essential to award of benefits in every workmen’s compensation case that the causal relation between the accident and disability or condition be established or proven by medical evidence or testimony. We are of the opinion that each case should be determined on its own facts and merits as to whether medical evidence is necessary or essential in establishing causal relation.

Unquestionably the medical evidence is important in the present case, but the language of the Commission and the record as a whole indicate too little importance was given to other evidence relevant to causation. The court pointed out in the Harris, supra, case:

It is true that the medical reports do not say that Parker sustained his bulging discs when he was pinned between a hay loader and truck in August, 1971, or when he lifted a bale of hay in February, 1972. There is substantial evidence that he suffered pain and disability following both incidents, and that the pain was relieved by removal of two bulging discs in March, 1972. The medical reports do not say that the bulging discs and associated disability were not caused by the accidental injuries as testified to by Parker and his lay witnesses. There is substantial evidence from the testimony of Parker as well as others who were working in the field with him in August, 1971, including the testimony of his foreman, that he did sustain an injury in August, 1971, and complained of pain in his back and legs from the date of that injury until he was unable to get out of bed in December, 1971. The pain persisted and continued to grow worse until he finally underwent surgery in March, 1972, when the offending discs were removed and the pain subsided.

We conclude it was prejudicial error to refuse subpoenas at the request of appellant for witnesses who were expected to testify the claimant was not injured at the two places she worked subsequent to the 1976 compensable injury, in view of the fact counsel for appellees framed a hypothetical question to Dr. Giles suggesting some other causes for her condition had occurred at places where appellant worked. No valid reason was given for the refusal and the proposed evidence was pertinent to questions raised by the appellees subsequent to the first hearing. Also, it was error to refuse subpoenas requested by appellant for witnesses expected to discredit the testimony of Mr. Chambers.

The case is reversed and remanded with directions appellant be permitted to produce the witnesses she was prevented from producing at the final hearing, and further evidence by the parties may be received as the Commission may direct.

Newbern, J., concurs.

David Newbern, Judge,

concurring. I agree with the result reached in this case, and I do not disagree with any statement made in the opinion. I would like, however, to emphasize the fact that, while it is entirely appropriate to point out the commissions’ obligation to give the benefit of the doubt to the claimant where evidence conflicts, that rule is not the basis of the decision here. I fear that the lengthy recitation of testimony and the statement of the “benefit of doubt” rule might lead one to conclude we are ignoring the “substantial evidence” test. See Johnson v. Valmac Industries, 269 Ark. 626, 599 S.W. 2d 440 (Ark. App. 1980), which is handed down today.

We are not, I believe, saying there was no substantial evidence to support the commission’s order. Rather, we reverse because of these errors committed by the administrative law judge whose decision was merely accepted by the commission: (1) apparent refusal to consider pertinent lay testimony; and (2) refusal to subpoena witnesses whose testimony would also have been pertinent.


source: Caselaw Access Project

author: Steele Hays, Judge.

license: Public Domain

text:
    Charles Edward ADAMS v. STATE of Arkansas
    CA CR 80-2
    599 S.W. 2d 437
    Court of Appeals of Arkansas
    Opinion delivered May 14, 1980
    Released for publication June 4, 1980

      John W. Achor, Public Defender, by: Sandra T. Beavers, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Steele Hays, Judge.

Appellant pleaded guilty to four counts of Obtaining a Controlled Substance by Fraud in violation of Ark. Stat. Ann. § 82-2619- The trial court sentenced appellant to the Arkansas Department of Corrections for two years on each count. The sentences were suspended, and defendant was placed on probation for two years. During the probation period, appellant was directed to enter and successfully complete the drug rehabilitation program at the Veterans Administration Hospital.

Upon appellant’s discharge from the program, the prosecuting attorney filed a petition for revocation of the suspended sentence on grounds that appellant did not successfully complete the program. The court granted the petition of revocation and sentenced appellant to three years in the Arkansas Department of Correction. Appellant appeals from the lower court.

Appellant’s first point for reversal is that the trial court erred in admitting into evidence privileged, confidential communications made for the purpose of treatment of drug addiction. With a social worker, psychotherapist, and all the members of the treatment program present, appellant stated that he had made a telephone call from the premises attempting to purchase marijuana.

Rule 504(3) of the Uniform Rules of Evidence states:

A communication is ‘confidential’ if not intended to be disclosed to third persons, except persons present to further the interests of the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient’s family.

Ark. Stat. § 71-2822 (Repl. 1979) states that the communications between a social worker and his or her patient are confidential communications.

The State contends that the statement made by appellant was not privileged because it was not made during a drug treatment session, but rather a meeting for the purpose of investigating the possible use or sale of drugs by those in the drug treatment program.

At the revocation hearing, the testimony was ambiguous and conflicting as to what the actual purpose of the meeting was. Appellant in his testimony stated that the remark was made during “group therapy”, and immediately thereafter changed his mind:

... I mean, in a session with all the members of the program involved, and it was just asked, ‘What’s going on?’

The social worker, Mr. Homer Thayer, when asked whether the statement was made during a “psychotherapy session”, answered “no”. Then, counsel for appellant asked:

Q.: —or a treatment session?
A.: No, sir. It was not.
Q.: Were there any — are there any group therapy sessions?
A.: No, sir.
Q.: Well, what was it, was it merely recreational?
A.: No, sir.
Q.: Well, what was the status of the group, at that time?
A.: I’m not sure I understand your question, sir.
Q.: Well, I mean, was it a . . . was this group a part of the program of treatment?
A.: Yes, sir.
Q.: This statement occurred during a program of treatment with a psychiatrist or a social worker present?
A.: All but a psychiatrist.
Q.: Okay. And this was an official part of the program of treatment at your facility, when this statement was made?
A.: If I might take a little liberty, not a scheduled part of the program, but a part of the program.
Q.: Okay. It was a part of the program, though?
A.: It was a reaction to the situation.

From the testimony above, it is impossible to determine whether the meeting in question would invoke Rule 503, of the Uniform Rules of Evidence regarding confidential communications. However, we find it unnecessary to render judgment on the issue since the trial judge had made appellant’s probation conditional upon appellant’s successful completion of the drug rehabilitation program. The trial judge expressly recognized this fact when addressing counsel for appellant after he objected to Mr. Thayer’s testimony:

On the other hand, if you want to invoke this privilege, the court may permit you to do so. But this man can say, without violating the privilege, that he is no longer a patient there. . . . And my records would show that if he is not a patient there, he is in contempt of court and he is violating the rules and regulations that I permitted him to go there.

The trial judge has the authority to grant a conditional probation under Ark. Stat. Ann. § 4l-1203(2)(3):

(2) If the court suspends imposition of sentence on a defendant or places him on probation, it may, as a condition of its order, require that the defendant:
... (e) participate in a community-based rehabilitation program.

An appellate court will not overturn a trial judge’s granting of a petition of revocation unless it is clearly against the preponderance of the evidence. Cureton v. State, 266 Ark. 363, 589 S.W. 2d 204 (Ark. App. 1979); Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149 (1977); Ark. Stat. Ann. § 41-1208(4). In the instant case, we can not say that the trial judge’s findings were clearly against the preponderance of the evidence. The suspended sentence was expressly conditioned upon the successful completion of the drug rehabilitation program. Appellant did not complete the program, and absent a showing that appellant was arbitrarily dismissed from the program, then the trial judge could justifiably find by a preponderance of the evidence that the defendant had failed to comply with a condition of his suspension or probation.

Appellant’s second point is that the trial court erred in sentencing appellant to a term of years greater than that originally imposed. Ark. Stat. Ann. § 41-1208(6) provides:

(6) If the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on defendant that might have been imposed originally for the offense of which he was found guilty, provided that any sentence to pay a fine or to imprisonment when combined with any previous fine or imprisonment imposed for the same offense shall not exceed the limits of sections 901 [§ 41-901] or 1101 [§ 41-1101, or, if applicable, section 1001 [§ 41-1001]. [Acts 1975, No. 280, § 1203, p. 500.]

Appellant argues that Ark. Stat. Ann. § 43-2326 is a distinct method of sentencing, and when mere execution of a sentence is suspended and is thereafter revoked, the trial judge is restricted to the original sentence imposed, citing Cureton v. State, 266 Ark. 363, 589 S.W. 2d 204 (Ark. App. 1979); Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1979). In each of these cases, the court was unable to review the issue for the reason that it was raised for the first time on appeal. However, appellant requests that we review the issue since it is an error which is plain on the face of the record. State v. Lawrence, 246 Ark. 644, 439 S.W. 2d 819 (1969); Wells v. State, 193 Ark. 1092, 104 S.W. 2d 456 (1937).

We believe the trial judge did not have the authority to impose a greater sentence than was originally imposed pursuant to Ark. Stat. Ann. § 41-803 (Repl. 1977). [See also Culpepper v. state, 268 Ark. 263, 595 S.W. 2d 220 (1980) ]. Under this section of the Criminal Code, a trial judge is only authorized to suspend imposition of a sentence or place the defendant on probation. The suspension of the execution of sentence is no longer authorized and Ark. Stat. Ann. § 43-2326 (Repl. 1977) is repealed by implication. Culpepper, supra. Consequently, since the trial judge had already executed the sentence, he could not thereafter impose a greater sentence than was originally imposed.

The decision of the trial court is accordingly modified and the sentence of appellant is reduced from three years to two years.


author: James H. Pilkinton, Judge.

text:
    BENEFIELD REAL ESTATE, Employer; SOUTHERN FARM BUREAU CASUALTY, INC. Insurance Carrier v. Roger MITCHELL
    CA 80-13
    599 S.W. 2d 445
    Court of Appeals of Arkansas
    Opinion delivered May 14, 1980
    Released for publication June 4, 1980

      Barrett, Wheatley, Smith & Deacon, for appellants.

      Howard & Howard, for appellee.
   James H. Pilkinton, Judge.

This is a workers’ compensation case. The principal issue is whether claimant, Roger Mitchell, was an employee of Roger Mitchell and Son Contractors, Inc., within the meaning of Section 6 of the Arkansas Workers’ Compensation Act [Ark. Stat. Ann. § 81-1306 (Repl. 1976) ] and therefore entitled to benefits against the general contractor, Benefield Real Estate Company and its workers’ compensation insurer, Southern Farm Bureau Casualty, Inc.

Claimant contended before the Workers’ Compensation Commission that he sustained a compensable injury on May 18, 1978, and was entitled to temporary total disability benefits, medical benefits, and controverted attorneys’ fees. It was claimant’s contention that the healing period had not ended, and the issue of permanent disability should be reserved for a later determination.

The respondents contended below that the claim was non-compensable because the claimant was a subcontractor at the time of the injury and was not an employee of Benefield Real Estate as provided in Section 6 of the Workers’ Compensation Act.

It is undisputed that claimant was injured on May 18, 1978, when the front wall of a building on which he was doing work as a carpenter collapsed, and the trusses fell on him injuring his ribs, hips and lungs. At the time of the injury the claimant was working on a contract that he had negotiated on behalf of Roger Mitchell and Son Contractors, Inc., a corporation, with Benefield Real Estate, one of the respondents. Roger Mitchell and Son Contractors, Inc., did not carry workers’ compensation insurance and had not qualified as a self-insurer. The claimant, Roger Mitchell, was president of Roger Mitchell and Son Contractors, Inc. In addition'to the claimant, three other employees were working in the crew for Roger Mitchell and Son Contractors, Inc., at the time of the accident.

The Administrative Law Judge held that the relationship of employee-employer-carrier existed among the parties; that the claimant sustained an injury on May 18, 1978, arising out of and in the course of his employment, and claimant was temporarily totally disabled for the period beginning May 19, 1978, and continuing through March 20, 1979; and that the claimant earned wages sufficient to entitle him to the maximum weekly compensation benefits of $87.50. Claimant was found to have an anatomical permanent partial disability in the amount of 38% to the body as a whole. Although the medical in this claim was not fully developed concerning the degree of permanent disability, and the final degree of permanent disability was specifically reserved for future determination, Dr. Joseph S. Hudson, a neurosurgeon, and one of appellee’s principal treating physicians, did make a permanent impairment rating a 38% to the body as a whole on March 20, 1979. Accordingly, the commission concluded that appellee’s healing period ended on March 20, 1979; and that it would be necessary to conduct an additional hearing concerning the final degree of permanent disability.

The carrier was directed and ordered to pay to claimant temporary total disability benefits in the amount of $87.50 per week beginning May 19, 1978, and continuing through March 20, 1979. Respondents were further ordered to pay permanent partial disability in the amojunt of $87.50 per week beginning March 21, 1979, and continuing for 111 weeks, which represents 38% permanent partial anatomical disability to the body as a whole. Respondents were directed to also pay all hospital, medical and related expenses arising out of the claimant’s compensable injuries of May 18, 1978, including the maximum statutory attorneys’ fees. Respondents appealed to the Arkansas Workers’ Compensation Commission where the findings of fact, conclusions and award of the Administrative Law Judge were adopted as the opinion of the full commission. The case comes before us on appeal from the opinion of the commission entered on December 18, 1979.

Section 6 of the Workers’ Compensation Act (Ark. Stat. Ann. § 81-1306) provides:

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

The basic issue presented for determination by the commission was whether the claimant, Roger Mitchell, was an employee of Roger Mitchell and Son, Inc., within the meaning of Section 6. It is true that Roger Mitchell was a corporate officer of Roger Mitchell and Son Contractors, Inc.; however, the commission found that he was also an employee of the corporation. The evidence reflects that he received wages of $8.00 an hour from the corporate for a usual work week of 40 to 50 hours. He was the working supervisor for the corporation on the job in question. As stated by Professor Larson, when a corporate officer’s duties involve distinctively non-executive, non-supervisory or even manual work, the compensation act should apply. IB Larson’s Workmen’s Compensation Law, § 54.21. Professor Larson goes on to say, at the same Section:

With very little difficulty, the courts also extended coverage to corporation officers when their duties were of a supervisory character, such as those of a foreman, superintendent of construction, superintendent of a department, and even, with near unanimity, a general manager, since these are all jobs that, in ordinary circumstances, would make the holder an employee.

The task of weighing the evidence in this case fell within the province of the commission. And in determining whether the evidence was substantial, we must consider only that evidence which is most favorable to the commission’s finding, and view, weigh, and interpret it along with all reasonable inferences deducible therefrom, in the light most favorable to those findings. Barksdale Lumber Company v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977). It is not within our province to weigh the evidence de novo. The question before us is whether there is substantial evidence to support the award made. We must affirm if there is substantial evidence to support the commission’s findings. Wilson and Company v. Christman, 244 Ark. 132, 424 S.W. 2d 863 (1968).

Appellee relies on the decision of the Arkansas Supreme Court in Thomas v. Southside Contractors, Inc., 260 Ark. 694, 543 S.W. 2d 917 (1976), and says it is directly in point with the case before us. In Thomas, the vice-president of an uninsured subcontractor was injured while working on the job and filed a claim against the principal contractor which was denied by the commission. On appeal the circuit court affirmed the commission. On appeal to the Supreme Court the case was reversed and the Supreme Court of Arkansas held that this individual was entitled to compensation from the principal contractor and his carrier. The holding of the Supreme Court was based upon the fact that the employee, while an officer of the subcontractor, was not the subcontractor per se. While the Thomas case may have some bearing on the case at bar, it can be distinguished. The basic question here is whether there is substantial evidence in this record to support the finding of the commission that Mr. Roger Mitchell was in fact, and within the meaning of the compensation law, an employee of Roger Mitchell and Son Contractors, Inc. We think the case at bar is governed by Brooks v. Clay well, 215 Ark. 913, 224 S.W. 2d 37 (1949), which dealt with whether an officer of a corporation is an employee within the meaning of the compensation act; and with the weight a court on appeal must give to a finding by the commission in deciding that question. Here the commission held that Mitchell was an employee of Roger Mitchell and Son Construction, Inc., within the meaning of the compensation act. That was a question of fact to be determined by the Workers’ Compensation Commission, and that finding on appeal must be given the same effect as the verdict of a jury. Brooks v. Claywell, supra.

After a careful review of the testimony, we find that there is substantial evidence to support the findings and award of the commission. The record shows that the appellant-employer knew that Roger Mitchell and Son Contractors, Inc., did not carry workers’ compensation insurance. Benefield did not require the corporation to obtain the required coverage. Therefore, appellant Benefield acted at his own peril by contracting a job to a corporation and not requiring proof of workers’ compensation insurance. Section 6 of the act clearly applies to this case.

Affirmed.


author: Marian F. Penix, Judge. David Newbern, Judge,

text:
    James M. WOODS v. EMPLOYMENT SECURITY DIVISION, ARKANSAS DEPARTMENT OF LABOR, Charles L. DANIELS, Director, and ARKANSAS WASTE DISPOSAL
    CA 79-269
    599 S.W. 2d 435
    Court of Appeals of Arkansas
    Opinion delivered May 14, 1980
    Released for publication June 4, 1980

      Jones & Tiller, by: Marquis E. Jones, for appellant.

      Thelma M. Lorenzo, for appellees.
   Marian F. Penix, Judge.

Claimant James M. Woods worked from April 14, 1973 through June 7, 1979 for Arkansas Waste Disposal. He applied for unemployment benefits which were denied under Section 5(b)(1) of the Employment Security Law. Claimant appealed the Agency’s decision. The Appeal Tribunal modified the Agency’s decision and found Woods was not discharged from his work but voluntarily quit without good cause connected with the work within the meaning of Section 5(a) of the Employment Security Law. The Board of Review affirmed the Appeal Tribunal’s decision. Woods appeals.

Woods contends he is entitled to unemployment benefits resulting from a personal emergency. His testimony was that the employer company was dumping chemicals into the landfill where he worked. He testified the chemicals made him ill causing him to leave the job site. He stated further he had been on leave from work a couple of times resulting in his recovery. He stated he left the job site the morning of June 7, 1979, because he felt “fainty, weak, sick again”. Woods testified he left the job site because some of the chemicals he was burying splashed upon him causing him to burn. He testified there is no facility at the landfill where an employee can wash. He stated he told the clerk Bradley he was leaving because “the stuff was burning me pretty bad”. The evidence showed the nearest water supply was a mile or mile and a half. Woods stated he had to get off his clothes as quickly as possible. He said he didn’t mention to anyone on the job site because there was no one there who was his boss.

When he left the job site he went to the office to see his boss. Not finding his boss, Ralph Holland, he met James Herron, foreman. Woods contends Herron asked him for his keys. Woods alleges he tried for three days to locate his boss Holland. Finally when he reached him by phone Holland informed him he no longer had a job. Woods contends he went looking for his boss to tell him about his illness and not to quit his job.

Woods’ employer contends Woods quit. He also contends an OSHA inspection had found the land fill safe.

Sec. 5(a) of the Employment Security Act provides:

Ah individual shall be disqualified for benefits if he voluntarily and without good cause connected with the work, left his last work . . . Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling’ urgency that it would be contrary to good conscience to impose a disqualification; or, if after making reasonable efforts to preserve his job rights, he left his last work because of his illness, injury or disability-

Our question is whether the decision of the Board of Review that Woods voluntarily left his last employment without good cause connected with the work is supported by substantial evidence. We must also determine whether Woods left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification as described in Sec. 5(a) supra.

The employer’s manager, Ralph Holland, testified Woods walked off and quit. Holland stated Woods told Bradley, the clerk at the landfill shack, he was fed up with the landfill, was quitting and punching out and going to the office to turn in his keys. Bradley reported to Holland he told Woods he “better just cool down and not quit your job”. Woods replied “naw, I’m leaving”. Holland testified further Woods hunted up his supervisor, James Herron, said he was through, gave Herron his keys of his own accord and left. Three days later Woods called Holland and said he had changed his mind and didn’t want to quit. Holland told Woods “it’s too late, you’ve already quit”.

From the evidence we find Woods was forced to leave his job to protect his health in that some chemical had splashed on his body and was burning his skin. He was not near health facilities — he had to leave for personal care. When Woods went seeking his boss someone else asked for his keys.

Woods has made a prima facie case. The only evidence offered by appellee employer, Ralph Holland, is hearsay provided by Bradley and Herron. We recognize hearsay to be admissible in hearings before administrative tribunals, but we find hearsay alone not to be substantial evidence.

We are aware a decision of the Board of Review must be affirmed if we find substantial evidence to support it. However, in this case we cannot find substantial evidence to support a determination Woods is disqualified. We hold Woods is not disqualified as provided in Sec. 5(a) supra.

Reversed and remanded.

Newbern, J., concurs.

David Newbern, Judge,

concurring. I agree with the result, but I take issue with that part of the majority opinion which seems to make findings of fact. For example, the opinion says:

From the evidence we find Woods was forced to leave his job to protect his health in that some chemical had splashed on his body and was burning his skin. He was not near health facilities — he had to leave for personal care. When Woods went seeking his boss someone else asked for his keys.

Of course, this court does not hear this appeal de novo. We do not make factual determinations, and I believe we should limit ourselves to saying simply there was not substantial evidence in the record to support the board’s decision.

From what we, from this vantage point, have learned of the process which brings employment security bénefits appeals to us, I suspect this decision will work a radical change. No longer will an employer be able to use the testimony of a company president or personnel manager who has only second hand knowledge to refute the testimony of an employee with respect to the circumstances surrounding his departure from a job. I find this change to be important and salutary.


author: George Howard, Jr., Judge.

text:
    CITY OF FORT SMITH v. John MOORE et al, and Charles L. DANIELS, Director of Labor, State of Arkansas
    CA 79-70
    599 S.W. 2d 750
    Court of Appeals of Arkansas
    Opinion delivered May 14, 1980
    Released for publication June 4, 1980

      Bethell, Calloway & Robertson, by: Edgar E. Bethell, for appellant.

      Youngahl, Harrison & Agee, for appellees John Moore, et al.

      Thelma M. Lorenzo, for appellee Charles Daniels.
   George Howard, Jr., Judge.

The pivotal issue is whether the finding of the Board of Review that the labor dispute between appellant, City of Fort Smith, and appellees, former non-uniform employees of the City, terminated on May 10, 1978, and, consequently, appellees are eligible for unemployment benefits, although the issues that precipitated the dispute were being arbitrated pursuant to the collective bargaining agreement between the parties.

The relevant facts are: On April 12, 1978, appellees reported for work, as usual, but just prior to the time that they were expected to commence their daily routine, several employees of the Street Department requested their Union Steward, Jake Sharum, to advise the City Administrator, Hugh Earnest, that they wanted to meet in conference in order to discuss working conditions. Mr. Earnest declined to meet with the Street Department employees, but stated that he would meet, when it was mutually convenient, with a committee of the group to discuss any problems they desired to register. Mr. Earnest, in addition, advised the employees’ representative that, in the meantime, the employees should return to work.

After hearing Mr. Sharum’s report, the employees left their employment and went to the Union Hall. At this point, appellees’ version of what took place differs from appellant’s version. Appellant states that appellees were told to either go to work or leave the premises, while appellees contend that a foreman of the Street Department told the employees to “Hit the gate. You are fired.” It is plain, however, the Street Department employees did not return to work and as word of the dispute spread, other employees in various departments followed the Street Department employees to the Union Hall.

On the evening of April 12, 1978, a meeting was held, consisting of the City Administrator and a committee of the employees. While receiving numerous complaints registered by the committee and advising the committee that some of the complaints would be corrected and others would not, the City Administrator urged the employees to return to work.

On April 13, 1978, the employees picketed several installations, including City Hall.

On April 18, 1978, appellant began to hire replacements for those employees who ignored appellant’s warning to return to work by April 17th. As a consequence, the City was functioning on a “substantially normal basis.”

Appellees claim that while some workers returned to their jobs on April 17th, as directed, appellees refused to do so unless four other employees who had received termination notices were reinstated.

On May 3rd, appellant made an offer to appellees stating that it would accept applications from those employees who were terminated on April 17th, and would consider them for vacancies as such vacancies occur. The offer contained a condition that those employees who were rehired must serve a forty-five (45) day probationary period after which their previous seniority rights would be restored.

On May 10th, appellees submitted individual applications for rehire and attached a statement containing the following:

“I will not, of course, give up any contract rights negotiated for me by my union. ... I demand that the City stop trying to cancel its legal contract provision without even pretending to go through proper procedures.”
On May 11th, appellant rejected appellees’ applications.

Appellees filed claims for unemployment benefits under Arkansas’ Employment Security Law, but the Local Agency held appellees ineligible for benefits because their employment was lost by reason of a labor dispute.

The Appeal Tribunal affirmed the Agency’s decision that appellees were ineligible for benefits from April 12, 1978, to May 13, 1978, inclusive, but found appellees eligible commencing May 14, 1978, concluding:

“The Tribunal . . . finds that the dispute ended as of May 10, 1978, when claimants applied ... to be rehired. By this time, city operations had returned to normal and the claimants had been permanently replaced in their jobs.”

On January 20, 1979, the Board of Review affirmed the action of the Appeal Tribunal.

For reversal, appellant has asserted the following points:

1. The Board of Review erred in finding that the labor dispute had ended, and that the claimants were eligible for unemployment benefits.
2. The Board of Review erred in failing to find that the claimants were disqualified for benefits until they had at least thirty (30) days paid work after filing their respective claims.
3- The Board of Review erred in failing to find that the claimants were disqualified for eight (8) weeks of unemployment compensation because they were discharged for misconduct in connection with their work.
I.

Ark. Stat. Ann. § 81-1105(f) provides in relevant part:

If so found by the Commission, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment if he lost his employment or has left his employment by reason of a labor dispute other than a lockout at the factory, establishment, or other premises at which he was employed (regardless of whether or not such labor dispute causes any reduction or cessation of operations at such factory, establishment or other premises of the employer), as long as such labor dispute continues, and thereafter for such reasonable period of time (if any) as may be necessary for such factory, establishment, or other premises to resume normal operation. (Emphasis added)

Appellant argues that the language in § 81-1105(f) clearly precludes the payment of benefits for the duration of any period of unemployment if the claimant “lost his employment or has left his employment by reason of a labor dispute ... as long as such labor dispute continues . . that the labor dispute in the instant case did not terminate, as found by the Board of Review on May 10, 1978, but, on the contrary, the labor dispute ended March 9, 1979, when the arbitrator denied the claims of appellees for reinstatement to their former employment.

Appellant seeks to equate “labor dispute” with the cessation of work on the part of an employee, in which case, “labor dispute” would be synonymous with “unemployment”; and thus, an additional period of ineligibility could commence at the end of a strike. But this Court has made it clear, while there has been no attempt to render a definition of "labor dispute”, that when the employees cease all strike activity and apply unconditionally for reinstatement and the employer has resumed normal operations, the labor dispute is regarded as terminated and claimants may not be disqualified under the “labor dispute” provision. Burkhart/Randall Div. v. Daniels, 266 Ark. 234 (Ark. App. 1979), aff'd Randall, Burkhart/Randall Div. of Textile, Inc. v. Daniels, Director, 268 Ark. 375, 597 S.W. 2d 71 (1980).

Moreover, the purpose of the Employment Security Law is to relieve some of the economic consequences of involuntary unemployment, and not to penalize or reward either the employee or employer engaged in a legitimate labor dispute. The Act was not intended to compel a striking employee to remain without benefits longer than his own action made it necessary. The Law’s only concern with labor disputes is for the determination, when a claim is filed for benefits, whether claimant’s unemployment is voluntary or involuntary. This Court in Burkhart, supra, in recognizing this limited concern said:

“We believe all of the facts and circumstances of each case must be considered in determining whether a ‘labor dispute’ exists or is terminated within the meaning of the act. We hold that the collective and unconditional offer by the striking employees to return to work terminated the ‘labor dispute’ within the meaning of Ark. Stat. Ann. § 81-1105(f).”

However, appellant argues that appellees’ applications of May 10, 1978, for rehire did not comply with appellant’s offer according to “the stated terms.” In other words, while appellees’ applications accepted the offer to return to work, the applications rejected the loss of seniority or contractual rights. Thus, argues appellant, appellees’ offer is conditional and, consequently, appellees are ineligible for benefits. Appellant cites Rainfiar, Inc. v. Cobb, 229 Ark. 37, 312 S.W. 2d 906 (1958) where the Arkansas Supreme Court held that employees, who had called off a strike and offered to return to work unconditionally, were immediately eligible for benefits although the employer had no available work.

We are not persuaded that appellees’ applications must be regarded as conditional offers for rehire. Appellant’s offer to rehire appellees was conditioned upon the forfeiture of seniority rights secured under the- collective bargaining process. It is plain appellant’s offer of May 3rd was not really an offer affording appellees any meaningful benefits. It was an offer that in many respects had the appearance of according appellees a “Hobson’s choice.” Indeed, if appellees accepted the offer as, submitted by appellant, they would forfeit contractual rights acquired as a result of years of faithful service, while on the other hand, if they rejected the offer, this action would preclude the recovery of unemployment benefits. We hold that the rights of an employee secured under the collective bargaining process and his eligibility for benefits — which is part and parcel of a social program sponsored by the State to protect one against the hazards of economic life — may not be frustrated by an offer affording no real alternatives.

II.

Appellant contends that the Board of Review erred in failing to find appellees were disqualified for benefits under Ark. Stat. Ann. § 81-1106(a) and (b) which provide:

... an individual shall be disqualified for benefits:
(a) If he voluntarily and without good cause connected with the work, left his last work. Such disqualification shall continue until, subsequent to filing his claim, he has had at least 30 days of paid work.
(b) (1) If he is discharged from his work for misconduct in connection with the work. Such disqualification shall be for eight [8] weeks of unemployment . . .

Appellees contend, however, appellant is precluded from raising these issues at the appellate level since they were not asserted below.

Appellant concedes that its disqualification argument under § 81-1106(b) was not raised until the case reached this Court; but argues the issue, nevertheless, was present throughout the length of the proceedings below; that appellees’ claims were specifically challenged under § Sill 06 in its position statement filed with the Appeals Referee on July 18, 1978, and that while “the position statement is not part of the record in this case, it can be obtained by this Court from the files of the Employment Security Division if there is any dispute that this issue was raised before the Referee.”

The Appeals Referee made the following findings:

The Tribunal finds from a study of the record that the claimants left their employment by reason of a labor dispute. . . . The Tribunal further finds that the dispute ended as of May 10, 1978, when the claimants applied to the City to be rehired. By this time city operations had returned to normal and the claimants had been permanently replaced in their jobs . . .
. . . The determination of the Agency holding the claimants ineligible for benefits under the provisions of Section 4 (f) of the Arkansas Employment Security Act is affirmed . . .

The Board of Review made the following findings and conclusions of law:

The claimants appealed to the full Board of Review from that part of the decision of the Appeal Tribunal which affirmed Agency determinations denying claimants benefits under the provisions of Section 4 (f) of the Arkansas Employment Security Law beginning April 12, 1978 and through May 13, 1978.
The employer appealed to the full Board of Review from that part of the decision of the Appeal Tribunal which held that beginning May 14, 1978, the claimants were eligible for benefits under this section of the Law.
After a consideration of the evidence, the full Board of Review is of the opinion that the decision of the Appeal Tribunal in this case ... is correct. . . . That decision is hereby adopted as the decision of the full Board of Review.
The claimants are ineligible for unemployment benefits under the provisions of Section 4 (f) of the Arkansas Employment Security Law beginning April 12, 1978, and through May 13, 1978. Beginning May 14, 1978, the claimants are eligible for unemployment benefits under this section of the Law.

It is settled law that an appellate court will not consider questions raised for the first time on appeal. Issues are resolved upon a record that is properly constructed at the trial level; and the appellant has the duty, unless the appellee deems the transcript deficient, to tender a record containing all of the evidence relevant to his case. Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978); Palmer, et al v. Cline, 254 Ark. 393, 494 S.W. 2d 112 (1973); Rules 5 and 6 of Rules of Appellate Procedure.

We hold that the decision of the Board of Review is supported by substantial evidence and, accordingly, we affirm.

       On April 28, 1978, at the request of appellant, the Chancery Court of Sebastian County issued an injunction enjoining all picketing at appellant’s installations. The Chancery Court’s decree further enjoined the parties to “diligendy pursue the administrative remedies available to each of them, specifically including the grievance and arbitration provisions of the parties working agreement.”

       Appellant's petition for review before the Board of Review states:

        “The appellant appeals from the decision of the Appeals Referee, and petitions the Board of Review to review ail of the records and the testimony and render its decision thereon.”
      While appellant’s memorandum brief to the Board of Review makes reference to § 81-1106 (a), we are persuaded that the only issue submitted to the Board of Review involved § 81-1105 (f) regarding a claim of benefits during a labor dispute.
      While a copy of the arbitration proceeding was made a part of the record, it is readily apparent that neither the Appeals Referee nor the Board of Review dealt with the merits of the labor dispute. It seems clear that in order to deal with the question whether appellees voluntarily left their employment without cause necessarily involves the merits of the dispute, a task which courts are unwilling to assume where, as here, it is a labor-management controversy. Lawrence Baking Co. v. Michigan Unemployment Compensation Commission, 13 N.W. 2d 602.

       Appellant recognizes that Little Rock Furniture Mfg. Co. v. Commissioner of Labor, 227 Ark. 288, 298 S.W. 2d 56 (1957) holds that if a claimant is disqualified under one subsection, he may not be disqualified for the same conduct under another subsection, but argues that the term “same conduct” affords a basis for recognizing that one may be disqualified under more than one subsection, “if the second disqualification is based on different conduct or circumstances.” We deem it sufficient to state that appellant’s argument is not persuasive given the circumstances surrounding the instant case.

       It is settled that a strike does not terminate the employer-employee relationship. The refusal of an employer to permit striking employees to return to their employment creates, as here, the unemployed status. National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938); Ayers v. E. F. Johnson Co., 70 N.W. 2d 296 (1955).


author: David Newbern, Judge. George Howard, Jr., Judge,

text:
    Mary Naomi JOHNSON, Employee v. VALMAC INDUSTRIES, Self-Insured Employer
    CA 80-37
    599 S.W. 2d 440
    Court of Appeals of Arkansas
    Opinion delivered May 14, 1980
    Released for publication June 4, 1980

      Tatum & Sullivan, P.A., for appellant.

      Wright, Lindsey & Jennings, for appellees.
   David Newbern, Judge.

In this workers’ compensation case the claimant fell while taking a “break” in the company’s breakroom. She struck her back on the floor and her neck on the picnic table at which she was attempting to seat herself. She was seen by a doctor for symptoms she felt were directly related to her fall. She later was referred to other doctors who diagnosed a malignant brain tumor. The question for the commission was whether her fall had aggravated her brain tumor, thus making her treatment, which ultimately included a craniotomy and partial removal of the tumor, compensable. The commission found in favor of the employer, and we are asked to reverse because the “preponderance of the evidence does not support the opinion of the . . . commission.” We have no authority to address that issue, thus we will treat the appeal as one questioning whether there was substantial evidence to support the commission’s determination.

Two physicians testified by deposition. Dr. Pennington, the local physician who treated the claimant for her initial symptoms resulting directly from her fall, said he felt “in retrospect” the tumor probably caused the claimant’s loss of coordination which resulted in the fall. At some points in his testimony Dr. Pennington said the fall “possibly aggravated” the tumor. At other points, he seemed to take a more definite stance, saying the fall “more than likely” accelerated the growth of the tumor. An example of the equivocal nature of his testimony is as follows:

Q. Now you stated in a later report that the tumor could have been aggravated, I’m referring to that report of May 29 I believe, you said that the fall this patient had while working at Valmac could have aggravated her brain tumor. Is this your opinion that the fall did aggravate the tumor or simply that this is a possibility?

A. I believe I could say that it did. The work and the fall.

Dr. Williams, the surgeon who performed the craniotomy, was equally equivocal. His statement that the trauma could have aggravated the tumor, and could have caused the symptoms to appear sooner than in the natural course of the tumor’s growth, were based upon the history given to him by friends and relatives of the claimant. At one point, however, he testified that a “friend” had said the personality change observed in the claimant had been coming on for “a few months,” which would have placed it at a time before the fall occurred. Dr. Williams testified he could not recall whether there was evidence of external head injury, and he said he found no evidence of a contusion to the brain. His testimony was that a brain tumor causes symptoms such as loss of coordination and body function when, because of its growth, it fills the cranial cavity normally occupied by brain tissue, thus putting abnormal pressure upon some portion of the brain. He said trauma, such as a fall, resulting in a contusion to the brain and tumor could cause an enlargement which would bring on the symptoms prematurely. He further testified he knew of no medical evidence that trauma could cause the appearance or accelerated growth of such a tumor. Although Dr. Williams clearly stated the aggravation was a possibility in this case, his testimony culminated in the following exchange:

Q: All of the symptoms that she manifested would have developed from a malignant brain tumor even without the intervention of some trauma.
A: Eventually.
Q: Is there any way you can accurately predict how fast these symptoms would come on?
A: No.
Q: Well, are you speculating that there might be some connection between the fall and the brain tumor or —
A: Yes, I have no medical proof of that. I can only take the word of the family that something happened to her.
Q: You were not able to substantiate it by anything that you found during the course of your operation or from your physical examination of her?
A: No, but again it wouldn’t be uncommon that I wouldn’t be able to substantiate it.
Q: You’re saying I take it that this might have aggravated her condition, but you couldn’t say with any degree of certainty that it did?
A: That’s correct.

The claimant and her husband both testified that her condition had deteriorated steadily since the fall. The husband said had there been evidence of symptoms before that time, he would have noticed them. From their combined testimony, it appears the fall occurred on a Wednesday morning, and the claimant continued to work the remainder of that week. She took “vacation” beginning Monday of the following week, in hopes she would recover from pain she felt was due to her fall, and when she failed to improve she sought medical attention which ultimately resulted in the discovery of the tumor.

The standard of review by this court of cases of this nature is set out clearly in Ark. Stat. Ann., § 81-1325(b)(4) (Supp. 1979). We are permitted to reverse the determination of the commission if its “order or award was not supported by substantial evidence of record.” The Arkansas Supreme Court has struggled against this standard in many cases. See, e.g., Eddington v. City Electric Co., 237 Ark. 804, 376 S.W. 2d 550 (1964), where the “liberal construction” rule was stated but the “substantial evidence” rule was recognized as controlling. In one case our supreme court, or at least three of its justices, faced squarely up to the problem of applying this strict, statutory standard of review in this area of social and remedial legislation which is universally said to require “liberal” treatment. Boyd Excelsior Fuel Co. v. McKown, 226 Ark. 174, 288 S.W. 2d 614 (1956). In his dissent in that case, Justice George Rose Smith made it clear that it is impossible to reconcile a holding, based on the “liberal construction” doctrine, that all doubtful cases must be resolved in favor of the claimant with the statutory requirement that the commission be affirmed in any case where there is substantial evidence to support its decision. Like Justice Smith, we have no quarrel with the philosophy of workers’ compensation, and certainly none with the notion that the act should be interpreted whenever there is doubt as to its meaning, in favor of the claimant. But to say that when there is doubt remaining as to a factual issue, and the doubt has been caused by conflicting or equivocal testimony, the resolution of that doubt by the commission must always favor the claimant, is to rob the commission of its fact-finding function which is definitively prescribed by the statute and not to be deprived by us.

This court has had occasion to use both the “substantial evidence” standard of review and the “liberal construction” standard of statutory interpretation in the same case. Continental Insurance Co., et al. v. Richard, Adm’x, 268 Ark. 671, 596 S.W. 2d 332 (Ark. App. 1980). They are not inconsistent when applied to their respective, proper areas of concern. In Watson v. Conway Memorial Hosp., 268 Ark. 680, 595 S.W. 2d 946 (Ark. App. 1980), we also referred to both of these concepts. If the latter decision left doubt as to our intent, we wish to erase it here by saying we do not intend to deny or subvert the clear legislative mandate of the “substantial evidence” rule.

In Copeland v. Dancers Corp., 268 Ark. 650, 595 S.W. 2d 940 (Ark. App. 1980), we reversed the commission because we could find no substantial evidence in support of its determination that a compensable injury had not aggravated a pre-existing condition. We would have affirmed the commission in that case had we been able to say the evidence singled out by the commission to support its order was substantial. There, we simply felt the commission had misinterpreted a physician’s testimony. When the interpretation we deemed correct was placed upon that testimony, it left no substantial evidence to support the order.

The case before us now is different. Here we have testimony from which a reasonable fact-finder could conclude there was no aggravation of the claimant’s pre-existing condition. Although the testimony of the doctors to the effect that the aggravation could have ocurred could have been given credence by the commission, the question it had to resolve was whether a preponderance of the evidence showed the aggravation did occur. In cases where the medical testimony is as uncertain as it is here, and where it could so clearly lead the finder of fact to either of two contrary conclusions, we will not reverse the commission, as the “substantial evidence” supports whichever determination it makes. That is not to say, that in cases where we feel further development of the evidence would be productive we would not reverse and remand for that purpose, but that is not the case before us.

Aggravation cases are difficult. After addressing evidentiary and review problems surrounding the cases involving aggravation of a coronary weakness, Professor Larson says the following with respect to cancer cases:

Similarly, there is controversy on the relation between trauma and the causing or spreading of cancer. Thus, Dr. Carroll J. Beilis has written that “[t]rauma as an inciting or aggravating mechanism does not have a place in cancer development, and schooled pathologists do not include injury as a mechanism by which cancer is initiated or stimulated.” It will be found, then, that denials of compensation in this category are almost entirely the result of holdings that the evidence did not support a finding that the employment contributed to the final result. Whether the employment aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact, not law, and a finding of fact on this point by the commission based on any medical testimony, or, in the commoner afflictions where the commissioners themselves have acquired sufficient medical expertise, based on the commission’s expert knowledge even without medical testimony, will not be disturbed on appeal. [1 Larson, Workmen’s Compensation Law, § 12.20, pp. 3-316 and 3-329 (1979). Footnotes omitted.]

We hold that if there is substantial evidence in the record that aggravation of a pre-existing malady did not occur, we will decline to reverse the commission’s finding in favor of the employer. See, Starrett v. Namour, 219 Ark. 463, 242 S.W. 2d 963 (1951). In this case, we find substantial evidence to support the commission’s decision.

Affirmed.

Judge Howard dissents.

George Howard, Jr., Judge,

dissenting. It is settled law that whether the decision of the Workers’ Compensation Commission is supported by substantial evidence is a question of law and not a question of fact. A review of the medical testimony in this record dictates a holding that the claimant — a 57 year old white female, possessing a ninth grade education, and who was employed by respondent for a period of 25 years — sustained an injury to her back and neck, when she fell on a concrete floor striking her neck on a table, which aggravated a pre-existing brain tumor.

The medical evidence in the record sustaining this posture is as follows:

Dr. James O. Pennington, claimant’s family physician, testified:

Q. In what way or mechanically, Doctor, how do you think the fall which you described that you recall aggravated the tumor?
A. Well, just the stress from her working with this tumor and the strain and the jar from the fall, although she didn’t hit anything the jerking of her neck and the jerking of her spine and the sudden fall to the floor would naturally cause an impact on her head and neck and spine.
Q. What if the aggravation, or if it did in some way affect the tumor in what way did it affect the tumor? What did that circumstance do as far as the tumor was concerned in your opinion?
A. It could have caused swelling of the tumor and possibility of the — I would suspect that area was very vascular and it could have caused a little hemorrhage of that area and could have speeded up the onset of symptoms from the tumor. (Emphasis added)

Dr. Ronald N. Williams, a neurologist, testified:

Q. Based on your examinations of Mrs. Johnson and the surgery and the history that you obtained from her family, both before and after surgery, how likely is it that her fall aggravated the tumor?
A. I could not put a probability on that. As I said I rely solely on the history when I do something like that. And relying on history, I’m relying on the people that gave it to me and I believe they are honest people, and according to them something happened to this lady following that fall.
Q. If these people are correct in their history, we can’t know that, but assuming they are for the purpose of that question, could you say it is more likely than not that it did aggravate the tumor?
A. Yes, I think so.
Q. And when you are able to say that then does that also mean that the history of the fall is not inconsistent with the other symptoms?
A. It’s not inconsistent with aggravating the progression of the symptoms caused by the brain tumor.
Q. There’s nothing about Mrs. Johnson’s symptoms or her tumor or the development of it that would lead you to believe that was no trauma?
A. No, I have to accept the history as it was given to me.
Q. And you don’t have any trouble accepting that history do you?
A. No.

An injury which brings about an aggravation of a preexisting condition is compensable under the Workers’ Compensation Law. Hamilton v. Kelly-Nelson Construction Co., 228 Ark. 612, 309 S.W. 2d 323 (1958); Tri-State's Construction Co. v. Worthen, 224 Ark. 418, 274 S.W. 2d 352.

In Boyd Excelsior Fuel Co. v. McKown, 226 Ark. 174, 288 S.W. 2d 614 (1956), the Arkansas Supreme Court made the following relevant comment:

“Many times, we have held that the finding of the Commission will be sustained if supported by any substantial evidence. . . . Here, it does not appear that there is any substantial evidence to support the Commission’s finding. The evidence in this case is overwhelming to the effect that the claimant is permanently and totally disabled, and that his disability is due to the condition of his lungs; circumstantial evidence points to silicosis as the cause of the disability. All of the doctors who examined the claimant over a period of time stated that his disability is due to silicosis; evidence to the contrary is very weak and not substantial. Whether there is substantial evidence is a matter of law . . .
“The law of this State is that workmen’s compensation cases should be broadly and liberally construed, and that doubtful cases should be resolved in favor of the claimant. . . .
“If this law has any meaning or force or effect, it should be applied here. . . .”

The majority recognizes the rule expressed in Boyd, but dwells on a dissenting opinion in Boyd and then concludes:

“. . . But to say that when there is doubt remaining as to a factual issue, and the doubt has been caused by . conflicting or equivocal testimony, the resolution of that doubt by the commission must always favor the claimant, is to rob the commission of its fact-finding function which is definitely prescribed by the statute and not to be deprived by us.”

But the majority obviously fails to perceive that the basic purpose of workers’ compensation is to provide for employees, or their dependents, economic aid where employees have suffered injuries or death in connection with their employment. To further this socio-economic purpose, where one of two opposing inferences would support an award and the other would defeat it, a construction favorable to claimant should be adopted if factually sound even though an equally substantial inference thereby fails. Simmons National Bank v. Brown, 210 Ark. 311, 195 S.W. 2d 539 (1946).

For the reasons indicated, I respectfully dissent.


author: J. Fred Jones, Special Judge.

text:
    THE FIRESTONE TIRE & RUBBER COMPANY v. Artie LITTLE
    CA 79-273
    599 S.W. 2d 756
    Court of Appeals of Arkansas
    Opinion delivered May 14, 1980
    Petition for review denied June 16, 1980
    Petition for rehearing denied June 16, 1980
    Released for publication June 18, 1980

      Erwin N. Griswold, Jones, Day, Reavis & Pogue, Washington, D.C.; Patrick W. Lee, Jennifer Waters Hitt, John I. Stewart, Jr., Crowell & Moring, Washington, D.C. Rose, Nash, Williamson, Carroll, Clay & Giroir, by: Phillip Carroll', and Howard W. Brill; Ronald D. Rotunda, Champaign, 111., and Michael P. Mahony, of Mahony & Yocum, of counsel, for appellant.

      Shackleford, Shackleford, Phillips, P.A., for appellee.
   J. Fred Jones, Special Judge.

In a suit for personal injuries brought by Artie Little against Harvey Shelton, Firestone Tire and Rubber Company and Jackson Smith, d/b/a Jackson Smith Mobil Service Station, the Union County Circuit Court entered a default judgment for $125,-000.00 against Firestone and denied Firestone’s motion to set the judgment aside. This is an appeal by Firestone from the order denying the motion and we reverse.

The facts as appear from the record are as follows: Harvey P. Shelton owned a truck and trailer he used in hauling logs and pulpwood. He purchased the trailer from a Mr. Bolding five years before the accident here involved and did not know how long Bolding had owned and used the trailer. The trailer had two sets of dual wheels under the rear end and on July 20, the front outside tire on the left side of the trailer went flat, Shelton’s driver took the trailer to Jackson Smith Mobile Service Station where Smith removed the wheel and flat tire from the trailer. On the following morning, July 21, Shelton’s driver returned the trailer to Smith’s station where Smith remounted the tire on the trailer and Shelton’s driver started to the log woods with the truck and trailer. When the truck and trailer had proceeded about four blocks from Smith’s service station the tire and rim, which Smith had just mounted, came off the trailer and struck and injured Mrs. Little who was walking along the edge of the roadway.

The rim involved in this case was a two piece rim as distinguished from three piece rims on all the other wheels on the trailer. It appears that the two piece rim separates and locks in the middle but the record before the trial court at the time the default judgment was entered does not reveal when the rim was first installed on the trailer or its age or condition. There was evidence submitted at hearing on motion to set aside the default judgment to the effect the rim was manufactured by Firestone in I960, that it was rusty, deformed by being hammered into place, and appeared to have been run on a flat tire.

On August 31, 1978, Mrs. Little filed her complaint against Shelton alleging res ipsa loquitur and negligence in failure to maintain his truck in safe condition for operation on highways, and alleging damages in amount of $150,000.00.

Shelton filed a demurrer to the comlpaint and then filed a timely answer amounting to a general denial except that he admitted his truck was being operated at the time and place alleged. He stated that if the plaintiff sustained any injuries as alleged the same occurred as a result of a defect in manufacturing the wheel or as a result of acts of persons or companies unknown to Shelton.

On April 3, 1979, Mrs. Little filed an amendment to her complaint making Firestone and Jackson Smith parties defendant. The amended complaint alleged that Firestone negligently and carelessly designed, constructed, manufactured, assembled, installed and inspected the multi-piece wheel and such negligence and carelessness caused the multipiece wheel to become detached from the log truck and strike and injure Mrs. Little. The amended complaint alleged violation of express and implied warranties, strict liability, malicious and wanton disregard for the rights of Mrs. Little on the part of Firestone and prayed judgment for punitive damages against Firestone in amount of $250,000.00.

The amended complaint alleged that Jackson Smith “. . . in mounting the multi-piece wheel and tire carelessly and negligently failed to properly affix the said wheel and tire to the log truck when he knew or should have known such multipiece wheel was unsafe and would become detached from the vehicle, that he failed to give proper and necessary warning of the unsafe condition and failed to properly inspect the multipiece wheel and tire after mounting same to the log truck of Shelton.” The amended complaint alleged the doctrine of res ipsa loquitur was applicable against both Firestone and Smith, and further alleged:

As a result of the carelessness and negligence of the defendant, Firestone Tire and Rubber Company and Jackson Smith, d/b/a Jackson Smith Mobil Service Station, the plaintiff, Artie Little, sustained injuries and damages as hereinbefore set out in the sum of $150,-000.00.

The alleged elements of damage were set out in the original complaint and it was annexed to and made a part of the amended complaint.

On April 18, 1979, Smith filed his separate answer which states:

1. He denies each and every allegation of the complaint and of the first amendment to complaint not herein specifically admitted.
2. He admits the allegations of paragraph 2 of the complaint.

Summons was issued on Firestone’s agent for service in Arkansas on April 4, 1979 and Firestone filed an answer of general denial out of time on April 30, 1979. When Firestone failed to answer by April 25, the last day for answering under Ark. Stat. Ann. § 27-1135, trial was set for the following day, apparenly on oral motion of Mrs. Little for default judgment. a jury trial was waived by the plaintiff and the matter was submitted to the trial court sitting as a jury.

Testimony as to the extent of Mrs. Little’s injuries and damage was submitted at the hearing on April 26 and the trial court’s findings as to damages reads in part as follows:

. . . from the evidence the Court finds that the plaintiffs damages have amounted to and that she’d be entitled to a judgment for compensatory damages for a hundred and twenty-five thousand dollars.

Although Shelton appeared by attorneys at the hearing on April 25, and the judgment so recites, the entire amount of Mrs. Little’s damages, as found by the court in the sum of $125,000.00, was assessed against Firestone in the default judgment.

Apparently Mrs. Little and her attorneys did not intend to take default judgment against Firestone for the entire amount of her damages because in connection with an effort on the part of Firestone to remove the case to Federal Court, and in connection with successful motion to remand, counsel for Mrs. Little made and filed an affidavit which states in part as follows:

When Firestone Tire and Rubber Company defaulted by failing to answer as provided for by law, judgment was taken by default pursuant to Ark. Stat. Ann. § 29-401 et seq. At no time, however, did either Mrs. Little or I intend to abandon her claims against Shelton or Smith or to sever her cause of action against Firestone from her cause of action against Shelton and Smith. To the contrary, it was both my intention and the intention of Mrs. Little to fully pursue her claims against all three defendants and the taking of the default judgment against Firestone was a means of continuing to pursue her claims and was done as mandated by Ark. Stat. Ann. § 29-401.
It has been, and remains, the intention of Mrs. Little and my intention to proceed in the Union County Circuit Court against all three defendants.

On May .2, 1979, Firestone filed its motion to set aside the default judgment. The motion was taken under advisement at hearing had May 24, 1979, and order denying the motion was entered on July 3, 1979-

On appeal to this court Firestone has designated five points on which it relies for reversal, the first point being as follows:

It was error to enter a default judgment against Firestone when other defendants had filed timely answers containing defenses which inured to the benefit of Firestone.

Since we agree with the appellant on its first point, we do not reach the other points designated.

Our courts have many times pointed out that default judgments are not favored in the law. 49 C.J.S., Judgments, § 187, with cases cited in foot note 24, Allied Chemical Corp. v. Van Buren School Dist. No. 42, 264 Ark. 810, 575 S.W. 2d 445 (1979), Winters v. Lewis, 260 Ark. 563, 542 S.W. 2d 746 (1976).

A default judgment should not only be set aside for excusable neglect, unavoidable casualty or other just cause as provided in the statute authorizing default judgments; but a default judgment should not be entered at all, and if entered it should be set aside, when the action is against several defendants jointly, and the defense interposed by an answering defendant is not personal to himself but is common to himself and the non-answering defendant.

There is no question in this case that the general denials of Shelton and Smith denied separate allegations in the complaint of Mrs. Little — it was so provided by statute when the answers were filed. Ark. Stat. Ann. § 27-1121 set out what was to be contained in an answer and the statute provided:

It shall be sufficient to constitute a denial of each allegation of the complaint for the defendant to state in his answer that he denies each and every material allegation of the complaint, and such statement shall have the effect of denying each separate allegation thereof. . . .
In 78 A.L.R. 939 is found a statement as follows:
The courts are agreed with practical unanimity that in actions against several defendants jointly, where the defense interposed by the asnwering defendant is not personal to himself (as is the defense of infancy, coverture, or bankruptcy on the part of the pleader), but common to all, as where it goes to the whole right of the plaintiff to recover at all, as distinguished from his right to recover as against any particular defendant, or questions the merits or validity of the plaintiffs entire cause of action in general, or his right to sue, such defense, if successful, inures to the benefit of the defaulting defendants both in actions at law and suits in equity, with the result that final judgment must be entered not merely in favor of the answering defendant, but also in favor of the defaulting defendants.

In 71 C.J.S., Pleadings, § 117, at p. 268 is found the statement as follows:

While as a general rule one defendant cannot in his answer assert the rights of a codefendant who does not answer, a defense which goes to the merits of the whole case as tending to show no cause of action in plaintiff may, when pleaded by one defendant, inure to the benefit of his codefendants.

It is not every answer filed by a defendant that inures to the benefit of a nonanswering codefendant. It is only when the answering defendant answers an allegation directed at and common to his nonanswering codefendant. The purpose and effect of an answer by general denial is to put the plaintiff to proof on each of the allegations made in the complaint.

It is not the purpose of default judgment to relieve an answering defendant of his liability without proof or trial by simply taking a default judgment for the full amount of damages against a codefendant who fails to answer within the twenty days fixed by statute.

In the case of Coggin v. Barfield, 8 So. 2d 9, the Supreme Court of Florida said:

The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.

The precise question here was presented to our Supreme Court in the case of Southland Mobile Home Corporation v. Ricky Winders and wife, 262 Ark. 693, 561 S.W. 2d 281 (1978). There the purchasers of a mobile home brought suit against the manufacturer and seller to recover the value of the mobile home destroyed by fire. The complaint alleged joint and several liability because of defective conditon when supplied, negligence in inspecting, and breach of express and implied warranties. The manufacturer filed an answer denying “each and every material allegation contained in the complaint.” The seller failed to answer resulting in a default judgment. A motion to set aside the judgment was denied by the trial court and on appeal the Supreme Court said:

The motion should have been granted. The appellees are mistaken in arguing . . . that there must be a derivative liability in order for the answer of one defendant to inure to the benefit of another. . . . The true test is whether the answer of the non-defaulting defendant states a defense that is common to both defendants. . . . Here the effect of the manufacturer’s answer was to deny the plaintiffs allegations of negligence and breach of warranty. That denial went to the existence of the plaintiffs cause of action, asserted a defense common to both defendants, and therefore inured to the benefit of the appellant.
The same or similar language was employed in the following cases: Allied Chemical v. Van Buren Sch. Dist. No. 42, 264 Ark. 810, 575 S.W. 2d 445 (1979), Rogers v. Watkins, 258 Ark. 394, 525 S.W. 2d 665 (1975), Burt v. Henderson, 152 Ark. 547, 238 S.W. 626 (1922), Simpson & Webb Furniture Co. v. Moore, 94 Ark. 347, 126 S.W. 1074 (1910), Carpenter v. Ingram, 77 Ark. 299, 91 S.W. 24 (1905), Lowe v. Walker, 77 Ark. 103, 91 S.W. 22 (1905), Fletcher v. Bank of Lonoke, 71 Ark. 1, 69 S.W. 580 (1902); and Bruton v. Gregory, 8 Ark. 177 (1847).
In the case at bar Shelton admitted his residence as alleged and admitted his log truck was being operated at the time and place alleged in the complaint. He specifically denied that an accident occurred or that Mrs. Little was injured.
Smith apparently intended to admit. his residence as alleged in paragraph 2 of the amended complaint; but he did admit the injuries at the time and place and in the manner set out in paragraph 2 of the complaint. By his denial of each and every other material allegation, he denied that he knew or should have known that the multi-piece wheel was unsafe and would become detached from the motor vehicle and denied that he failed to inspect and warn of unsafe conditions. Shelton and Smith both denied the application of res ipsa loquitur. These same allegations were made against Firestone.
As already pointed out, a general denial puts in issue the basic elements in every law suit, regardless of the differing allegations of fault as to each defendant. We conclude the general denials by Shelton and Smith placed in issue the vital elements of the plaintiffs law suit. Their answers included a denial the accident happened, alleged if it did happen it did not result in injury or damage to the plaintiff, denied negligence and denied res ipsa loquitur is applicable. The answers invoked defenses common to all defendants and we conclude the answers inure to the benefit of Firestone.

The judgment is reversed and the cause remanded.

Howard and Newbern, JJ., disqualified and not participating.

Warren E. Wood, Special Judge, joins in this opinion.


author: Ernie E. Wright, Chief Judge.

text:
    Tom ELLIS and Wife, Kathleen ELLIS v. Donald W. ROBINSON
    CA 80-36
    600 S.W. 2d 25
    Court of Appeals of Arkansas
    Opinion delivered May 21, 1980
    Released for publication June 11, 1980

      Ed Alford, for appellants.

      Michael Castleman, for appellee.
   Ernie E. Wright, Chief Judge.

On October 16, 1978, the appellants entered into a written option with appellee Robinson, granting appellee the right to purchase 80 acres of land in Howard County for the sum of $125,000.00. The option was irrevocable for a period of three months from date, and would remain in force thereafter for an additional nine months, unless earlier terminated by the appellants by ten days written notice. In January, 1979, appellants orally informed the appellee they were revoking the option. On February 28, 1979, the appellee served on appellants by certifled mail an acceptance of the offer, and in March the attorney for appellee informed the sellers an F.H.A. loan commitment had been obtained and requested an abstract of title certified to date as provided by the option.

The sellers learned the loan commitment was for $75,-000.00 and that appellee was proposing to assume the sellers’ existing Federal Land Bank mortgage debt, but on May 11, 1979, the appellee obtained a commitment from the Federal Land Bank for a loan for most of the remaining purchase price not covered by the F.H.A. loan, and the sellers were to be released from the existing Federal Land Bank mortgage. The appellee proposed to pay out of his own funds the small amount not covered by the two loans.

Appellants declined to furnish an abstract of title, and appellee filed suit on April 11, 1979, for specific performance and for damages resulting from sellers’ refusal to perform. Appellants duly answered the complaint.

After trial the court issued a memorandum opinion finding the appellee had properly accepted the option, that appellants had not given a ten day written notice of intention to terminate the option, the buyer had made proper demand for the abstract and appellants had failed to tender the abstract. The court ordered specific performance, and awarded appellee $2,360.00 damages on his testimony estimating damages allegedly sustained by him because of appellants’ failure to close the sale. The alleged damages concerned hay crops from the land and anticipated broiler production.

Appellants assert three points for reversal, (1) the court erred in granting appellee relief because of appellee’s repudiation and anticipated breach of the option agreement, (2) the option was null and void, and (3) there was insufficient evidence to support an award of damages.

The evidence is undisputed that appellee timely accepted the option and the appellants’ only valid objection to complying with the contract was eliminated when it developed the Federal Land Bank would make a loan for the additional funds needed for closing, and appellants would be released from the existing mortgage.

The court correctly granted specific performance, and we find no merit in appellants’ argument that appellee was required to tender payment upon acceptance or exercise of the option. Newberry v. McClaren, 264 Ark. 735, 575 S.W. 2d 438 (1979). The agreement made no requirement of tender of the purchase price at time of acceptance of the option. The evidence shows appellee had tentative arrangements for the necessary funds to close, but final arrangements could not be made absent the abstract to be furnished by appellants.

However, as to the judgment for damages awarded appellee, the record reflects the only evidence to support a judgment for damages was the testimony of appellee giving his estimates of what his losses were in not obtaining possession of the lands. Such testimony, however, did not embrace evidence of the interest expense that appellee would have incurred had the sale been closed, and the evidence is otherwise highly speculative and conjectural. We conclude the evidence is not of such d substantial nature as is required to support the judgment. Marathon Oil Company v. Sowell, 191 Ark. 865, 88 S.W. 2d 82 (1935).

The decree of the court is modified to delete the award of damages, and affirmed as modified.