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

text:
    Southern Farm Bureau Casualty Insurance Company v. Richard A. Daniel
    5-4903
    440 S.W. 2d 582
    Opinion Delivered May 5, 1969
    [Rehearing denied June 9, 1969.]

      Shillman & Furrow for appellant.

      Spears & Sloan for appellee.
   Conley Byrd, Justice.

The issues here are (1) whether punitive damages arising out of an accident are recoverable within the terms of appellant Southern Farm Bureau Casualty Insurance Company’s automobile liability policy, and (2) whether such recovery is contrary to the public policy of the state of Arkansas. It is stipulated that as a result of an automobile accident between Larry White and appellee Bichard A. Daniel, the jury returned a verdict for Daniel in the amount of $7,000 compensatory damages and $5,000 punitive damages. The policy in question, a comprehensive automobile policy, provides as follows :

"To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages:
“Coverage A. Because of bodily injuries sustained by any person, and
“Coverage B. Because of injury to or destruction of property, caused by accident and arising out of ilie ownership, maintenance, or use of any automobile, including loading- and unloading thereof.”

So far as our research reveals, this is the first time this issue has come before this court. Cases from other jurisdictions can be found holding both ways, see American Surety Co. of N. Y. v. Gold, (10th Cir. 1966), 375 F. 2d 528, 20 A.L.R. 3rd 335. Those courts which accentuate heavily the punishment aspect of punitive damages hold that it is against public policy to permit them to be recovered, Northwestern National Casualty Company v. McNulty, (5th Cir. 1962), 307 F. 2d 432. Other courts point out that the line of demarcation between a jury’s allowance of punitive damages and compensatory damages is too thin and exacting to apply coverage in the one case and deny coverage in the other. Such courts, Lasenby v. Universal Underwriters Ins. Co., 214 Tenn. 639, 383 S.W. 2d 1 (1964), place much less emphasis on the punishment aspect of punitive damages and permit a recovery under language similar to that involved here. They point out that there is nothing to prevent the insurer from ¡excluding the payment of punitive damages by appropriate policy provisions.

Our cases, Kroger Grocery & Baking Co. v. Reeves, 210 Ark. 178, 194 S.W. 2d 876 (1946), hold that there can be no recovery for punitive damages unless actual damages are suffered and assessed. Such damages have been defined as damages imposed by way of punishment and as those given or awarded in view of the supposed aggravation of the injury to the feelings of the plaintiff by the wanton or reckless conduct of the defendant, Erwin v. Milligan, 188 Ark. 658, 67 S.W. 2d 592 (1934). Punitive damages are awarded upon a showing of gross and wanton negligence, Holmes v. Hollingsworth, 224 Ark. 347, 352 S.W. 2d 96 (1961), and recovery thereof has been permitted against an employer for acts or admissions of an employee even though such acts were done without the employer’s knowledge or authorization and were not subsequently ratified by him, Miller v. Blanton, 213 Ark. 246, 210 S.W. 2d 293 (1948).

As we read the policy herein it agrees to pay oil behalf of the insurer all sums which the insured shall become LEGALLY OBLIGATED TO PAY AS DAMAGES, because of bodily injuries sustained. When we consider that under our law, one cannot become legally obligated to pay punitive damages unless actual damages have been sustained and assessed, we find that punitive damages constitute a sum which the insured becomes legally obligated to pay as damages because of bodily injuries sustained, see Carroway v. Johnson, 245 S.C. 200, 139 S.E. 2d 908 (1965).

Neither can we find anything in the state’s public policy that prevents an insurer from indemnifying its insured against punitive damages arising out of an accident, as distinguished from intentional torts. Since we have permitted punitive damages to be assessed against an employer under the doctrine of respondeat superior even in the absence of the employer’s knowledge or authorization of the employee’s acts, we can perceive of no good reason why an employer should be prohibited from insuring himself against such losses, since the losses are in effect a business loss — i.e., a calculated risk of doing business.

Ft lias been suggested that our decision herein should be controlled by Arnold v. State, 220 Ark. 25, 245 S.W. 2d 818 (1952), wherein we held that a surety on a sheriff’s bond was not liable for punitive damages. We find that this ease is not controlling because such bonds are executed pursuant to statute and cover only the damages set forth in the statute. See Maryland Casualty Co. v. Baker, 304 Ky. 296, 200 S.W. 2d 757 (1947).

Affirmed.

Foulkman and Jones, JJ., dissent.

John A. Fugleman, Justice.

While the precise question has not been specifically decided in this state, I must dissent from the majority opinion because the result is wholly inconsistent with the theory of punitive damages in Arkansas, and with other decisions by this court. This action places the burden of punishment on parties not guilty. While it may be true that the insurance company which pays punitive damages on an automobile liability policy is not really punished, this is so only when these losses can be passed on by the insurance company to its policyholders in the form of increased premiums.

Under the Arkansas theory allowing punitive damages, I do not see how they can be said to be sums which an insured becomes legally obligated to pay as damages because of bodily injuries sustained by another person or because of injury to or destruction of property. A review of some of the statements made by this court as lo the nature and purposes of punitive damages will clearly show that the decision by the majority completely destroys the basic purpose for allowance of these damages.

The nature of both compensatory and punitive damages is treated in Vogler v. O’Neal, 226 Ark. 1007, 295 S.W. 2d 629. In that opinion we defined the sums which constituted damages because of bodily injuries. We. quoted from Coca-Cola Bottling Co. of Arkansas v. Adcox. 189 Ark. 610, 74 S.W. 2d 771, as follows:

‘‘The 'measure of damages for a physical injury to the person may be broadly stated to bo such sum, so far as it is susceptible of estimate in money, as will compensate plaintiff for all losses, subject to the limitations imposed by the doctrines of natural and proximate consequences, and of certainty, which he has sustained by reason of the injury, including compensation for Ms pain and suffering, for Ms loss of time, for medical attendance and support during tlie period of his disablement, and for such permanent injury and continuing disability as he had sustained.” (Emphasis mine.)

In treating punitive damages in the Volger case we recalled the announcement of a principle of law in Miller v. Blanton, 213 Ark. 246, 210 S.W. 2d 293, 3 A.L.R. 2d 203, when we adopted the language of the opinion in Ross v. Clark, 35 Ariz. 60, 274 P. 639, as follows:

“ ‘Punitive damages’ are not intended to remunerate the injured party for the damages he may have sustained. They are not to compensate; they are the penalty the law inflicts for gross, wanton, and culpable negligence, and are allowed as a warning or as an example to defendants and others. Because they are an example as to what the law will do for such conduct when it results in injury to the person or property of others, they are sometimes called exemplary damages.” (Emphasis mine.)

In Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W. 2d 96, we said:

* * * Punitive cla,mages are not intended, .to remunerate the injured parties for the damages sustained. Punitive damages are the penalty which the law inflicts on the guilty party, and are allowed as a warning or an example to others. What would be sufficient punitive damages against one person might be grossly excessive against another.” (Emphasis mine.)

Tn Erwin v. Milligan, 188 Ark. 658, 67 S.W. 2d 592, it was said that punitive damages are given by way of punishment “in addition to compensation for the loss sustained.” We have classified a judgment based upon punitive damages as somewhat of a windfall for a plaintiff. Dunaway v. Troutt, 232 Ark. 613, 339 S.W. 2d 613.

It seems crystal clear to me from these cases that punitive damages are no part of damages “because of bodily injuries” or “because of injury to property.”

The majority rely heavily upon the case of Carroway v. Johnson, 245 S.C. 200, 139 S.E. 2d 908 (1965). The result in that case is based substantially upon a statute which should be taken to be a statement of the public policy of South Carolina. Section 46-750.13, Code of Laws of South Carolina, (1962), requires that every policy of automobile liability insurance contain a provision “insuring the person ® * * against loss from the liability imposed by law for damages ® The South Carolina court had held in Laird v. Nationwide Ins. Co., 243 S.C. 388, 134 S.E. 2d 206 (1964) that one could not collect punitive damages under the uninsured motorist clause of his automobile insurance policy. The insurer in that ease agreed to pay all sums which the insured should be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury. In its opinion the court made a clear distinction between the language of the statute hi'rein above cited and the language of the uninsured motorist policy when it said:

“It is required by Section 46-750.13 of the Code that a liability insurance policy must insure ‘against loss from the liability imposed by law,’ while under the uninsured motorist coverage, which appears on said policy by endorsement, is for the benefit of the insured, and those qualifying as such, and does not insure ‘against liability imposed by law,’ but does obligate the insurer to pay the insured ‘all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.’ Clearly, the legislature, by using this differing language, recognized the distinction between liability coverage and the uninsured motorist endorsement.”

Tbat court rejected the idea tbat the uninsured motorist insurance covered punitive damages because there was no provision in the statutes which, either expressly or by implication, required that the uninsured motorist endorsement must insure against any and all liability, as was required in liability clauses. That court held in the Laird case, as I think we should, that the sums which one is legally entitled to recover as damages for bodily injury are compensatory damages only. It seems clear to me that the language of the policy in the Carroway case was construed as being in conformity with the South Carolina statute which required that liability insurance policies issued in that state insure against loss from any liability imposed by law for damages arising out of the ownership, maintenance, or use of a motor vehicle.

The majority also places reliance upon Maryland Casualty Co. v. Baker, 304 Ky. 296, 200 S.W. 2d 757 (1947). I cannot see how that case has any application whatever. It involved the requirements of a Kentucky statute with reference to the operation of taxicabs which the Kentucky court said must be read into the policy. Recovery was sought there for the assault of a passenger by a taxi driver. The decision hinged upon the statute. In treating the question, the Kentucky court said:

“This brings us to the question of whether there is any liability under the two policies. The determination of this question requires a construction of KRS 281.460 which is, in part, as follows: ‘ (1) Before any authorization for the operation of a taxicab or city bus is granted by the division under KRS 281.450, the applicant shall file with the director a good and sufficient bond with adequate corporate surety, payable to the Commonwealth, binding the obligor to pay any final judgment rend ered against him arising out of the death of or injury to any passenger, or loss of or damage to property ivhile in transit, or death of or injury to other persons or damage to their property, or any act or omission connected with the operation of motor vehicles hy the applicant.’ ” [Emphasis mine.]

"While tlie court did affirm a judgment which included punitive damages, these damages are not awarded there on the same basis as punitive damages are awarded in Arkansas. In Kentucky, punitive damages are considered compensatory. Tennessee Central R. Co. v. Brasher’s Guardian, 29 Ky. Law 1277, 97 S.W. 349 (3906). Punitive damages may be awarded in that state for gross negligence. Southern Railway Co. v. Barr’s Administratrix, 12 Ky. Law 3615, 55 S.W. 900 (1900). The court hold in the case last cited that it would be error to instruct a jury that punitive damages might be given by way of punishment and to furnish an example "to deter others from like practices. It- has been said that the purpose of the law which authorizes the recovery of punitive or exemplary damages in Kentucky is to remunerate for the loss sustained, not to inflict a penalty. The jury is permitted in that state to give these damages on account of the nature of the injury, when the commission of the act complained of is accompanied with circumstances of aggravation. Chiles v. Drake, 2 Metcalfe 346, 74 American Decisions 406 (1859).

Perhaps the first court to meet the problem here presented was the Supreme Court of Colorado in Universal Indemnity Ins. Co. v. Tenery, 96 Colo. 10, 39 P. 2d 776 (1934). In treating the propriety of the recovery of exemplary damages from an automobile liability insurance carrier, that court said:

££* * * This award was primarily for the punishment of Callahan for his wrongful acts and as a warning to others. It was in no wise compensation to the injured party for bodily injuries or actual loss occasioned by the negligence of Callahan. The insurance company did not participate in this wrong, and was under no contract to indemnify against such. In this particular matter the policy indemnifies against damages for bodily injuries, and nothing in addition is contracted for, and there is no further liability. The injured will not be allowed to collect from a nonparticipating party for a wrong against the public.”

The reasoning and logic of that case which is directly parallel to this one seems to me to be irrefutable. It was followed in Crull v. Gleb, 382 S.W. 2d 17 (Mo. App. 1964). In that case the Missouri court said that since the chief purpose of punitive damages is to punish the offender and to serve as a deterrent to similar conduct by others, it seems only just that the burden of paying punitive damages should rest ultimately, as well as nominally, on the party who actually committed the wrong. That court also said:

* * # Plaintiff would have already been made whole through his compensatory damages, and the insurance company, which had done no wrong, would be punished. There is no language in the policy that provides for the payment of judgments for punitive damages. The policy covers only damages for bodily injury and property damage sustained by any person. Punitive damages do not fall in this category. The $2,000 award of punitive damages to plaintiff was to punish defendant for his wrongful acts and as a warning to others. It was not to compensate plaintiff for bodily injury or property damage. The garnishee did not participate in the wrong, and was under no contract to indemnify as such.
* * * In order for the theory of punitive damages (i.e. punishment and deterrent) to work, the delinquent driver must not be able to transfer his responsibility for punitive damages to others. * * *
Public policy against such coverage is based on the thesis that wrong-doing is discouraged by the imposition of personal punishment. If a person is able to insure himself against punishment, he gains a freedom inconsistent with the establishing of sanctions against such misconduct. It is undisputed that insurance against criminal fines would be void as violative of public policy. The same public policy should invalidate any insurance contract against civil punishment that punitive damages represent.”

Other recent decisions following this line of reasoning are Nicholson v. American Fire & Casualty Ins. Co. 177 So. 2d 52 (Fla. App. 1965) and Esmond v. Liscio, (Allocatur refused) 209 Pa. Super. 200, 224 A. 2d 793 (1966).

Two of our United States Courts of Appeals have dealt with this matter in recent years and held punitive damages not recoverable on these policies. In treating virtually identical policy provisions in Northwestern National Casualty Co. v. McNulty, 307 F. 2d 432 (5th Cir. 1962) the court was dealing with Florida and Virginia law. It held that regardless of the construction to be placed on the contract, public policy Avould prevent the recovery of punitivo damages from an automobile liability insurance carrier, even if the policy should provide specifically therefor. This finding was based on the fact that the fund ion of punitive damages in the two states involved was for punishment and for deterrent. In a very thorough and comprehensive opinion, Judge Wisdom demonstrated that the purpose of punitive damages in both Florida and Virginia was for the protection of the public, punishment of the offender and warning and deterrent to others. These purposes are identical to the stated purposes in Arkansas. Judge Wisdom also pointed out tlmt the later eases in both states demonstrate that both states conform to the widely accepted basis for punitive damages for the purposes stated but not for compensation for the loss sustained by an injured party by reason of a tortfeasor’s wrongdoing. Judge Wisdom carefully distinguished the legal background in states in which an insurer was held liable for punitive damages. In speaking of the public policy permitting the recovery of punitive damages, Judge Wisdom said:

“ * * * To make that policy useful and effective the delinquent driver must not be allowed to receive a windfall at the expense of the purchasers of insurance, transferring his responsibility for punitive damages to the very people — the driving public — to whom he is a menace. We are sympathetic with the innocent victim here; perhaps there is no such thing as money damages making him whole. But his interest in receiving non-compensatory damages is small compared with the public interest in lessening the toll of injury and death on the highways ; and there is such a thing as a state policy to punish and deter by making the wrongdoer pay.”

In American Surety Co. of New York v. Gold, 375 F. 2d 523 (10th Cir. 1966) in an opinion by Chief Judge Murrah, the court was dealing with Kansas law. Basing its opinion upon the premise that Kansas law embraced a general concept of punitive damages (as does Arkansas law) and upon the law treated in the McNulty case, that court forecast that the Kansas courts would hold that such a policy did not cover punitive damages and held in favor of the automobile liability insurance carrier.

The cases hereinabove cited and referred to involve clauses in automobile liability insurance policies identical, or virtually identical, with the clauses involved here and apply the laws of states which treat punitive damages in the same way as they are treated in Arkansas courts and do not involve statutes which affect the result. 'With the exception of the Tennessee case cited in the majority opinion, cases reaching the result reached by the majority can bo distinguished, as some of them are, in the cited cases.

I am particularly surprised at the result reached by the majority in view of the fact that this court has recognized the general policy as to punitive damages and denied recovery from a surety in Arnold, Sheriff v. State, 220 Ark. 25, 245 S.W. 2d 818. I humbly submit that the casual treatment given this case by the majority does not distinguish it and that its doctrine should be controlling here. I quote the language of the court in that opinion, and, in doing so, submit that its rationale cannot lie harmonized with the result reached by the majority in this case. AVe said:

“By cross-appeal Burton contends that the court erred in correcting its judgment to relieve the surety of liability for punitive damages. This modification was correct. Punitive damages arc imposed to punish the wrongdoer, not to compensate the plaintiff for the officer’s breach of duty. It is therefore generally held that the surety is not liable for punitive damages unless the statute so provides. Yesel v. Watson, 58 N.D. 524, 226 N.W. 624, 64 A.L.R. 929; of Rest., Security, § 181. Our statute does not so provide. Ark. Stat. Ann. 1947, § 12-1101. ’’

This clearly shows that the reason for holding that the surety was not liable unless the statute so provided is that punitive damages for the officer’s breach of duty in a case in which he is liable for compensatory damages for false imprisonment are not compensatory. The statute inquired of Sheriff Arnold a bond conditioned that he would well, truly and faithfully discharge and perform the duties of his office. The false imprisonment was clearly a breach of that bond, so there was just as much justification for recovery of the punitive damages from the surety as there is for recovery from appellant here.

The majority seems to find some support in the fact that the recovery of punitive damages was allowed in Miller v. Blanton, 213 Ark. 246, 210 S.W. 2d 293, against an employer for acts of an employee even though done without the employer’s knowledge or authorization and not ratified by the employer. The majority seems to think that case involved an individual employer. That is not the case. The employer was a corporate defendant, Columbia Pictures Corporation. The authorities treated in the opinion in that case supporting the allowance of punitive damages all involved corporate employers. The support for the result reached by the majority in that case is the rule that a corporation, as distinguished from an individual, is liable in punitive damages for the malicious acts of its agent done within the scope of his employment. The rationale for this result is that corporations are artificial beings who can only act through agents and servants and unless corporations were held vicariously liable there would be no means by which corporations could ever suffer the penalty of punitive damages. This rule is sound and I see no reason why it should not be followed, but this case does not involve a corporation, and we do not have before us the question of whether or not a corporation which might be vicariously liable for malicious acts of its agents and servants can carry liability insurance for its own protection. The Pennsylvania court which considered the matter found that allowing one who is only vicariously liable for punitive damages to shift the burden to his insurer not to be in conflict with the holding that such damages were not recoverable on an automobile liability insurance policy containing language similar to that here. Esmond v. Liscio, 209 P. Super. 200, 224 A. 2d 793.

The fifth circuit pointed up serious problems which are posed by the result reached by the majority here. That court specifically mentioned three, which are:

“* * * (1) It would produce a serious conflict of interest between the insurer and the insured in settlement negotiations and in tidal tactics. There was a conflict of interest in this case when the insurer refused an offer of settlement for $35,-000, again when the insurer said nothing to the insured before trial about punitive damages, and still again when the insurer elected to concede liability for compensatory damages. (2) There would be a conflict between the rule that in assessing punitive damages evidence of the financial standing of the defendant may be considered by the jury and the rule against referring to the defendant’s insurance in the presence of the jury. (3) Fantastic results would be possible having no relation to making the injured party whole.”

The problem that will give the most trouble in Arkansas is that with reference to evidence of the financial standing of the defendant. In cases in which punitive damages are sought (and I predict they will be sought in most automobile cases after this holding), what basis is, to be used' for the showing of the financial condition of the defendant? We have dealt with the problem in other backgrounds in such cases as Dunaway v. Troutt, 232 Ark. 615, 339 S.W. 2d 613, and Life and Casualty Ins. Co. of Tennessee v. Padgett, 241 Ark. 353, 407 S.W. 2d 728. Will there be a waiver of punitive damages when a defendant has automobile liability insurance similar to that found in the Dunaway case? Or is the alternative introduction of evidence that a defendant carries liability insurance and the policy limits thereon? Or will 'proof of financial worth by either party be found to be barred as was the case in the Padgett case?

While it may be of no particular concern to us, I cannot help but wonder whether automobile liability insurance carriers will have to have financial statements from their policyholders as a basis for fixing premium rates or whether the burden of insurance premiums will be spread equally among the policyholders, from the virtually insolvent wage earner to the wealthy capitalist.

The Padgett case itself should keep us from adopting the rule of the majority opinion. There we said:

“Padgett’s attorney argues that regardless of the rule in the case of independent tortfeasors proof of financial worth should be allowed when the defendants are employer and employee. That argument is not sound. The reason for the rule — that one defendant should not be punished on the basis of another defendant’s wealth — applies just as well lo employers and employees as to others not standing in that relation. Hence the rule, as one might expect, is applied in master-servant cases.”

The holding of this court in this case results in the punishment of others, perhaps many others, not only because of another’s actions, but on the basis of another’s wealth. This is inconsistent with what we said in the Padgett case.

I would reverse the judgment of the trial court.

Jones, J., joins in this dissent.


source: Caselaw Access Project

author: Prank Holt, Justice.

license: Public Domain

text:
    Southwestern Bell Telephone Co. & James R. Wheeler v. Russell C. Roberts, Judge, Faulkner Circuit Court
    5-4876
    440 S.W. 2d 208
    Opinion Delivered May 5, 1969

      Donald K. King and George F. Hartje, Jr. for petitioners.

      Guy H. Jones and Phil Stratton for respondent.
   Prank Holt, Justice.

This is an action by Faulkner County, brought in the name of the state, to recover damages from the petitioners. The plaintiff alleged that petitioners negligently installed an underground cable across a county road and as a result of such negligence a county owned motorgrader overturned when it struck the concealed obstruction, causing damage to the vehicle and injuring the county employee driver. The plaintiff sought to recover $2,000.00 for damage to the motorgrader and reimbursement of $2,054.30 for medical and hospital expenses paid on behalf of its injured employee. The petitioners responded to the complaint by filing a motion to quash the summons and dismiss the action for lack of venue. Petitioners alleged that proper venue was in Pulaski and not in Faulkner County since petitioner Southwestern Bell Telephone Company is a foreign corporation legally doing business in Arkansas and petitioner Wheeler is a Pulaski County resident. The trial court, the respondent, denied their motion. A temporary writ of prohibition was granted by this court and now the issue is whether the writ should be made permanent. This action was instituted in the name of the state pursuant to Ark. Stat. Ann. § 17-302 (Repl. 1968). This statute reads that when a “county has any demand against any persons or corporations, suit thereon may be brought, in the name of the State for the use of the county.”

Since this action is in the name of the state, the petitioners contend that venue lies in the Circuit Court of Pulaski County and not Faulkner County by reason of Ark. Stat. Ann. §§ 27-603 and 34-201 (Repl. 1962). The petitioners are correct.

There are certain actions which must be brought in Pulaski County according to the terms of §§ 27-603 and 34-201. In pertinent part, § 27-603 provides:

“The following actions must be brought in the county in which the seat of government is situated:
- First. All civil actions in behalf of the State, or which may be brought in the name of the State, or in which the State has, or claims an interest, except as provided in sec. 484 as amended [§ 34-201].”
Section 34-201 provides, in pertinent part, that:
“* * * all actions which are authorized by the provisions of this Code, or by law, to be brought in the name of the State, * * * shall be brought and prosecuted in the county where the defendant resides.”

The- respondent argues, however, that these quoted .statutes are not applicable and relies upon Ark. Stat. .Ann. § 27-611 which provides that:

“Any action for damages to personal property by wrongful or negligent act may be brought either in the county where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.”

Respondent contends that the effect of this statute is to localize a formerly transitory cause, of action and, since it is the more recent statute, it should control the venue in the case at bar.

This contention, however, has been decided adversely to respondent. We have held that § 27-611 is a general venue statute governing civil suits brought by persons for the recovery of damages to their property and, therefore, it is inapplicable to an action brought on behalf of or in the name of the state. In other words, it applies to persons and not the state. Cook, Commissioner v. Gore, 214 Ark. 777, 218 S.W. 2d 82 (1949). There we said that § 27-611 did not amend or affect § 34-201. In Downey v. Toler, Judge, 214 Ark. 334, 216 S.W. 2d 60 (1948), respondent contended that personal injury actions were localized by Ark. Stat Ann. § 27-610. This section provides that actions to recover for personal injury shall be brought in the county where the injury occurred or in the county where the injured person resided at the time of the injury. We held that since the defendant state policemen were state officers the controlling venue statute’was § 34-201 which was unaffected by § 27-610, the later statute. Thus, venue was limited to Pulaski County which is the official residence of state officers.

Respondent argues that to be required “to pursue their remedies in the distant courts of Pulaski County” would cast an unconscionable burden upon other counties. There is much merit and appeal in respondent’s argument when the practical aspect of venue is considered. However, the rule is well established that the wisdom and expediency of a statute should be addressed to the legislature. In Newton County Republican Central Committee v. Clark, 228 Ark. 965, 311 S.W. 2d 774. (1958) we said:

“We have repeatedly said that the question of the wisdom or expediency of a statute is for the Legislature alone. The mere fact that a statute may seem to he more or less unreasonable or unwise does not justify a court in annulling it, as courts do not sit to supervise legislation. Courts do not make the law; they merely construe, apply, and interpret it.”

See, also, Leonard v. Henry, 187 Ark. 75, 58 S.W. 2d 430 (1933).

In the case at bar, petitioner Wheeler is a resident of Pulaski County. Therefore, § 34-201 requires-that venue in this case is in Pulaski County. Petitioner Southwestern Bell Telephone Company is a foreign corporation authorized to do business in Arkansas. A foreign corporation is not recognized, however, as having a local or county residence. Pelan Cooperage Company v. Duty, 140 Ark. 135, 215 S.W. 715 (1919); Central Coal & Coke Company v. Orwig, 150 Ark. 635, 235 S.W. 390 (1921). Therefore, Ark. Stat. Ann. § 27-603 places the venue at “the seat of government” which is in Pulaski County.

The temporary writ is made permanent.


text:
    Arkansas Louisiana Gas Co. v. Paul D. Pugh, et al
    5-4880
    440 S.W. 2d 242
    Opinion Delivered May 5, 1969

      Williams & Gardner for appellant.

      21obley, B-ullock & Harris for appellees.
   Prank Holt, Justice.

This is an eminent domain proceeding in which the appellant took a pipeline right-of-way easement across adjoining lands belonging to the appellees, Paul D. and Mary Pugh and Beba Ryan. The two separate actions were consolidated for trial and appeal purposes. The pipeline easement resulted in the total taking of 0.88 of an acre of the Pughs’ land and 1.39 acres of Mrs. Ryan’s land. This easement is 30 feet in width and is parallel to a 50-foot right-of-way easement acquired in 1959 by the appellant. Thus, the present width of the pipeline easement is 80 feet, within which there are now two parallel pipelines. The Pughs and Mrs. Ryan each asked $3,500 compensation. A jury awarded the Pughs $938 and Mrs. Ryan $1,084 damages. From the judgments upon those verdicts comes this appeal. The appellant' generally contends for reversal there is no substantial evidence to support the verdicts in excess of the value of the acreage actually acquired within the right-of-way-.

We first discuss appellant’s assertion that there is no substantial .evidence to support that part of the jury’s verdicts which allowed damages for injury to property outside of the right-of-way. The appellant pressed this, point following the verdicts by filing -a Motion For Judgment Notwithstanding The Verdict, asking that a Mr. Pledger ’s evidence of $350 and $450 timber damage outside the right-of-way on the Pughs’ and Ryan’s property respectively be disallowed. It was asked that the judgments, after this disallowance, reflect $688 for the Pughs and $734 for Mrs. Ryan. The motion was denied. Wé think the motion had merit.

The appellees presented two expert value witnesses whose testimony was very similar. One of these was Jim Pledger who is a licensed real estate broker and has been engaged in the real estate business for many years. After the case was submitted, the jury through its foreman asked: “I would like to have the figures from Mr.Pledger’s appraisal of the Rryan land and the Pugh land.” He was then reminded that Pledger’s testimony was that the difference. in the before and after value of the Ryan land was $1,184 and the Pugh property $1,038. Within a,few minutes, the jury returned its verdict for damages in the sum of $1,084 and $938 respectively, or exactly $100 less in each instance. According to Mr. Pledger, he allocated the damages to the Pugh property as being $188 for the acquisition of the 0.88 of an acre; $350 damages to the timber adjacent to the 30-foot strip; and $500 for residual da.mag;e to the balancé of the' property. His appraisal of damages to the Ryan property was based upon $234 for the 1.39 acres acquired; $450 damages to the timber adjacent to tlie 30-foot strip; and $500 residual damage.

According to appellant’s evidence, the greatest difference between the before and after value of the Pugh’s property was $150 and that of the Ryan property was $270.

In Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S.W. 2d 794 (1963) we reiterated that:

“ * * * Where a witness gives his opinion as to damages, such testimony must be considered in connection with related facts upon which the opinion is based. * * * Whether there is substantial evidence to support a verdict is not a question of fact, but one of law. Because a witness testifies as to a conclusion on his part does not necessarily mean that the evidence given by him is substantial, when he has not given a satisfactory explanation of how he arrived at the conclusion.”

When we apply these well settled principles, we are of the view that there is no competent or substantial evidence by any witness for the appellees to support an award to either property owner for damage to timber adjacent to or outside the right-of-way. It appears that the claim for damages to the timber adjacent to the new right-of-way is based principally upon evidence that some of this timber is now affected bv a beetle disease. However, appellees’ witness, Mr. Pledger, who testified about this disease, admitted that it was caused by a condition that existed before the acquisition of this 30-foot strip. We think appellant’s motion to disallow this element of damages should have been granted.

Appellant now urges on appeal that there is no substantial evidence of any element of damages occasioned by the additional or expanded severance of the lands. According to Mr. Pledger, the. resulting-damages were $500 to each landowner. His appraisal appears to he the highest of the competent evidence offered by value witnesses. Another expert witness reduced his figure from $500 to $250 during his testimony. According to the appellees’ evidence, enlarging the right-of-way reduced the property in value by making it less attractive for sale upon the market; its accessibility was affected and logging operations were made more difficult. Although the reasons or related factors for this appraisal of damages are certainly vague and somewhat questionable, we think there is sufficient substantial evidence for the jury’s consideration on this issue. The highest and best use of this property was for timber production.

As previously indicated, we agree with appellant’s alternative contention that the court erred in not granting its Motion For Judgment Notwithstanding The Verdict. The competent evidence in the case at bar does not justify the Ryan judgment in excess of $734 [$1,184 less $450] and the Pugh judgment in excess of $688 [$1,038 less $350]. Accordingly, the judgments are affirmed upon condition of a remittitur of any sums in excess of these amounts. Otherwise, the judgments are reversed and remanded for a new trial.


author: Carretón Harris, Justice.

text:
    Charlie Bryant v. The State of Arkansas
    5-5413
    440 S.W. 2d 534
    Opinion Delivered May 12, 1969

      Boioie & Boyce for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Carretón Harris, Justice.

Appellant, Charlie Bryant, was charged in the Municipal Court of Newport, -Jackson County, Arkansas, with the offense of selling intoxicants to a minor, in violation of Ark. Stat. Ann. § 41-1117 (Repl. 1964). He was also charged with the offense of selling beer on Sunday. The cases were consolidated for trial, and appellant was found guilty of both charges, and fined $100.00 and costs on each one. Both cases were appealed to the Circuit Court of Jackson County. In May, 1968, appellant moved to dismiss the charge of violating § 41-1117, asserting that this court had, in April, 1968, in State v. Jarvis, 244 Ark. 753, 427 S.W. 2d 531, held that this section had been repealed by Act 257 of 1943. The trial court denied the motion, and the (‘ases were tried by a jury on October 4, 1968. Bryant was found not guilty of the charge of selling beer on Sunday, but the jury deadlocked at 10 to 2 on the remaining charge. Both appellant and the state agreed to accept a majority verdict, whereupon the jury found Bryant guilty of the charge of selling intoxicants to a minor, Charles McLaughlin, in violation of § 41-1117, and fixed his fine at the sum of $50.00. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the verdict was contrary to the evidence; that the court erred in denying appellant’s motion for a continuance; and that the court was in error in submitting the case to the jury because § 41-1117 had been repealed.

Inasmuch as we agree that § 41-1117 has been repealed, and that the judgment of conviction must be reversed ou that account, there is no need to discuss the other suggested errors.

Section 41-1117 reads as follows:

“Any person who shall sell or give away, either for himself or another, or be interested in the sale or giving away of any ardent, vinous, malt or fermented liquors, or any compound or preparation (.hereof called tonics, bitters or medicated whiskey, to any miuor, without the written consent or order of the parent or guardian, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not less than fifty [$50.00] nor more than one hundred dollars [$1.00],

In 1941, the General Assembly passed Act 356, Subsection (a) of Section 1 reading, as follows:

“Any person who shall sell, give away, or dispose of intoxicating liquor to a minor, or habitual drunkard or an intoxicated person shall be guilty of a misdemeanor and for the first offense be punishable by a fine of not less than $500.00 nor more than $1,000.00, or confinement for not more than one year in the Arkansas State Penitentiary or both.”

Section 6 of this act repealed all laws and parts of laws in conflict, and accordingly, the penalty provision of § 41.-1117 was repealed.

In 1943, two acts were passed by the Legislature dealing with this question, the first being Act 218, Section i appearing presently as Ark. Stat. Ann. § 48-901 (Repl. 1964). This act specifically repealed Section 1 of Act 356 of 1.941, heretofore quoted, and provided the following penalty:

“Any person who shall sell, give away, or dispose of intoxicating liquor to a minor or habitual drunkard or an intoxicated person shall he- guilty of a misdemeanor and for the first offense he punishable by a fine of not less than One Hundred ($100.00) Dollars nor more than Two Hundred and Fifty ($250.00) Dollars, and for the second and subsequent offenses, he shall be guilty of a misdemean- or and punishable by a fine of not less than Two Hundred and Fifty ($250.00) Dollars nor more than Five Hundred ($500.00) Dollars, or by imprisonment in the county jail for not less than six (6) months nor more than one (1) year, or both so fined and imprisoned in the discretion of the court oí- jury.”

Act 218 vas approved on March 15, 1943.

The second act passed during this legislative session was Act'257, approved-on March 18, 1943. This act, except for one change, retained the penalty in Act 218, differing from that act in that the imprisonment provision reads: - ...

“* * * for not more than one (1) Amar, or both such fine aud imprisonment in the discretion of the jury or court.”

In other words, Act 257 simply removed the penalty of imprisonment for not less than six months. Laws in conflict are repealed.

The above is a resume of the acts relating to the sale of intoxicating liquors to a minor, where knowledge of minority is not involved. . It.would therefore appear that Act 218 (Section 48-901) is the governing statute.of such sales (except that the penalty of imprisonment is controlled by Act 257), and controls the sale in the in-slant case.

State v. Jarvis, supra, pointed out that so much of Section 41-1117 as was in conflict with Act 257 pertaining to the sale of intoxicating liquors to minors had been repealed. The result is that Section 41-1117 presently only covers the sale to minors of any compound called tonics or bitters, and thus, for all practical purposes, has been nullified.

Since the provisions of Section 41-1117 no longer control the sale of intoxicants to a minor, it follows that appellant was erroneously charged, and the judgment of conviction must be reversed.

It is so ordered.

      Sections 1 and 2 of Act 180 of 1961 appear in the Arkansas Statutes as Section 48-903. This statute deals with the penalty for one who knowingly sells or furnishes alcoholic beverages to a minor. The compiler comments that this act supersedes Section 1 of Act 257 of 1943. We think this comment is in error, as Act 180 deals entirely with sales where the seller has knowledge of the minority.
      Act 277 of 1967 amended Act 180, including the changing cf the penalty.


author: George Pose Smith, Justice. Jo un A. Eooleman, Justice.

text:
    Sammy Clark v. State of Arkansas
    5-5399
    440 S.W. 2d 205
    Opinion Delivered May 12, 1969

      Griffin Smith and Robert Shulls for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   George Pose Smith, Justice.

This is the second appeal in this case. Clark was charged with having raped his nine-year-old stepdaughter. At the first trial he was found guilty and sentenced to life imprisonment.

We reversed that judgment for two errors, one of which was the trial court’s refusal to give a requested instruction submitting to the jury the offense of carnal abuse, which under the testimony was a lesser offense included in the charge of rape. The court had submitted only the offense of rape, which was defined for the jury as the carnal knowledge of a female, forcibly and against her will. In reversing the judgment we held that if the child consented to the act the offense would be carnal abuse rather than rape. Clark v. Slate, 244 Ark. 772, 427 S.W. 2d 172 (1968). That holding is now the law of the case and controls subsequent proceedings. Mode v. State, 234 Ark. 46, 350 S.W. 2d 675 (1961), cert. den. 370 U.S. 909 (1962).

At the second trial the testimony was substantially the same as it had been at the first one. We summarized the xoroof in our first. opinion and need not set it forth a second time. • The jury again found the accused guilty of rape and again fixed his punishment at life imprisonment.

For reversal counsel for the appellant insist that at the second trial the court erred in including in its instructions to the jury the substance of a new statute, covering ■tlie offenses of rape and carnal abuse, that was not enacted until after the offense on trial was assertodly committed in 1966. Act 362 of 1967; Ark. Stat. Ann. 41-3401 and-3403 (Supp. 1967). The new statute subdivided the offense of rape (including carnal abuse) into three degrees, which were defined and made the subject of appropriate graduated punishment. The earlier statutes (§§ 41-3401 and-3406) were .expressly repealed, but they may be treated as remaining in force with respect to offenses already committed. See'Ark. Stat. Ann.- § 1-103 (Repl. 1956).

In the language of the new statute, as it might apply to this case, the trial court gave this instruction defining the three degrees of rape and declaring the permissible punishment for each degree:

The defendant in this case is charged with the crime of Rape in the First Degree. A male is guilty of Rape in the First Degree when he engages in sexual intercourse with a female who is less than 11 years of age. Any male upon conviction of First Degree Rape shall be imprisoned in the State Penitentiary from 30 'years to life.
A male is guilty of Rape in the Second Degree when he, being 18 years old or more, engages in sexual intercourse with a female less than-14 years of age. Any male found guilty of Second Degree Rape shall' be imprisoned in the State Penitentiary for not less than three nor more than 21 years.
A male is guilty of Rape in tlie Third Degree when he engages in sexual intercourse with a female or carnally abuses a female who is less than 16 years old. Any male who shall be convicted of Rape in the Third Degree shall be imprisoned in the State Penitentiary for not less than one year nor more than ten years.

We agree with the appellant’s insistence that the foregoing definition of first degree rape was, under the doctrine of the law of the case, more unfavorable to the accused than it should have been. On the first appeal we held that if the nine-year-old prosecutrix consented to the act of intercourse, the offense would be carnal abuse only, which was then punishable by imprisonment for from one to 21 years. But under the trial court’s definition of first degree rape the question of consent was absolutely immaterial. With respect to first degree rape the only issue for the jury was whether the accused had engaged in sexual intercourse with a female less than 11 years of age, with or without her consent. According to the undisputed evidence the prosecutrix was only nine years old on the date of the offense. The action of the jury in fixing the punishment at life imprisonment show's that the error may have been prejudicial.

The error, however, does not automatically entitle the appellant to a new trial. By its verdict the jury found that the accused had in fact had intercourse w'ith his nine-year-old stepdaughter. Under our opinion on the first appeal he was therefore guilty of carnal abuse, whether or not the prosecutrix consented to the act. It will be seen by comparing the new statute with the old one that the definition of third degree rape is precisely the same as the former definition of carnal abuse. The only difference is that the legislature has reduced the punishment to a maximum of ten years imprisonment, vdtich of course it may do even after the commission of the offense. State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600 (1870).

Thus the trial court’s error had no bearing upon the jury’s determination of guilt or innocence. It affected only the extent of the punishment to be imposed. In that situation we have a choice among several corrective measures. We may, depending upon the facts, reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case to the trial court for the assessment of the penalty, or grant a new trial either absolutely or conditionally. Several of the cases were discussed in Bailey v. State, 206 Ark. 121, 173 S.W. 2d 1010 (1943).

Here we think it best to follow the course that we adopted, upon essentially similar facts, in Threat v. State, 110 Ark. 152, 161 S.W. 139 (1913), where we said:

For the errors indicated the judgment must be reversed; but as the jury has found by its verdict that appellant did have sexual intercourse with Gertie Hollingshead, and as it is undisputed that she was at the time under the age of sixteen years, and that the appellant is therefore guilty of the crime of carnal abuse, the State may elect, if it sees proper to do so, to have the defendant brought into the court below to be there sentenced for that crime. Unless such election shall be made in fifteen days, the cause' will be remanded for a new trial.

That disposition of the case enables us to take advantage of the trial judge’s superior knowledge in fixing an appropriate punishment — in this instance between one and ten years imprisonment.

Reversed.

Eooleman, J., concurs.

Jo un A. Eooleman, Justice.

I concur in the result reached in the majority opinion on the basis of my understanding of the disposition being made. As I understand the majority opinion, the court is remanding the case with the state having the option of asking the trial court to sentence Clark upon a charge of carnal abuse, or of having a new trial on the charge of rape with the court giving the instruction on rape given at the first trial and the instruction on carnal abuse as requested. The only prejudice 1 can see in the court’s instruction to the jury on the second trial is that it permitted the jury to find appellant guilty of rape if they believed that the child was over 10 and less than 11 years of age and consented to the act of intercourse. Under the law as it existed prior to the effective date of Act 362 of 1967, sexual intercourse with a female under 10 years of age would have constituted the crime of rape because she is incapable of giving consent, as a matter of law, and it would be presumed that a female under 12 but over 10 years of age was incapable of consenting, unless the proof showed that she understood the nature of the act and was capable of consenting thereto. State v. Pierson, 44 Ark. 265; Coates v. State, 50 Ark. 330, 7 S.W. 304. See also Warner v. State, 54 Ark. 660, 17 S.W. 6; Hammons v. State, 73 Ark. 495, 84 S.W. 718; Rose v. State, 122 Ark. 509, 184 S.W. 60.

I do not consider that because the victim testified that she was .9 years of age, the “law of the ease” limits the crime of which appellant can be found guilty to carnal abuse. Ilis plea of not guilty put in issue the credibility of the state’s evidence, even if otherwise uncontradicted, because the presumption of innocence compels a determination of guilt by a jury. Underhill’s Criminal Evidence, 5th Ed. 1384, § 553. Otherwise, the court could direct a verdict in criminal cases. See Manning v. State. 145 S.W. 938 (Tex. 1912). In a prosecution for rape of a child, the child’s age is a question of fact. Young v. State, 144 Ark. 71, 221 S.W. 478; Hedrick v. State, 170 Ark. 1193, 279 S.W. 785; State v. Sutton, 230 N.C. 244, 52 S.E. 2d 921 (1949) Age may be proved in many different ways such as direct testimony, records and inscriptions, hearsay, opinion and observation, inspection of the person, and Ms appearance to the jury. Terry Dairy Co. v. Halley, 146 Ark. 448, 225 S.W. 887. See also Young v. State, supra; Abbott on Facts, Ch. XIV, p. 164; Gurley v. State, 179 Ark. 1149, 20 S.W. 2d 886, State v. Baugh, 323 S.W. 2d 685 (Mo. 1959). In determining the question of fact as to age and consent, the jury, in a criminal case, is not required to accept or reject any testimony. King v. State, 117 Ark. 82, 173 S.W. 852; Smith v. State, 216 Ark. 1, 223 S.W. 2d 1011; Freeman v. State, 174 Ark. 1035, 298 S.W. 333. See also People v. Johns, 173 Cal. App. 2d 38, 343 P. 2d 92 (1959).


author: George Rose Smith, Justice. Carleton Harris, Chief Justice. J. Fred Jones, Justice.

text:
    Ouachita Marine & Industrial Corporation et al v. Carmine M. Morrison
    5-4879
    440 S.W. 2d 216
    Opinion Delivered May 12, 1969

      Bridges, Young, Matthews & Davis by Bill R. Holland for appellants.

      Jerry Thomason for appellee.
   George Rose Smith, Justice.

This is a workmen’s compensation proceeding involving a work-connected injury that was ultimately diagnosed as a ruptured lumbar disc. When the case was heard by the referee the claimant’s injury had healed to the greatest extent that the attending physicians thought to be possible without surgery. Morrison, the claimant, refused to submit to an operation. The commission made an award of a 60% permanent partial disability, which was affirmed by the circuit court.

On appeal the question is one of first impression in Arkansas: Under our statute does the workmen’s compensation commission have discretionary authority in making an award of benefits to a claimant who refuses to undergo surgery? That question turns upon the correct interpretation of this language in our compensation law: “...where an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least two qualified physicians and where such recommended operation does not reasonably involve risk of life or additional serious physical impairment the Commission may, in fixing the amount of compensation, take into consideration such refusal to submit to the advised operation.” Ark. Stat. Ann. § 81-1311 (Repl. 1960).

The claimant, a laborer, was 54 years old when his case was heard. He was using crutches at the time and testified that he was unable to return to work. Dr. Christian, an orthopedic surgeon, was similarly of the view that, without- surgery, the claimant was totally disabled: “Since [the claimant] refuses surgical treatment and this is what I think he should have I have no alternative except to release him from care. He is, as of this time, totally disabled. I would anticipate with successful disc excision and spine fusion to have reduced his disability to partial permanent disability of an estimated 15 to 20% of the body as a whole.” There was also medical testimony that the claimant’s disability, without surgery, was 20% of his body as a whole.

TCe should stress at the outset that the medical testimony had reference only to functional physical disability and not to the economic disability that results From a workman’s partial or total inability to earn a living. That distinction was explained in Wilson & Co. v. Christian, 244 Ark. 132, 424. S.W. 2d 863 (1968), in this language:

Thus, an injured employee who suffers a permanent partial loss of the use of his body is entitled to payment of compensation for the number of weeks the percentage of such loss bears to 450 weeks. This loss of use may consist of physical functional loss only, and its duration and extent may best be measured through physical examination by competent medical specialists. This permanent partial loss of use to the body may or may not also result in incapacity to earn the same wages received at the time of injury. An accidental injury under this subsection may result in a permanent partial disability consisting only of a partial loss of use of the body as a whole and with no change in earning capacity at all. An injured employee is entitled to the payment of compensation, however, for this loss oj use whether his earning capacity is diminished by the injury or not. Dockery v. Thomas, 229 Ark. 984, 320 S.W. 2d 257. Where the permanent partial disability consists also of an incapacity, because of the injury to earn wages as defined and set out in § 81-1302 (e), supra, such disability includes, blends in with, and is usually greater than the disability occasioned by loss of functional use only.

In the ease at bar the commission’s problem was that of fixing the claimant’s compensable disability in the light of his refusal to submit to corrective surgery. Tn a carefully prepared and excellently reasoned opinion the commission first expressed the view that Morrison’s refusal to undergo an operation upon his back was not unreasonable, within the terms of the statute. We quote pertinent parts of the commission’s opinion, with the preliminary observation that we find its statements of fact to be supported by substantial evidence:

From this brief review of the evidence including the testimony of claimant himself and of the doctors who examined him, it is apparent that without surgery claimant is permanently and close to totally disabled within the meaning of the Arkansas "Workmen’s Compensation Law. Claimant himself testified that he is unable to work and ... Lr. Christian, in effect, agreed with him.
It is strongly insisted, however, by respondents that through successful excision of the disc material and a successful spinal fusion, claimant’s disability would be greatly diminished, and that because of his refusal to submit to such surgery, he should not be given a disability rating greater than 15 per cent to the body.as a whole. This leads us to a more careful consideration of the evidence with respect to such surgery. It is true that all three of the doctors strongly advise such surgery; but it is equally true that they are not so certain or positive as to the outcome of such surgery. For example, in his deposition, Dr. Watson was asked how much, in his opinion, surgery would improve claimant’s condition. He answered, “We are dealing with speculation. I might think that I had done a good job on him, a technically good job, and I might feel that his bona fide demonstrable physical residual disabilities were very minor. But what his attitude might be afterwards, I do not know.” •
Also, Dr. Fletcher, in his deposition, while strongly urging surgery, testified that it would have been his objective with claimant, had he performed the operation, to return him to gainful employment. But, following this same testimony, he further testified in answer to the question whether he would assume that it was probable that such would be the results, “You could probably tell at the time of surgery, as to the degree of involvement and particularly the disc next to it and I think it might be determined by the findings at the time of surgery, probably, ivhether he could or couldn’t return”.
In fact, respondents, on Page 7 of their brief filed with the Commission, frankly state: £ £ That is, no one — not even the examining doctors — could say with any degree of certainty what the claimant’s possibility of returning to work following an operation would be. ”
Our Statute, Ark. Stats. § 81-1311, provides that where an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least two qualified physicians and where such recommended operation does not reasonably involve risk of life or additional serious physical impairment, the Commission may, in fixing the amount of compensation, take into consideration such refusal to submit to the advised operation. Respondents have asked us to construe this provision of our workmen’s compensation law to mean that in the present case claimant is not entitled to an award for any disability in excess of 1 c/o to the body as a whole.
For at least two reasons we are unable to agree with respondents in this contention.
The first of these, reasons is that we do not consider that this provision of our law should be con->trued as being so highly penal as to deprive in all cases an injured workman of the small compensation benefits to which the law otherwise entitles him. We must bear in mind that our statute, which is to be liberally construed in favor of the injured employee, does not itself make it mandatory that a claimant undergo a surgical operation, even upon the advice of qualified physicians, but leaves it permissive for the commission to consider such fact in fixing the amount of compensation. The statute does not require that the commission shall take such refusal into consideration, but uses the permissive term may. The only time when the commission may take such refusal into consideration is when the injured person unreasonably refuses to submit to such surgery. When can it be said that an injured person has unreasonably refused to submit to the operation? It would appear to us that we must weigh the obvious possible involvement of additional serious physical impairment, and the discomfort and inconvenience to claimant, as well as the additional cost to respondents, against the benefits to be gained from such operation. It is not only a question of whether the operation would reasonably involve additional physical impairment, but does it hold out probable promise of improvement? It is admitted by one of the witnesses, Dr. Watson, that there arc instances of disastrous results from any kind of surgery due to many factors beyond the physical control and “it is possible that such could happeu in any given case.” As to the favorable results to be obtained from such operation, it was the opinion of both Dr. Watson and Dr. Fletcher that this would have to await the operation itself and that pending' the operation, it was problematical or speculative in this case as to whether claimant would be benefited.
It was the opinion of the doctors testifying' on the question that claimant’s fears were honest and genuine. It was also their opinion that this honest and genuine fear could influence the results insofar as this claimant is concerned, even though the operation might be a technical success when judged by surgical standards. In view of all these factors and considerations, we are unwilling to say that claimant’s refusal to submit to surgery was unreasonable within the meaning of our law.

Thus it will be seen that the commission first reached at least a tentative conclusion that Morrison’s refusal to submit to an operation was not unreasonable, within the meaning of the statute. Although we might end our review of the case at this point, we are not quite satisfied to do so, because the commission then wont on to base its ultimate conclusion upon the assumption that Morrison’s distaste for surgery was unreasonable. This excerpt from the opinion of the commission makes its position clear:

But even if we should say that claimant’s refusal to undergo surgery was, under all the circumstances, unreasonable, this does not mean that under the statute we should arbitrarily say that his permanent partial disability does not exceed 15% to the body as a whole. To hold this we would have to be arbitrary for the simple reason that the statute itself does not enjoin this duty upon us. It merely provides that we may take such refusal into consideration. Without making it mandatory that we do so, it permits or authorizes us, if in our. judgment the facts warrant or justify, to take this into consideration and to give to it such weight as we feel from a consideration of all the facts and circumstances should be given to it.
Furthermore, to agree with the contention of respondents that claimant should be given a permanent partial disability rating not to exceed 15% to the body as a whole based upon the testimony of respondents’ medical witnesses in the case would be to confuse the terms, “permanent impairment” and “permanent disability,” and would be to misconstrue the role and scope of medical responsibility in the evaluation of permanent disability. Permanent impairment, which is usually a medical condition, is any permanent functional or anatomical loss remaining after the healing period has been reached. While permanent impairment is always an important consideration in the evaluation of permanent disability, yet it is only a contributing factor and is not the sole thing to be considered. Permanent disability means incapacity because of injury, or permanent impairment, to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury. It is based upon an injury or permanent impairment which is usually a medical condition, but it is also affected by non-medical factors such as age, education, occupational skills and training, and the economic environment. The American Medical Association in its “Guides to the Evaluation of Permanent Impairment to the Extremities and Back” points out in the preface the important distinction between permanent impairment on tbe one hand and permanent disability on tbe other band. It is there stated that tbe physicians’ role in tbe evaluation of permanent disability is limited in its scope to tbe evaluation of permanent impairment or an appraisal of tbe nature and extent of tbe patient’s illness or injury. It is further pointed out that tbe evaluation of permanent disability, which is an appraisal of tbe patient’s present and probable future ability to engage in gainful activity, is an administrative and not a medical responsibility and function. See Special Edition of tbe Journal of tbe American Medical Association, Second Printing 1965, on “Guides to tbe Evaluation of Permanent Impairment to tbe Extremities and Back.”
It is not tbe role or function of a doctor to state what a claimant’s permanent disability is, as. that term is defined in our law; but bis role and tbe scope of his duty are to evaluate permanent impairment.
It may well be that a person has a permanent physical impairment of say 15% ; yet because of age, education, training, experience and skills may have a much greater disability when measured in terms of diminished capacity to work and earn wages.
We, therefore, are of tbe opinion that respondents’ contention, that because of claimant’s refusal to undergo surgery he should be given a disability rating of not to exceed 15% to tbe body as a whole, is without merit. It was the opinion of at least two of tbe doctors testifying in this case that without surgery claimant is totally disabled. Claimant himself states that be is unable to perform any kind of gainful employment. Tbe referee, after a consideration of claimant’s age, bis lack of education, bis absence of vocational training or skill, and bis physical impairment, came to tbe conclusion that claimant suffers a permanent partial disability of 60% to the body as a whole. We are of the opinion that this finding is supported by a preponderance of the evidence and that the award of the referee should be, and is hereby, affirmed.

In commenting upon the commission’s reasoning we think it appropriate to make two observations. First, we share with other courts a genuine reluctance to disturb the findings of the commission upon a matter that lies especially within the discretion of that tribunal. Larson has summarized the cases:

The problem of unreasonableness of refusal, and of weighing risk against probable benefit is encountered in its most acute form when the treatment takes the form of surgery. If the risk is insubstantial and the probability of cure high, refusal will result in a termination of benefits. But if there is a real risk involved, and particularly if there is a considerable chance that the operation will result in no improvement or even perhaps in a worsening of the condition, the claimant cannot be forced to run the risk at peril of losing his statutory compensation rights. In the commonest operations presenting this problem — hernia, intervertebral disc, and amputation — -most courts will not at present disturb a finding that refusal to submit to the operation is reasonable, since the question is a complex fact judgment involving a multitude of variables, including claimant’s age and physical condition, his previous surgical experience, the ratio of deaths from the operation, the percentage of cures, and many others. The matter cannot be determined automatically as a matter of medical statistics and expert testimony. The surgeon who sees several operations every day and who testifies that the chance of fatality is only 5 percent naturally has a different point of view than the claimant who has never had a major operation and might quite understandably prefer to enjoy life as best lie can with Iris injury rather than take a one-in-twenty chance of being dead. [Larson, Workmen’s Compensation, § 13.22 (1968).]

Secondly, we are firmly of the view that the commission did not exceed its authority in fixing the claimant’s award at a 60% permanent partial disability. It is true that the witnesses, including the claimant himself, estimated his disability as being at one or the other of two extremes: Either a 100% disability or a 20% disability. It is fair to say that there is no direct evidence fixing his disability, either functional or economic as we have heretofore explained those terms, at any percentage between the .extremes of 100% and 20%. Nevertheless, we uphold the commission’s award of a 60% permanent partial disability.

Our reasoning is simple. The statute declares that when the claimant unreasonably refuses to submit to surgery the Commission may, in fixing the amount of compensation, take into consideration such refusal to submit to the advised operation. Ark. Stat. Ann. § 81-1311. We think the legislature, in saying that the commission “may” take the refusal into consideration chose its words with care. The intangible elements entering into the decision are many as both the commission and Larson supra have pointed out. In view of such considerations we are of the opinion that the commission acted within its delegated authority in choosing a middle ground between the extremes of 100% disability and 20% disability.

If that is not .a correct interpretation of the statute, then we are at a loss to understand what it really means. When the claimant’s refusal to submit to surgery is reasonable, there is no problem. It is only when the refusal is unreasonable that the commission’s discretion comes into play. If the commission is absolutely bound by the opinion of the respondents’ doctors, that the operation promises a fair degree of success and involves only a slight risk, then the discretion lies with the doctors and not with the commission. That is not what the statute says. We do not think that is what it means. No doubt cases might arise involving an abuse of the commission’s wide discretion in the matter, but this is not such a ease.

Affirmed.

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

Carleton Harris, Chief Justice.

I disagree with the result reached by the majority. Doctors Robert Watson and Thomas Fletcher both estimated Morrison’s permanent partial disability at 20%. Dr. Waison, in his final report, stated that, if the estimate of disability were based upon Morrison’s own statement, and upon actions strictly under Morrison’s own emotional control, claimant would, presently, be considered totally disabled. He further stated, however, that an estimate of disability based on findings that can be substantiated by neurological examination would be more in the field of 20% permanent partial disability. This opinion by these doctors was a rating of disability without surgery. With surgery, all doctors, including Dr. Christian, were of the opinion that the permanent partial disability would be even less. The only evidence I find to the effect that there was total disability without prospects of any improvement, was that of the claimant himself, a man with no medical knowledge, and apparently prejudiced against doctors. Dr. Christian did state that, as of the time of the examination, Morrison was totally disabled; however, he added:

“* # * I would anticipate with successful disc excision and spine fusion to have reduced his disability to partial permanent disability of an estimated 15 to 20% of the body as a whole.”

Of course, no doctor can guarantee results from an operation, but it is clear that all were of the opinion that surgery would be beneficial. Doctors Watson and Fletcher both considered claimant’s refusal to have surgery to be unreasonable, and while Doctor Christian did not use those particular words, it is apparent from the record that he too holds the same view. Morrison was adamant on the subject of an operation, and said that he wouldn’t submit to surgery if “a million” doctors recommended it. Claimant testified that he was told by the doctors that there was a possibility that he might lose the use of his legs, if he had the operation. However, no doctor testified to that effect. It is apparent that Morrison does not have much use for the medical profession, and his refusal to submit to the operation is somewhat predicated on that fact. When asked why he felt that the doctors recommended surgery, he replied:

“Well, they are getting paid for it. They just operate on your back and then say, Mr. Morrison, we have done all we could for you. They might do their best but they already said some do and some don’t. That was plain enough for me.”

Dr. Watson commented on the proposed operation, as follows:

“It is looked upon as being a simple task that one of us might do once or twice a day, or maybe do several of them a week. Time has proved it is a perfectly safe procedure. The muscles at the hack are split in a longitudinal fashion, so that they are retracted away from the backbone. There is a little ligament that runs from one lamina, which is the back of a vertebra up to the next lamina, covers an area about the size of the ball of a man’s thumb. One can remove this little piece of ligament and give an opening about the size of the ball of a man’s thumb, and through this wo work' to retract the nerve root and to take ont these pieces of fragmented disc. Sometimes the evidence of surgery is so scant that it cannot be recognized by x-ray. And as far as time of operation, it can be from thirty minutes to an hour and a half.
“As far as being bedridden, we let them out of bed to go to the bathroom the next day if they want to. We customarily send them home from the hospital from five to seven days. Rarely more than seven days after surgery. Their intervals for healing depend considerably on the type of work they do and their own personalities. Some people anxiously want to return to work too soon. Maybe in a matter of four weeks, six weeks. Some are very hesitant about ever wanting to return to work.
“I have so much faith in this I’ve done this surgery on personal friends, on hunting companions, on business acquaintances, and on other doctors that we are associated with.”

The majority say, “If the commission is absolutely bound by the opinion of the respondents’ doctors that the operation promises a fair degree of success, and involves only a slight risk, then the discretion lies with the doctors and not with the commission. That is not what the statute says.” I agree that the discretion lies with the commission, but where all the medical proof is in accord, he., all agree that the operation involves but little, if any, risk to the patient, it seems to me that the ruling was arbitrary. Had there been medical evidence also offered that the operation was dangerous, and would result in only slight benefits to the patient’s condition, then a fact question would have been presented. But when the opinions of outstanding’ specialists are contradicted only-by the statement of the claimant, I can see no justification for awarding 60% permanent partial disability to the body as a whole.

It- is my view that Morrison’s refusal to submit to the operation was completely unreasonable, and entirely unsupported by substantial evidence that such, an operation might aggravate or worsen his condition.

I would reverse.

J. Fred Jones, Justice.

I do not agree with the majority opinion in this case. All the doctors who have examined the appellee agree that he has a rupturtd disc and is in need of surgical removal of the disc material for relief of pain, and is in need of spinal fusion for stability of the spinal column. None of the doctors say that appellee is able to do any kind of work in his present condition and the appellee says that he is not. The ■final medical estimates of functional disability leave little incentive for the appellee to accept the proposed surgery.

Dr. Christian reported, on May 5, 1966, as follows:

“This patient has a herniated disc and I think quite likely a ruptured disc with nerve root compression on the right side. He has x-ray evidence of almost complete collapse of the lumbosacral disc of long duration. His current disc trouble may be at that same level but I would think more likely from the level above. In any event, he has had back and severe leg pain for a month and has not responded to conservative treatment.
I have recommended to him that he be hospitalized and that a lumbar myelogram be carried out to confirm the diagnosis of the disc protrusion and to determine tlxe level at which it has occurred and that this be followed by surgical excision of the disc. A man who does the type of work that he does, I should think, should have a fusion of the involved joint at the time of the disc excision and if the disc protrusion is at L-4, 5 the fusion should be extended to include the lumbosacral joint.”

After the disc lesion was confirmed on myelogram and the appellee had refused the recommended and tendered surgery, Dr. Christian, on May 18, 1966, reported as follows:

“Since he refuses surgical treatment and this is what I think he should have I have no alternative except to release him from care. He is, as of this time, totally disabled. I would anticipate with successful disc excision and spine fusion to have reduced his disability to partial permanent disability of an estimated 15 to 20% of the body as a whole.”

Dr. Robert Watson reported on July 8, 1966, as follows:

“I have been furnished with a copy of Dr. Christian’s letter of May 18, 1966, describing the myelograpliic studies as showing a likely ruptured intervertebral disc at the lumbosacral interspace on the right, and, to me, this man’s present physical picture would certainly indicate such.
This man, seemingly, has been seriously disabled for an interval now of four months’ time, and I do not see much hope for any spontaneous recovery. In my opinion, this man should be operated upon.
... I agree with Dr. Christian that should this man cooperate and have surgery, likely then his disability could be reduced to an estimated 15 to 20 per cent affecting the body as a whole.”

On January 24, 1967, Dr. Watson reported as follows :

“My last report to you regarding this man was dated July 8, 1966. In that report, I stated to you that, based on my neurological examination and the report of Dr. Christian’s myelographic studies, this man did have a ruptured lumbar disc and should be operated upon. Also, in my report to you at that time, 1 stated this man was very firmly opposed to the thought of surgery.
I have since seen and examined this man at your request in our office on January 23, 3967. Now this man enters the office on crutches. He tells me his condition is not appreciably changed over that when I saw and examined him last summer. Again, when I discussed surgery with him, he firmly refused it.
If one based an estimate of disability strictly upon this patient’s own statement and upon the actions strictly under his own emotional control, one would then say this man was, at this time, totally disabled. However, if one bases evidences of disability on bona fide findings that can be substantiated by neurological examination, the estimate of disability is much less, and more in the field of 15 per cent affecting the body as a whole. Actually, I feel that much of this man’s so-called ‘disability’ is under his own emotional control.
This man refuses surgery, and with his emotional makeup, one can speculate as to what sort of subjective benefit he might obtain following surgery. I feel it would be perfectly fair to the man to estimate his present permanent residual disability as being 15 per cent affecting the body as a whole, and set this present time as the interval for maximum healing. By doing so, we will give him almost a full year’s interval for healing.”

There is no question, according to the record in this case, that the appellee has a herniated or a ruptured disc, and there is no question that he needs surgery. The medical reports, however, are somewhat confusing. Dr. Watson first agreed with Dr. Christian, that appellee’s total disability could be reduced to 15 or 20% by surgery, and Dr. Watson did not see much hope for any spontaneous recovery. After appellee finally and unequivocally refused to have surgery, Dr. Watson found that much of the “so-called disability” was under the appellee’s emotional control and he estimated appellee’s true permanent partial disability to be 15% affecting the body as a whole.

The appellee had a perfect right to refuse the proposed surgery, but with the risk of statutory penalty to be assessed by the Commission if he unreasonably did so. Under Árk. Stat. Ann. § 81-1311 (Eepl. 1960) pertaining to medical and hospital services and supplies, is found the following:

“... [W]here an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least two [2] qualified physicians and where such recommended operation does not reasonably involve risk of life or additional serious physical impairment the Commission may, in fixing the amount of compensation, take into consideration such refusal to submit to the advised operation.”

In my opinion there is substantial evidence that the appellee was totally disabled for employment when he was last seen by Dr'. Watson. He was on crutches, said he ivas about the same as when last seen and this would confirm Dr. Watson’s previous opinion that he saw little hope for any spontaneous recovery. No witness has indicated that the appellee is not totally disabled from performing gainful employment in his present condition without surgery. It has almost become a matter of common knowledge that a truly ruptured disc does not heal spontaneously and that a person who has suffered one is more likely to wind np in a wheel chair without surgery than he is if he has surgery. In such a situation, when does such disability become permanent ’!

Arkansas Statutes Annotated § 81-1313 (liepl, 1960) provides as follows:

“The money allowance payable to an injured employee for disability shall be as follows:
(a) Total Disability: In case of toted disabiliiy there shall be paid to the injured employee during the continuance of such total disability sixty-five per centum [65%] of his average weekly wages. Loss of both hands, or both arms, or both legs, or both eyes, or of any two [2] thereof shall, in the absence of clear and convincing proof to the contrary, constitute permanent total disability. In all other eases, permanent total disability shall be determined in accordance ivith the facts.
(b) Temporary partial disability: In case of temporary partial disability resulting in the decrease of the injured employee’s average weekly wage, there shall be paid to the employee sixty-five peí- centum [65%] of the difference between the employee’s average tveekly wage prior to the accident and his ivage earning capacity after the injury.
(c) Scheduled permanent injuries: An employee who sustains a permanent injury scheduled in this subsection shall receive, in addition to compensation for the healing period, sixty-five per centum [65% ] of his average weekly wage for that period of time set out in the following schedule:
(1) Arm amputated at the elbow, or between the elbow and shoulder, two hundred [200] weeks;
(22) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member.
(d) Other cases: A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole which shall have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury. * * *” (Emphasis supplied.)

1 only differ with the Commission and the majority opinion as to the extent and permanency of appellee’s disability in this case. There is substantial evidence that appellee is totally disabled for gainful employment at the present time, but there is no evidence that this disability will be permanent. While appellee’s refusal to have surgery may have been unreasonable at the time he first refused, it would appear to be more reasonable now if he does only have 15% permanent partial disability in his present condition without surgery and can, at best, anticipate a 15 to 20% permanent partial disability following surgery. I am convinced that much of the difficulty arising from the use of medical reports in evidence in compensation cases lies in a difference in terminology employed.

The statute distinguishes between injury and disability. Injury may result only in compensable permanent loss of use of the body or any scheduled part thereof, or injury may result in permanent total disability or temporary partial disability in addition to, and including, permanent loss of use of the body or a scheduled member. Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685; Wilson & Company, Inc. v. Christman, 244 Ark. 132, 424 S.W. 2d 863; Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S.W. 2d 41, (opinion delivered April 7, 1969).

I have concluded that some confusion in the cases has been brought about by the medical examiner, the Workmen’s Compensation Commission and by this court deviating from the statutory terminology in distinguishing between permanent disability and permanent injury. In my opinion, so-called “functional disability” is not disability at all within the meaning of the statute, but is “partial loss or loss of use” within the scheduled injury section of the statute.

The statute itself is somewhat ambiguous and confusing. The statute is clear on total disability, permanent total disability and temporary partial disability. It is also clear on twenty separately numbered scheduled permanent injuries. The statute then provides in separate numbered»paragraphs (21) and (22) for “total loss of use” and for “partial loss or partial loss of use” of the members of the body designated under the twenty-scheduled injuries. In recognition of injuries to parts of the body not scheduled, the statute relates those injuries to the body as a whole under a separate subsection designated “other cases” and provides that “a permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole which shall have a value of 450 weeks.”

It is noted that disability is not what is scheduled under subsection (c). Permanent injuries, including partial loss or loss of use, are what is scheduled under subsection (c). So the phrase, “permanent partial disability,” as it relates to the body as a whole under the scheduled injury section of the statute, could only mean permanent injury to the body as a whole resulting, not in total or partial loss by amputation as in the case of an arm or leg, but resulting in a permanent partial loss of use of the body as a whole, the same as loss of use of an unamputated leg or arm. Tile phrase “permanent partial disability” was not inadvertently used in this section. It simply means that permanent injury resulting in a loss of use as it relates to the body as a whole, as well as permanent partial disability as it relates to the body as a whole, are both compensable and are both covered by this same section. That was the effect of our holdings in the Edens case and the Christ-man case, supra.

Now returning to the case at bar, the highest estimate of permanent disability is 20% to the body as a whole on a functional, or loss of use basis, and there is substantial evidence that would sustain an award in that amount. There is no evidence at all as to appellee’s future earning capacity, and therefore, no evidence as to the extent of his actual permanent disability. If the appellee’s condition becomes worse, he should have the benefit of surgery if and when he should desire surgery at any time within the statutory period of limitations. If the appellee should decide to have surgery and his disability is greatly reduced thereby, both the appellee and the appellant should be afforded the benefit of such procedure.

Appellee’s disability may or may not become partial, and it may or may not become permanent. There is substantial evidence that would support an award of 20% and certainly an award of 15% based on the loss of use of the body as a whole, but I find no evidence that would sustain an award of permanent disability at all or of temporary disability less than total.

If the Commission was convinced that the appellee was unreasonable in refusing the operation, it is my opinion that it had a perfect right, in the exercise of its discretion, to award the appellee a 60% permanent disability if, and only if, there has been any substantial evidence that the appellee had a permanent disability greater than 60%. In my opinion the Commission would have the right, in the exercise of its discretion, to order a reduction in weekly benefits for an unreasonable refusal to have surgery. If the Commission did award the 60% in this case on the basis of appellee’s refusal of surgery, it is my opinion that the appellee was rewarded for refusing the surgery, rather than being penalized as the statute intended, for I find no evidence in the record that appellee’s disability, other than the 20% in the loss of use of body function, is permanent.

I would reverse and remand to the Commission for an award of weekly compensation for temporary total disabilitj^ subject to change if it becomes partial, and subject also to the Commission’s right to the exercise of its proper discretion as to the unreasonableness of appellee’s refusal to have corrective surgery.

       (Sometimes referred to as “functional loss,” “functional disability,” “clinical loss” or “clinical disability.”)