author: Sam Robinson, Associate Justice. Paul Ward,

text:
    Rainfair, Inc. v. Cobb.
    5-1529
    312 S. W. 2d 906
    Opinion delivered May 12, 1958.

      Shaver & Shaver, for appellant.

      McMath, Leatherman é Woods, for appellee.
   Sam Robinson, Associate Justice.

This is an appeal from a judgment of the circuit court affirming a decision of the Board of Review holding that certain former employees of appellant, Rainfair, Inc., are not disqualified under Ark. Stat. § 81-1106(a), as amended by Act 162 of 1953. This section provides for ten weeks’ disqualification if employee voluntarily and without good cause connected with the work left his last work.

Appellant, Rainfair, employs about 107 workers. On the 2nd day of May, 1955, about 25 of the employees did not show up for work. On that same day Mr. James E. Youngdahl, director of organization for the Amalgamated Clothing Workers of America, notified Rainfair by letter that the employees had gone on strike because of unfair labor practices. The letter from Mr. Youngdahl to Rainfair further states: “We are ready and willing to meet with representatives of your company at any time or place to make arrangements to have our majority status at Wynne, Arkansas, checked against your payroll by some neutral person as previously requested by myself of your officials at Wynne several weeks ago.”

The issue between the workers and Rainfair was whether the Amalgamated Clothing Workers Union would be recognized by Rainfair as a bargaining agent for the employees, who were not at the time members of a union. On the same day, May 2nd, Rainfair sent the employees who had not come to work that day the following letter: “We notice that you did not come to work today. We do not know what the cause is for your being absent. You realize that it is necessary for us to have a full complement of employees in order to get our necessary production. Therefore, if you do not return to work by Thursday, May 5, 1955, we will assume that you have resigned and no longer wish to work for us. In that case it will be necessary for us to replace you. We hope that you return to work.”

On May 18th the employees abandoned the effort to have the Clothing Workers Union recognized as the bargaining agent and offered to return to work unconditionally. On May 19th they went to Rainfair’s place of business to go to work, but were told that no work was available. On June 20, 1955, they again informed Rain-fair that they were on a strike. This second notification of being on strike was completely meaningless, because prior to that time they had been discharged.

The appellant, Rainfair, contends that the employees voluntarily quit their jobs and are therefore disqualified to receive unemployment compensation for a period of ten weeks as provided by Ark. Stat. § 81-1106, as amended by Act 162 of 1953.

The appellees contend that they did not voluntarily quit their work on May 2nd, but went out on strike; that there was a labor dispute. They make no contention that they were entitled to compensation during the time they were on strike, as provided by Ark. Stat. § 81-1106 (d). But they do contend that when they called off the strike and offered to return to work on May 18th and were refused work by Rainfair, they immediately became eligible for unemployment compensation.

This case is controlled by Little Rock Furn. Mfg. Co. v. Commr. of Labor, 227 Ark. 288, 298 S. W. 2d 56. There the court said: “When the claimants offered to return to work on November 30th, they removed themselves from the disqualification of Sub-division (d) of § 81-1106 . . .”

Appellant attempts to distinguish the case at bar from the Little Rock Furniture Manufacturing Company case on the theory that in the cited case the unemployment grew out of a labor dispute and that in the case at bar it is simply a situation where some employees voluntarily quit their jobs without a just cause. It is clear from the evidence that the employees did not quit their jobs in the usual sense of the word. They simply went out on strike, hoping thereby to prevail on the employer to recognize a union of their choice as their bargaining agent. When it was apparent that their strike would not succeed, they attempted to return to work, but the employer in the meantime had arranged to do without their services and the jobs they left were no longer available to them. This is the same situation as existed in the Little Rock Furniture Manufacturing Company case, and it ivas held that the employees were not disqualified under Ark. Stat. § 81-1106(a).

Affirmed.

Holt and Ward, JJ., dissent.

Paul Ward,

Associate Justice, dissenting. I submit that the majority is wrong in holding this case is controlled by the Little Rock Furniture Mfg. Co. case [227 Ark. 288, 298 S. W. 2d 56]. Such a conclusion evades the real issue presented in the case under consideration; i.e. did appellees leave their employment voluntarily? A summary of the material facts and issues in the two cases will show the distinction.

In the Furniture case it was conceded that there was a labor dispute preceding the strike. The opinion states: ‘ The strike was called by the Labor Union in an effort to obtain certain desired economic benefits.” The gist of the holding is this: £ £ the claimants were disqualified under sub-division (d) of Ark. Stats. § 81-1106.” That sub-division says £ £ an individual shall be disqualified for benefits . . . for any week with respect to which it is found his unemployment is due to a stoppage of work which exists because of a labor dispute at the factory ...” (emphasis supplied). The opinion then proceeds to hold that since the employees were disqualified under (d) they could not also be disqualified under (a) because ££each sub-division [in § 81-1106] is mutually exclusive.” The opinion did not discuss the facts or circumstances under which an employee might be disqualified for 10 weeks under § 81-1106(a). This sub-section says an employee must wait 10 weeks [after applying for work] before he can draw compensation “if he voluntarily and luithout good cause connected with the ivorh”, leaves his employment.

The case under consideration is entirely different. Rainfair’s contentions at all times have been: 1. Appellees were disqualified under subsection (a) because, 2. they left their work voluntarily and without good cause connected with their work.

1. If the majority opinion is right in holding, based on the Furniture case, that appellees cannot be disqualified for 10 weeks under (a) simply because they actually went out on strike, without attempting to show [as it does not] there was ££a stoppage of work which existed because of a labor dispute at the factory”, then the section just quoted has no meaning or significance. The result of the majority opinion would be to hold that any strike, whether it ££exists because of a labor dispute” or not, can be successfully relied on to avoid the penalty provided in sub-section (a). That just does not appear to be a reasonable interpretation of the statutes.

2. If I thought the facts in the case under consideration showed a bona fide “labor dispute” I would concur in the majority opinion instead of dissenting, but I do not think so. This vital point was apparently deemed unimportant to the majority because it was not developed. I shall only summarily give my conclusions of what I think the evidence shows.

None of the employees had any complaint about wages, working hours, or working conditions as a basis for striking. Some of them didn’t even know why they struck, and didn’t know they were going to strike until they were told to do so. The Company’s manager didn’t know they were going to strike until after it was in effect. The nearest thing approaching a reason for the Union Officers to call the strike was their contention that the Company would not recognize the Union as a bargaining agent. The matter was mentioned about a month before the strike. But, as it appeared at the time and as it was proven later, the Union did not have a majority of the employees, and had no right to be recognized. The management told the Union Officers he would give the recognition when he was furnished with evidence of the required number. This certainly showed the Company’s willingness to co-operate. Moreover the Union Officers well knew the law provided a way by which they could determine the extent of their membership— it was also pointed out to them by the manager — -but they chose not to pursue that course.

Looking at the situation in its entirety, as it is disclosed by the record, in a common sense and impartial manner, I cannot believe the strike was called in good faith “because of a labor dispute at the factory.” I have used the term “good faith” advisedly because I believe it is the only basis on which Labor and Management can successfully and peaceably operate for the mutual benefit of both.


source: Caselaw Access Project

author: Carleton Harbis, Chief Justice.

license: Public Domain

text:
    Williams, Standridge & Deaton v. State.
    4906
    313 S. W. 2d 242
    Opinion delivered May 19, 1958.

      Gordon E. Sullivan, for appellant.

      Bruce Bennett, Attorney General, by Thorp Thomas, Ass’t Attorney General, for appellee.
   Carleton Harbis, Chief Justice.

On May 24, 1956, petitioners, Tom Williams, Joe Standridge, and James Deaton, charged jointly with Grand Larceny, respectively entered a plea of guilty. Williams and Standridge were sentenced to five years’ imprisonment in the state penitentiary, and Deaton received a three year sentence. The clerk of the court made out commitments in conformity with the court’s docket entry, and the petitioners were returned to the penitentiary where they were already serving other sentences. Approximately two weeks after the commitments were issued and petitioners had been delivered to the penitentiary, the transfer agent for the Arkansas State Penitentiary called the clerk and advised him that under the commitments issued, the sentences of petitioners would run concurrently rather than consecutively, since said commitments were silent as to whether they should run concurrently with the sentences already being served, or consecutively thereto. The court, upon being so advised by the clerk, instructed the latter to issue new commitments, adding the words “said sentence to begin at the expiration of the sentence defendant is now serving in the state penitentiary.” A similar notation was added to the docket sheet by the court, and the new commitments bore the original date of May 24th. On February 4, 1958, Deaton, Williams, and Standridge, under authority of Act 419 of the Acts of the General Assembly of 1957, filed a petition alleging that since they had already been in the penitentiary for approximately two weeks before the new commitments were issued, the court had lost jurisdiction of the parties; that they received no notice of the issuance of the new commitments and were not present in court at the time same were issued; that the effect of the court’s action was to give them additional sentences “without them being before the court or notice to the defendant, and without jurisdiction on the part of the Pulaski Circuit Court.” They prayed that the second commitments issued be held null and void, and that the court declare the original commitments as the proper ones under which they were to serve their sentences. The court denied the petition, and from such denial, comes this appeal.

For reversal, appellant relies upon three points, but we need go no further than the first point to determine the issue. Appellant’s first point is “When a person is legally committed to the State Penitentiary, the court loses jurisdiction of said cause, barring any clerical error.”

First, it might be well to discuss the law applicable to the matter of concurrent and consecutive sentences. One of our earlier cases dealing with this subject is Ex parte Brady, 70 Ark. 376, 68 S. W. 34. There, this Court said:

“It is true that, where one is convicted of two or more offenses the punishment for which is imprisonment, the judgment should direct that the imprisonment in one case commence after the termination of it in the other, and if this is not done the terms of imprisonment may run concurrently, so that the prisoner will be entitled to his discharge on the expiration of the longest term adjudged against him. ’ ’

This conforms to what presently constitutes Sec. 43-2311, Ark. Stats. (1947), which reads as follows:

“If the defendant is convicted of two or more offenses, the punishment of each of which is confinement, the judgment shall be so rendered that the punishment in one case shall commence after the termination of it in the others.”

In 1923, the legislature passed an act (Act 152) which appears in our statutes as Sec. 43-2312, and which reads as follows:

“Hereafter when any person shall be convicted of more than one felony, the punishment for one of which begins before the expiration of the sentence imposed on the other, the court trying the cause shall have the authority to direct that said sentences shall run concurrently, if it shall be deemed best for society and the person convicted. ’ ’

However, in the ease of Hayes v. State, 169 Ark. 883, 277 S. W. 36, this Court held that the 1923 Act (Sec. 43-2312) did not repeal Sec. 43-2311 (then Sec. 3239 of Crawford & Moses’ Digest). Chief Justice McCulloch, speaking for the Court, said:

“The statute last quoted does not repeal the former, and it is seen from a perusal of it that there is express authority for making the term of sentence in one case begin at the expiration of another term of sentence, * * * . ”

Hence, it follows that unless the judgment specifically directs that one sentence shall commence upon the expiration of the other, the sentences will run concurrently. The State, through the Attorney General, does not argue that the law is otherwise, hut contends that the action of the trial court in the present instance, was merely correcting a clerical error in the judgment. In Fletcher v. State, 198 Ark. 376, 128 S. W. 2d 997, this Court, citing several prior cases, held:

“If the trial court loses jurisdiction over the case when the statutory requirements for an appeal are complied with, and a transcript of the record is filed with the clerk of this court, it would seem that for a similar reason the trial court would lose jurisdiction of the case when it had issued its commitment of the defendant to the State Penitentiary, and the defendant had been transported there, and was serving his sentence.

So, in this State, there are two well known exceptions to the rule that the court has general power over its judgments during the term in which they are first rendered. One is that when an appeal has been perfected in this court and the other is that the defendant has served a portion of his sentence. In either case the trial court is without jurisdiction to modify its judgment, ‘except to correct its judgment to make it speak the truth in aid of the jurisdiction of the appellate court.’ ”

This is in line with the general weight of authority, as stated in 168 A. L. R. 707.

“The great weight of authority supports the rule that when a valid sentence has been put into execution, the trial court cannot modify, amend or revise it in any way either during or after the term or session of the court at which the sentence was pronounced; any attempt to do so is of no effect and the original sentence remains in force.”

As denoted by the last sentence quoted in the Fletcher opinion, it is true that we have several times held that a court has the power to correct clerical errors in its judgments, orders, or decrees. McPherson v. State, 187 Ark. 872, 63 S. W. 2d 282; Hydrick v. State, 103 Ark. 4, 145 S. W. 542; Goddard v. State, 78 Ark. 226, 955 S. W. 476. As stated by the Court in the McPherson case, supra:

“It is uniformly held that a court of record may correct mistakes in its record which did not arise from the judicial acts of the court but from the mistakes of its recording officers.”

Here, there was no clerical error, though it appears the court, in sentencing petitioners, stated that their sentences would run consecutively to the ones petitioners were already serving. L. W. Rosteck, deputy clerk in the First Division Circuit Court, testified as follows:

“Q. You made out the commitment for Judge Kirby?

A. I made out the commitment.

Q. You failed to mention the word ‘consecutive’ that he used when you made out the commitment?

A. I didn’t mention it in that I called it to the Judge’s attention- — the docket entry didn’t indicate that the sentences were to run consecutively and he at that time said it didn’t make any difference- — -that if he didn’t say, it would automatically run consecutively.

Q. He did during the sentencing say that they would run consecutively?

A. That is true.

Q. In making up the commitment, you failed to incorporate the word ‘consecutive’ in the commitment?

A. I make the commitment from the Judge’s docket — I don’t make up the commitment on the verbal sentence — I make it up off of the entries on the Judge’s docket, and when they did not reflect the word ‘ consecutive,’ I called it to his attention and he said to let it go ahead like I had it written and they would automatically run consecutive — that was his impression.”

Judge Kirby himself confirmed this testimony.

The passage of the 1923 act perhaps made confusing a correct interpretation of the law, and the court’s error is understandable. Still, it was error, and necessitates a reversal.

The judgment of the court denying the petition is reversed, and the cause is remanded with directions to enter an order voiding the second commitments, and reinstating the original commitments issued on May 24, 1956.

Robinson, J., not participating.

       The record does not reflect when petitioners were first committed to the state penitentiary, the length of sentence being served, or why they were away from the penitentiary at the time of committing the instant offenses. Under the weight of authority, the general rule, hereinafter discussed, as to consecutive and concurrent sentences, is the same, whether one be sentenced on two charges at the same time, or at different times. See People v. Sukovitzen, 138 Cal. App. 2d 159, 291 P. 2d 107; People v. Ragen, 396 Ill. 565, 72 N. E. 2d 175; Williford v. Stewart, 355 Mo. 715, 198 S. W. 2d 12; Ex parte Hodge, 158 Tex. Cr. R. 549, 258 S. W. 2d 323.

       According to an opinion rendered by the office of the Attorney General to the superintendent of the penitentiary on March 18, 1953, in a similar case.


author: J. Seaborn Holt, Associate Justice.

text:
    Bennett v. Staten.
    1571
    313 S. W. 2d 232
    Opinion delivered May 19, 1958.

      W. B. Howard, for appellant.

      Gerald E. Pearson, for appellee.
   J. Seaborn Holt, Associate Justice.

This action was a damage suit filed by appellee, Loren Staten, for personal injuries sustained when he was struck by an automobile driven by appellant, Captóla Bennett, in the city of Jonesboro, July 14, 1956. At the time of the injury Staten was pushing a lawn mower on the east side of South Bridge Street in Jonesboro, in a northerly direction, when he was struck by an automobile coming from the rear, operated by appellant, Bennett. Appellee alleged various acts of negligence on the part of appellant .and appellant answered with a general denial, and specifically pleaded various acts of contributory negligence on the part of appellee.

A trial to a jury resulted in a verdict in favor of appellee, and a judgment in amount of $2,750 was entered on the verdict. On appeal here appellant does not question the sufficiency of the evidence to support the verdict. For reversal she relies on the following points: “1. The court erred in failing and refusing to submit to the jury the issue of whether or not the plaintiff was guilty of contributory negligence in pushing his lawn mower in the street with his back to traffic instead of traveling on the sidewalk; as set forth in Defendant’s requested Instruction No. 1. 2. The court erred in failing and refusing to submit to the jury the issue of whether or not plaintiff suddenly and negligently stepped in front of defendant’s vehicle thereby causing the injuries; as set forth in defendant’s requested Instruction No. 2. 3. The court erred in failing to submit to the jury the issue of whether plaintiff kept a proper lookout and whether he was guilty of negligence in this respect; as set forth in defendant’s requested Instruction No. 3. 4. The court erred in failing to tell the jury that a mere accident occurring without negligence gives rise to no liability as set forth in defendant’s requested Instruction No. 4.”

Appellant’s position is stated in this language: “The evidence was undisputed that the appellee, while pushing a lawn mower, walked in the street instead of on the sidewalk and that he walked on the right side of the street with his back to traffic traveling in the same direction. It was appellant’s theory, as set forth in the answer, that these acts constituted negligence on the part of appellee 'which caused or contributed to cause the injuries complained of. Appellant had a right to have the jury’s attention directed to answering whether these acts constituted negligence which caused or contributed to cause appellee’s injuries.” Appellant frankly concedes that the court properly instructed the jury on appellee’s allegations in his complaint that appellant was negligent in driving at an excessive and dangerous rate of speed; failed to keep a lookout for pedestrians, failed to keep her car under control and failed to give reasonable warning of her approach and to use every reasonable precaution to avoid injuring appellee. While she concedes that these instructions were correct, she insists that since she had specifically defended on the ground that appellee was negligent in walking on the wrong side of the street, and in the street instead of on the public sidewalk, darting in front of appellant’s vehicle without warning, and failure to keep a proper lookout and pushing his lawn mower in the street instead of on the sidewalk, that she was entitled to have her theory of the case presented to the jury in her Instructions 1 and 2, which the court refused:

These instructions provided: “1. In your consideration of whether the plaintiff Loren Staten was negligent, you may determine whether or not an ordinarily prudent person would have, under the same or similar circumstances; (1) Walked in the Street instead of on the sidewalk. (2) Walked on the right side of the street instead of the left side. (3) Pushed a lawn mower in the street instead of on the sidewalk. If you find that an ordinarily prudent person would not have done these things, then the plaintiff Staten was guilty of negligence, and if you further find that such negligence caused or contributed to cause the injuries complained of you will charge the plaintiff with such negligence. 2. The defendant contends that the plaintiff Staten suddenly and without warning changed his course and stepped in front of her vehicle. If you find that this contention is true and that such action was negligence on the part of the plaintiff which caused or contributed to cause the accident in question, then you will charge the plaintiff with such negligence.”

We hold that these instructions were properly refused because they were in effect comments upon the facts presented and were fully covered by other instructions which fairly announced the law applicable to the facts in this case. A judge is ordinarily not permitted to comment on the facts. The record reflects that the court in general terms set out the theory upon which appellee was relying and also the theory of the defense, relied upon by appellant. He further instructed the jury to determine “which, if either, of the parties were guilty of negligence which caused, concurred, or contributed to cause the injuries complained of.” He gave the accepted definition of negligence to the jury, and the definition of the meaning of proximate cause and contributory negligence as applied to both parties. The court further properly instructed the jury relative to certain recognized rules of the road which it would consider in determining whether either of the parties was guilty of any negligence. He further instructed covering several traffic statutes of the state pertinent to the facts presented relating to speed of motor vehicles, the duty of the motor vehicle operator upon approaching a pedestrian walking upon or along a public highway, in the language of the particular statute.

As indicated, appellant appears not to complain about these general instructions given by the court, which applied to both parties, but contends that they do not fully cover his theory of the case. We do not agree. As indicated, the instructions given by the court, when considered as a whole, correctly declared the law applicable to the facts presented. Appellant’s requested instructions were fully covered by those which the court gave. The facts were not complicated. It was, therefore, not necessary for the jury to be instructed on any particular facts relied upon by appellant, in order to understand and answer appellant’s theory of contributory negligence. The court fully and fairly covered appellant’s theory of contributory negligence in the following instruction: “No. 5 Contributory negligence is the failure to use ordinary care for his own safety on the part of the person injured, which contributes directly or proximately to his own injury, and but for which, taken in connection with the negligence, if any, of the person sought to be charged, the injury would not have occurred. ’ ’

Reversible error is committed only where no other instruction was given covering defendant’s theory of defense. See Cain v. Songer, 176 Ark. 551, 3 S. W. 2d 315, and Pacific Mutual Life Ins. Co. v. Smith, 166 Ark. 403, 266 S. W. 279. In answer to interrogatory No. 1 propounded to the jury, the jury found that defendant (appellant) was guilty of negligence which caused, concurred or contributed to cause plaintiff’s (appellee) injuries, and in interrogatory No. 2 the jury found that plaintiff (appellee) was guilty of no negligence causing, concurring or contributing to cause his injuries.

We find no error in the court’s refusal to give appellant’s Instruction No. 3, which was as follows: “You are told that a pedestrian has an obligation to keep a lookout for the presence of other persons and vehicles upon a street in order to protect himself and if you find that the plaintiff (appellee) failed to keep such a lookout, you may consider such fact upon the proposition of whether plaintiff was negligent.” This instruction did not properly declare the law applicable to the facts here. The court had correctly instructed the jury that “It is the duty of a pedestrian to exercise ordinary care for his own safety;” also, “Pedestrians, as well as motorists, are entitled to use the public highway, each must act with regard to the presence of the other.” This was in harmony with our holding in Walker v. Earnheart, 187 Ark. 1110, 63 S. W. 2d 971, where we said: “The general rule is that a pedestrian has the same right to the use of a public street as the driver of a motor vehicle, and that each is obliged to act with due regard to the movements of the other, and neither is required to anticipate the negligence of the other. The rule is thus stated in Murphy v. Clayton, 179 Ark. 225, 15 S. W. 2d 391, 393: 'Drivers of automobiles and pedestrians both have a right to the street, but the former must anticipate the presence of the latter and exercise reasonable care to avoid injuring them.’ ”

Finally, we find no error in the court’s refusal to give appellant’s following Instruction No. 4: “The court instructs the jury that if they believe from the evidence that the injuries, if any, sustained by the plaintiff were a result of a mere accident, that is, without negligence of anyone, then your verdict will be for the defendant.” The facts did not warrant this instruction. What we said in Newark Gravel Co. v. Barter, 179 Ark. 799, 18 S. W. 2d 331, applies with equal force here: “The appellant urges a reversal of the case, first, on the ground that the injury was due to inevitable accident, and calls attention to authorities holding that no recovery can be had for a mere accident. It is useless to call attention to or to review authorities on this question, because this court has repeatedly held that no one is liable for a mere accident. Moreover, the jury was instructed fully on the question of negligence, and was told that appellee could not recover, unless the injury was caused by the negligence of Austin, and that this negligence must be the proximate cause of the injury ... If Austin was guilty of negligence that caused the injury, it was not an accident, and appellant is liable. If Austin had been guilty of no negligence, then it would have been an inevitable accident, and there could have been no recovery. These questions, however, were submitted to the jury under proper instructions, and the jury’s verdict is against appellant on this issue. Moreover, there is no evidence in the record tending to show an unavoidable accident. ’ ’

As indicated, the jury here, under proper instructions, had found that appellant was guilty of negligence and that appellee was free of any negligence. We find no evidence in this record that even tends to show an unavoidable accident. The text writer in C. J. S. Vol. 65, Sec. 264, Negligence, (e) announces the general rule applicable here in this language: ‘ ‘ Ordinarily the issue of inevitable or unavoidable accident should be submitted to the jury where it is raised by the evidence; and such issue is raised when, and only when, there is evidence tending to prove that the injury resulted from some cause other than the negligence of the parties. It is not raised and may not be submitted for consideration by the jury where either party was guilty of negligence in the situation which resulted in the injury, or if there is no evidence tending to prove that something other than the negligence of one of the parties caused the injury complained of . . .”

Finding no error, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Bollinger v. Ark. State Highway Commission.
    5-1499
    315 S. W. 2d 889
    Opinion delivered May 19, 1958.
    [Rehearing denied September 29, 1958.]

      Mark E. Woolsey, for appellant.

      W. R. Thrasher, Edward Boyette, and Bill Demmer, for appellee.
   Ed. F. McFaddin, Associate Justice.

The Arkansas State Highway Commission (hereinafter called “Commission”) filed this suit to have obstructions removed from the right-of-way of State Highway No. 22 in the City of Charleston. It was claimed that the appellant, Bollinger, had encroached on the right-of-way by placing his filling station, pumps, signs, etc. within the right-of-way fixed by the County Court order of 1927. Bollinger denied the validity and effect of the County Court order, denied the claimed width of the right-of-way, and denied any encroachment. The Chancery Court heard the evidence ore terms and rendered an opinion, which is in the record and has proved helpful to us. The Chancery findings and decree were in favor of the Commission; and Bollinger has appealed, presenting the points hereinafter to be listed and discussed.

I. Validity Of The Entry Of The 1927 County Court Order. In 1927, the Arkansas Highway Commission decided to construct State Highway No. 22, and the citizens of Charleston worked with the Commission to obtain the right-of-way. One of the citizens actively assisting the Commission was the appellant, Bollinger. On December 19, 1927, an order was entered, which appears in the County Court Becords of Franklin County, and which laid out the highway right-of-way and fixed the width of the right-of-way on each side of the center line. The Commission claimed that this order made the right-of-way ninety feet wide in front of the Bollinger property here involved, being forty feet on the north side of the center line, and fifty feet on the south side of the center line; and that Bollinger’s filling station, pumps, etc. encroached on the right-of-way. Bollinger claimed that the order of 1927 was void for several reasons; and that he was not encroaching on the true right-of-way. It was conceded by all parties that in 1927 Bollinger’s father owned the particular property here involved, with a fence along the right-of-way, thirty feet from the center of the highway; that appellant, Bollinger, acquired the property here involved in 1938; and removed the fence and constructed a filling station, pumps, etc. thereafter.

It is appellant’s contention that the County Court was not legally in session when the particular order here involved was entered: that in 1927 the terms of the County Court of Franklin County were the third Monday in January, April, July, and October; that the regular October term convened on October 17, 1927; that the Court then duly adjourned to November 12, 1927; and that when the Court adjourned on November 12,1927, there was a lapse of the term because the adjourning order says, "Court adjourned until...........................and that the effect of this unfilled date was to lapse the term. Appellant cites and relies on the case' of Ex Parte Baldwin, 118 Ark. 416, 176 S. W. 680.

It was admitted that the County Quorum Court duly met on November 14, 1927; that following the adjourning of the Quorum Court, the County Court records show, “Court adjourned until December 19, 1927”; and that the order here attacked bears date of December 19, 1927 and duly appears in the County Court Records as a part of the proceedings of that date, and has been of record since 1927. Notwithstanding these admissions, appellant says that the failure to complete the date in the adjourning order of November 12,1927, as heretofore copied, lapsed the County Court until the January, 1928 term; and that the purported order of December 19, 1927 was not a County Court order but the action of the County Judge.

There are several sufficient answers to appellant’s contention:

(a) The order of December 19, 1927 has been of record and unassailed since 1927; and after all these years presumptions must be indulged in favor of its validity. Parsley v. Ussery, 198 Ark. 910, 132 S. W. 2d 1; Cannon v. Price, 202 Ark. 464, 150 S. W. 2d 755.

(b) The contention made by the appellant in the case at bar is a collateral attack on the County Court order, and for that reason cannot prevail. Stumpff v. Louann Provision Co., 173 Ark. 192, 292 S. W. 106; Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508.

(c) Even if the County Judge had merely acted as an agent of the County in making the order of December 19, 1927, still the County Court adopted and ratified the order by paying out County money arising for right-of-way claims because of tbe order. Watts & Sanders v. Myatt, 216 Ark. 660, 226 S. W. 2d 800; Wilcox v. McCallister, 186 Ark. 901, 56 S. W. 2d 765.

So, for tbe reasons stated, we find no merit in appellant’s attack on tbe validity of tbe entry of the 1927 County Court order.

II. Invalidity Of The 1927 Order Because Of Lack Of A Definite Description. Tbe 1927 Court order, changing widening and laying out the right-of-way of State Highway No. 22, described a road which began on the west side of Franklin County and proceeded easterly. The order described the center line of the highway for the entire distance, and then stated the width of the right-of-way by reference to stations — that is, 100-foot distances from the point of beginning.

Appellant says that the order is too indefinite to be valid; but we see no merit to such claim. We have cases which hold certain descriptions to be indefinite (see Burns v. Harrington, 162 Ark. 162, 257 S. W. 729; and Wallace v. Desha County, 194 Ark. 848, 109 S. W. 2d 950); but the highway location in the case at bar is so definite that “a stranger with a compass and a chain” could follow the road as laid out in the order. The road lias a beginning point, a definite course, a length, and a width. The order describes a definite line which can be located by any competent surveyor. Several located the line and testified in the case at bar. The County Court order says that for certain distances — stations of 100 feet each — the highway right-of-way will be a designated number of feet on the left (north) side of the center line, and a designated number of feet on the right (south) of the center line. In People v. Board, 20 N. Y. S. 7, the Court, in approving an order laying out a highway, said: ‘ ‘ The order laying out the road in question was legal. The center line of the road was accurately given, and the width of 25 feet on each side of said center line. This was sufficient. People v. Commissioners, 13 Wend. 310.” To the same effect see also 39 C. J. S. 1003.

In the case at bar, we hold that the order was entirely definite; and, therefore, we reject appellant’s second contention.

III. Encroachments On The Right-of-way. Appellant claimed that the highway right-of-way was only sixty feet wide (that is, thirty feet on either side of the center line) in front of appellant’s service station; that appellant’s pumps, etc., claimed to be encroachments, were more than thirty feet north of the center line of the highway; and that, therefore, there were no encroachments by appellant. The Commission claimed that the highway right-of-way, as laid out by the 1927 order, was ninety feet wide in front of appellant’s service station, being forty feet north of the center line and fifty feet on the south of the center line. To substantiate this claim of encroachments, the Commission alleged and offered proof to establish that appellant’s service station is between Station 145.00 and 146.10. According to the 1927 order, the right-of-way is ninety feet wide between Station 143 and Station 192, or a distance of 4,900 feet. Several witnesses supported the Commission on the question of appellant’s encroachment. The Witness Perldns introduced in evidence his map which showed the encroachments. The Witness Levaris introduced in evidence his map, which likewise showed the encroachment. The "Witness McCloud testified:

“Q. Are yon familiar with the subject property? The property of Mr. John Bollinger over which this lawsuit is brought?

A. Yes, sir.

Q. Have you ever made any measurements or anything of that nature to determine how far, if they are, these encroachments are on the right-of-way? The island and the sign that has been referred to here this morning?

A. Yes.

Q. You have made such measurements?

A. Yes.

Q. Do you remember to what extent, if any, these pumps and pump island encroach upon the right-of-way?

A. Well, the pumps, the pump island, I would say is thirty feet from the center line, and the right-of-way at that point, according to the 1927 court order and the plat, is forty feet.”

From a careful study of the maps and the testimony we conclude that the encroachments were shown and that appellant’s contention to the contrary is without merit.

IY. No Notice Or Estoppel. Under this topic heading in his brief, appellant claims: that, even if the 1927 order made the highway ninety feet wide in front of his service station, still he had no notice of such fact; that there was a fence along his present property in 1927; that the fence was only thirty feet north from the center line of the highway; that the Commission made no entry on his property beyond the fence; that he voluntarily tore down his fence in 1938 when he acquired the property from his co-heirs; that he erected his pumps, etc. more than thirty feet north of the center line of the highway; that the Commission cannot claim beyond thirty feet north of the center line of the highway since there was no “entry” under the 1927 order beyond the 30-foot line. Among other answers to appellant’s contention, the Commission claims that when Mr. Bollinger took down the fence and erected his service station and made it available to the public in 1938, such act constituted an entry by the public on the full forty-foot right-of-way north of the center line.

The Chancellor, in his opinion, said:

“As far as actual notice is concerned, Mr. Bollinger was on the committee that laid out this 1927 Highway and went up and down the highway and took right-of-way agreements. One of his witnesses was paid on the basis of an 80-foot right-of-way west of town, based upon the 1927 order. Mr. Bollinger told about how some of these landowners objected when they had trees in the right-of-way; how he took an engineer out to see his own father about leaving a tree in the right-of-way. The plans of the Highway Commission show that the same tree that was left was between the thirty-foot line and the forty-foot line in this Highway right-of-way of 1927. This would indicate that there was actual notice that this tree was in the right-of-way ... We have several Supreme Court decisions, all holding that when the county condemns land, the county is liable for the damages.

The land mark case is Arkansas State Highway Commission v. Palmer, 222 Ark. 603, 262 S. W. 2d 772 . . .

It seems to me in a case like this one where the county condemns the land and the property owner is suffering damages and didn’t get around to doing anything about it until this late date, that the county would be the party that might be liable for the damages . . . There is no adverse possession here. The Arkansas Statutes of 1947, § 37-109, based on Act 666 of 1923, provide that title to any Highway is not acquired by adverse possession, so yon can’t say that there is any adverse possession here, because this law was passed in 1923 and this order wasn’t made until 1927. So as I see it, the thing to do here — the practical approach — -is to enter this injunction, . . . and to allow Mr. Bollinger to file a claim against the county. If the county does not allow his claim, he can bring it up in the Circuit Court and have a jury trial . . .”

We conclude that the Chancery decree was correct; and it is accordingly affirmed.

Harris, C. J., and George Rose Smith and Ward, JJ., dissent.

       The defendants were Mr. Bollinger and his wife. She had only dower interest; and we will continuously refer to Mr. Bollinger as though he were the sole defendant and appellant.

       Franklin County is divided into two Districts (see Act No. 51 of ' 1885); but the District in which the County Court met does not enter into this case, as both parties admitted in oral argument. Sec. 2266 C. & M. Digest gives the terms of the Franklin County Court applicable in 1927.

       This was fixed by Act No. 340 of 1927, which was prior to the law as now found in § 17-401 Ark. Stats.

       We copy the beginning point and a few calls in the description of the center line of the road in order to illustrate the statement: “Beginning at a point in the present traveled road 1,888 feet North of the corner of Sections 9,10, 15, and 16, Township 7 North, Range 29 West: running thence North 68 degrees 45 minutes East for a distance of 134.7 feet; thence around a 3 degree curve to the right for a distance of 522.22 feet; thence North 84 degrees 25 minutes East for a distance of 3,384.85 feet; thence around a 2 degree curve to the right for a distance of 515 feet; . . .”

       We copy a portion of the order to illustrate our statement: “The right-of-way widths required for the alignment as hereinbefore described to be as follows:
      Station to Station Lineal Feet Width to Left of Center Line Width to Right of Center Line Tofal Width Feet
      00 to 56 5600 40 40 80
      56 to 66 1000 50 50 100
      66 to 71 500 40 40 80
      71 to 74 300 40 50 90
      74 to 120 4600 40 40 80
      120 to 143 2300 30 30 60
      143 to 192 4900 40 50 90”
      Appellant’s property lies between Station 143 and Station 192.

       As heretofore stated, the particular property here involved was owned by appellant’s father in 1927. After the death of Mr. Bollinger, Sr., appellant acquired the interest of his co-heirs in 1938 and took down the fence and erected his service station sometime thereafter.


author: Minor W. Millwee, Associate Justice.

text:
    Olmstead v. Rosedale Building & Supply, et al.
    5-1568
    313 S. W. 2d 235
    Opinion delivered May 19, 1958.

      Franh J. Wills, for appellant.

      H. B. Stubblefield, for appellee.
   Minor W. Millwee, Associate Justice.

Appellants are F. H. Olmstead Company, Inc., and Frank H. Olmstead, its president and principal stockholder. Appellees are Rosedale Building & Supply Company, Inc., and C. C. Hudgens, its principal stockholder. On April 1, 1954, appellants bought certain assets of a building supply business from appellees located at 8108 Asher Avenue in Little Rock, Arkansas, executing secured notes for the greater portion of the purchase price. In the sales contract appellees agreed, as a part of the consideration for said sale, not to engage directly or indirectly in any business competition with appellants in the Rosedale Area of Pulaski County, as defined in the contract, for a period of three years.

A suit brought by appellants on August 12, 1955, for alleged breaches of the non-competitive agreement resulted in a decree entered May 2,1956, enjoining appellees until April 1, 1957, from “directly or indirectly furnishing any building materials for the erection of, or erecting, any structures on any lands” in the restricted area and from engaging in any business competition with that of appellants in the area during said period. The cross-complaint of appellees seeking judgment against appellants for $1,470 in damages was ordered dismissed. We affirmed the decree in Hudgens v. Olmstead Manufacturing Company, 227 Ark. 475, 300 S. W. 2d 26.

Appellants defaulted on the monthly payments due on the purchase money notes which had been paid down to approximately $8,000 on July 12, 1957, when appellees brought the instant suit to foreclose their liens on the assets of the building supply business securing the payment of said balance. In their answer and counterclaim, appellants claimed actual and punitive damages in excess of the unpaid balance of said purchase money notes on account of alleged breaches of the non-competitive agreement by appellees, and asked for cancellation of said notes and the mortgages executed to secure them. The reply of appellees contained a general denial and affirmatively pleaded the former suit and decree as res ■judicata and a complete bar to all matters alleged and relief sought against them in the counterclaim. By agreement, appellants paid $8,500 into the registry of the court and the liens held by appellees on the business assets were transferred to said fund and the assets released. This appeal is from a decree dismissing appellants’ counterclaim and directing that their indebtedness to appellees in the amount of $8,366.80 be paid from the funds in the registry of the court.

It is first contended that the chancellor erred in holding that the prior suit between the parties precluded appellants from introducing evidence of breaches of the non-competitive agreement by appellees which occurred prior to May 2, 1956, the date of the former decree. This proof was offered in support of appellants’ plea that such breaches resulted in a partial failure of consideration for the purchase money notes sued on. In this connection it was shown on the former trial that C. C. Hudgens was the principal stockholder in two building material businesses at the time of the sale of the assets of Rosedale Building & Supply Co., Inc., to appellants; and that the other corporation was then inactive but was reactivated by Hudgens shortly after the sale when he began constructing and selling homes on lots he owned in the restricted area, the materials being furnished by the reactivated corporation. Appellants’ offer of proof in the instant suit related to the same alleged breaches of the agreement which were fully explored and enjoined in the prior suit. Appellants insist that since there was no specific prayer for damages in the former suit as to such breaches, they were entitled to litigate that issue here.

This presents a question upon which there is a sharp division of authority, particularly where the second suit is one at law for damages. A statement by the text-writer in 28 Am. Jin\, Injunctions, Sec. 309, indicates that most courts favor the proposition that, where damages are not sought as incidental to an injunction, the decree granting the injunction is not a bar to an action at law for past damages on account of the thing enjoined. However, other courts hold that an injunction decree is a bar to an action at law for past damages regardless of whether the plaintiff in the injunction suit pleaded damages, and regardless of whether there was an attempt to recover damages in that suit. The text-writer’s statement as to the majority rule is based upon an annotation in 14 A. L. R. 543. A more recent annotation on the question in 26 A. L. R. 2d 446 indicates that most courts, including our own, hold that a decree deciding an injunction suit is res judicata in a subsequent action for damages of all issues determined in the injunction proceeding. Our own cases go further and hold that the decree in the injunction suit is also res judicata of all issues in a subsequent action' for damages which could have been interposed in the injunction suit.

In Gosnell Special School Dist. v. Baggett, 172 Ark. 681, 290 S. W. 577, this court reversed and dismissed a circuit court judgment awarding damages to plaintiffs for breach of their contract to teach school and sustained the defense of res judicata interposed by the school district by virtue of a former injunction suit involving the same contract. In so doing, the court said it was unimportant that the plaintiffs did not ask the affirmative relief of damages for breach of the contract in the injunction suit and reaffirmed the following statement from Taylor v. King, 135 Ark. 43, 204 S. W. 614: “The rule has been often announced in this court that the judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit.” The court also approved the following statement in 15 R. C. L. Judgments, Sec. 439: “If it is doubtful whether a second suit is for the same cause of action as the first, it has been said to be a proper test to consider whether the same evidence would sustain both. If the same evidence would sustain both, the two actions are considered the same, and the judgment in the former is a bar to the subsequent action, although the two actions are different in form.” Many cases from other jurisdictions are cited in support of this general rule in 30A Am. Jur., Judgments, Sec. 365.

In Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610, we affirmed a decree holding a former suit to redeem land and declare a deed a mortgage to be res judicata of a subsequent suit by the grantor to recover rents and damages for waste by defendants, although the grantor failed to assert such claim in the original suit. We there said: “The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit. Gosnell Special School District No. 6 v. Baggett, 172 Ark. 681, 290 S. W. 577; Cole Furniture Co. v. Jackson, 174 Ark. 527, 295 S. W. 970; Prewett v. Waterworks Imp. Dist. No. 1, 176 Ark. 1166, 5 S. W. (2d) 735.” See also, Coley v. Westbrook, 208 Ark. 914, 188 S. W. 2d 141; Crump v. Loggains, 212 Ark. 394, 205 S. W. 2d 846; Timmons v. Brannan, 225 Ark. 220, 280 S. W. 2d 393.

In the fourth subdivision of Ark. Stats., Sec. 27-1121, it is also now provided that a defendant must set out in his answer as many grounds of defense, counterclaim, or set-off as he shall have, and we have held the provision mandatory. Shrieves v. Yarbrough, 220 Ark. 256, 247 S. W. 2d 193. The manifest purpose of this and similar statutes is to enable litigants to settle all matters in dispute between them in a single suit. Troxler v. Spencer, 223 Ark. 919, 270 S. W. 2d 936.

In Hatch v. Scott, 210 Ark. 665, 197 S. W. 2d 559, relied on by appellants, a judgment for a tenant in an unlawful detainer action involving the issue as to service of a notice to quit, was held not res judicata of tenant’s rights under renewal provision of lease presented in a subsequent suit by the landlord to construe the lease, and for its cancellation and a writ of possession, in the absence of a showing that such issues were in fact decided in the first action. "We there pointed out that there was nothing in the record of the former proceeding to show what the circuit court’s judgment was based on. Nor was there any showing that the former judgment involved a decision of the merits of the case. In the case at bar the matter of the repeated breaches of the noncompetitive agreement prior to May, 1956, constituted the primary and controlling issue in the prior injunction suit and was there very definitely and directly adjudicated on the same proof that was offered here. Any claim that appellants had for damages on account of these repeated breaches of the contract could and should have been interposed in that suit. Under the foregoing-rules, we conclude that the chancellor did not err in sustaining appellees’ plea of res judicata to the counterclaim for any damages by reason of breaches of the contract occurring prior to May 2, 1956.

The question whether appellants introduced sufficient evidence to sustain a judgment against appellees for damages by reason of Hudgens’ breach of the contract after May 2, 1956 and prior to April 1, 1957, has given us much concern. It was shown that in several instances after May 2, 1956, Hudgens sold lots in the restricted area to the Commercial Corporation, which took mortgages back from its vendees for part of the sale price and in some instances assigned said mortgages to Hudgens. F. H. Olmstead also testified that he saw Hudgens “very active” in the restricted area after May 2,1956, but did not know just what he was doing. Hudgens ’ brother and nephew owned stock in the Commercial Corporation but there was neither allegation nor direct proof that Hudgens conspired with the corporation’s stockholders to circumvent and violate the noncompetitive agreement. Commercial Corporation is not a party to the instant suit and there is no showing that Hudgens, or any corporation he was interested in, furnished any of the materials for the houses constructed after May 2, 1956. The former decree did not enjoin Hudgens from selling lots in the restricted area. In these circumstances, we cannot say the chancellor erred in holding the evidence insufficient to assess damages against appellees on account of alleged breaches of the contract occurring after May 2, 1956.

After termination of the non-competitive contract on April 1, 1957, Commercial Corporation opened a building material yard in the restricted area near that of the appellants and Hudgens subsequently became a stockholder in the corporation. Olmstead testified that he observed a dual sign post on the business premises in September, 1957, reading “Commercial Corporation” on one side and “Rosedale Building & Supply Company” on the other. It is argued that appellees should be perpetually'enjoined from using the name “Rosedale” in the rather extensive area involved; Since appellants’ own business is called “Rosedale Lumber and Paint Co.,” it is insisted that appellees’ use of the word “Rose-dale” is misleading and tends to create confusion and an infringement on appellants’ trade name. This was not made an issue in the pleadings nor is there any proof to sustain appellants’ contention that use of the word would be misleading or confusing.

Appellants’ other contention is that they were entitled to damages of $1,600 for attorney fees and other costs incurred in litigating the first suit. In the first place, there is no provision under our statutes and decisions to allow attorney fees and miscellaneous expenses as elements of damage in an action for breach of contract. Evans v. Ozark Orchard Co., 103 Ark. 212, 146 S. W. 511; Romer v. Leyner, 224 Ark. 884, 277 S. W. 2d 66. Even if such items were recoverable, the right to them could and should have been asserted in the prior suit under the principles already announced.

The decree is affirmed.


author: George Rose Smith, J.

text:
    Ward v. Nolen.
    5-1520
    313 S. W. 2d 240
    Opinion delivered May 19, 1958.

      Spencer & Spencer, for appellant.

      Wayne Jewell, for appellee.
   George Rose Smith, J.

This is a workmen’s compensation case, in which the appellant asserts a claim for disability resulting from a ruptured disc in his back. The compensation commission rejected the claim, holding that Ward had not proved his case by a preponderance of the evidence, and that decision was affirmed by the circuit court.

The issue for the commission was largely one of credibility. Ward was employed at the appellee’s sawmill for three days and a half, ending May 13, 1955. He testified that on the morning of the last day he injured his back as he was using a cant hook in trying to control a log that he was rolling down the skidway. The employer and several of his employees testified that Ward worked only as a handyman around the mill, culling and loading lumber, that Ward never worked on the skidway, and that he did not at any time use a cant hook. Ward also stated that later in the same morning something snapped in his back as he jumped from a truck to the ground. Nolen, the employer, testified that he was within three feet of Ward at the time and that Ward simply stepped down from the truck, without jumping. It is conceded that Ward then complained of a “catch” in his back, professed himself unable to work, and obtained his wages for the brief period of his employment.

In denying the claim the commission referred to proof that Ward had been convicted of larceny, had been guilty of stealing chickens, and had testified falsely about a prior claim for a back injury. The commissioners -went on to say: ‘ ‘ Our decision in the case now before us is based on the fact that we do not believe a preponderance of the evidence establishes that claimant’s breakdown was by reason of events in the employment. The claimant has been shown to be an unreliable individual, and his demeanor on the witness stand was such that we deem him to be evasive and unworthy of belief. We think it definitely proved that this claimant did not work on the skidway with a cant hook as he testified to having done when pain first struck him. We are dubious that his first intimation of back difficulty became apparent to him while he was on the job on May 13, 1955.”

In the matter of credibility the commission’s findings have the binding force of a jury’s verdict. When we lay aside Ward’s own version of how he received his injuries, all that remains is the fact that he complained of a catch in his back and that he is now disabled by a ruptured disc. This proof does not compel the conclusion that the claimant received an accidental injury in the course of his employment.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Eastburn v. Galyen.
    5-1570
    313 S. W. 2d 794
    Opinion delivered May 19, 1958.
    [Rehearing denied January 23, 1958.]

      Bose, Meek, House, Barron <& Nash, for appellant.

      Nabors Shaw, for appellee.
   Paul Ward, Associate Justice.

This same subject matter comes to us on appeal for the second time. The opinion on the first appeal was delivered March 11, 1957, and will be found in 227 Ark. 506, 300 S. W. 2d 10. A brief statement of the facts, pleadings, and result of that ease is necessary to an understanding of the issue on this appeal.

On April 20, 1956, appellant, John M. Eastburn, purchased the Seven Valley Cheese Plant, located at Mena, from appellee, L. A. Galyen, for the purchase price of $45,000. A down payment of $10,000 was made by Eastburn, and he was to pay the balance in monthly installments of $500. The payments were not made, and some months later Galyen filed suit in the chancery court for the balance due on Eastburn’s note and to foreclose the mortgage on the cheese plant. Eastburn filed an answer in which he sought a recision of the purchase agreement on the ground that he and his wife had been induced to purchase the cheese plant by fraudulent representations of Galyen and his agents. Prom a decree in favor of Galyen, Eastburn appealed to this Court, where we held, in effect, that Eastburn had, by his acts, waived any misrepresentations that may have been made to him. See the Eastburn case, supra.

After the above mentioned disposition of the first litigation, on May 23, 1957 Eastburn and his wife filed a complaint in the circuit court against the said L. A. Galyen for special and exemplary damages based on the same, or essentially the same, allegations of fraud and misrepresentations which were relied on as a defense to the original foreclosure suit. To the above complaint Galyen filed an answer, later treated by the trial court as a demurrer, in which he pleaded estoppel based on the former litigation, setting forth, as exhibits, copies of the former decree, the opinion of this Court in the former case, and this Court’s mandate therein. The trial court dismissed the complaint, holding that East-burn’s claim was “barred by the doctrine of res judicata. ’ ’

We think the trial court was correct in dismissing the complaint. When the foreclosure suit was filed against Eastburn, there was available to him as a defense a choice of two remedies. One was to accept title to the cheese plant and sue Galyen for the damage he had been caused by the alleged misrepresentations. The other remedy called for a rejection of title to the property, and a petition for recision of the sale and a refund of the purchase money which had been paid. When Eastburn elected to pursue the latter remedy, he was thereby precluded from later resorting to former remedy. All the essential conditions or elements applicable to the rule relating to election of remedies are present in this particular case: (a) Both remedies were available to appellants, (b) they are inconsistent, (c) they are based on the same state of facts, (d) the same parties were involved in both suits, and (e) appellants were not mistaken as to the existence of any material facts.

In the case of Bigger v. Glass, 226 Ark. 466, 290 S. W. 2d 641, the Court approved, and commented on, three essential elements: (1) The existence of two or more remedies, (2) the inconsistency between such remedies, and (3) a choice of one of them. There is, we think, no doubt that all of these elements are present in the case under consideration: (1) When Galyen brought the foreclosure suit, Eastburn could have sought — as he did — a reeision of the purchase contract and a return of the money he had already paid to Gal-yen, or he could have accepted the sale and asked for damages. (2) It was inconsistent for Eastburn to offer to return title to the cheese plant to Galyen, as he did in the first suit, and retain title in himself, as he had to do in the present suit. On this point the opinion in the Bigger case, supra, contains this statement:

“. . . Stripped of all legal niceties, the matter is simply this: when Glass asked specific performance he was offering to surrender the property to Bigger for the full amount of money contracted. When Glass asked damages, he was keeping the property and seeking damages. Certainly keeping the property is inconsistent with surrendering the property . . . ”

(3) It is clear under our many decisions that Eastburn made an irrevocable choice of remedies when he filed his answer in the foreclosure suit seeking a reeision. Again we quote from the Bigger case for language that bears directly on this point:

“. . . In many jurisdictions, merely filing a specific performance suit is not considered an irrevocable choice, for that suit may be dismissed without prejudice and then a damage action may be filed. This is no longer an open question in Arkansas, for we have a line of cases all holding that the filing of the suit is the act of irrevocable election . . .”

We can see no rational difference in this connection, between filing an answer and filing a complaint. East-burn might have brought a suit for a reeision before the Galyens brought the foreclosure suit, but the result obviously would have been the same. Also, under this view it is immaterial that Eastburn, under our former decision, did not have a decision on the merits of his allegations, because his election of remedies was made when his answer was filed.

Practically the same rules set forth above were announced in the case of Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, which opinion is extensively quoted in the Bigger case, supra. It was there indicated that B elding would not have been bound by his election of a remedy if he could show “that his election was based upon a mistake of material facts.” As stated before,, Eastburn does not here contend that he was mistaken as to any material facts. The Court also said, in speaking of the doctrine of election of remedies: ‘£ Certainly this doctrine has the merit of preventing one who is about, to hale another into court from making a capricious choice between inconsistent remedies which he may pursue.”

We have read with care the numerous cases and authorities presented in appellants’ able brief, but we find nothing to compel a conclusion different from the-one we have reached. Appellants stress the holding in Harris v. Whitworth, Admr., 213 Ark. 480, 211 S. W. 2d 101, and the cases cited therein. There the principal issue was res judicata, and it is disclosed that, in the two-actions involved, each did not depend on the same proof, and different parties were involved in both. Appellants-cite Restatement, Judgments § 62, and Restatement Contracts § 383, to the effect that the remedy relied on as a bar must have been available to the elector. However, we see no application of that principle here because the remedy which appellants now seek to invoke was available to them in the foreclosure suit.

By what we have said heretofore we do not mean to imply that appellants might not also be barred from maintaining this present action under the doctrine of res judicata. This doctrine appears to be the one relied on by the trial court, but the result was the same as the result reached by us, and its decree should be, and it is hereby, affirmed.

Affirmed.

George Rose Smith, J., not participating.


author: Sam Robinson, Associate Justice.

text:
    Bailey v. State.
    4900
    313 S. W. 2d 388
    Opinion delivered May 19, 1958.
    [Rehearing denied June 16, 1958.]

      Thad D. Williams, for appellant.

      Bruce Bennett, Attorney General; by Thorp Thomas, Ass’t Attorney General, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Luther Bailey, was convicted in the Pulaski Circuit Court, First Division, of the crime of rape, and was sentenced to death. On appeal to this court the judgment was affirmed. Bailey v. State, 227 Ark. 889, 302 S. W. 2d 796. Certiorari to the United States Supreme Court was denied. Bailey v. Arkansas, 355 U. S. 851. Later, appellant filed in the same court where he was convicted a petition for writ of habeas corpus alleging that certain of his constitutional rights had been violated. He alleged specifically that he was denied compulsory process to obtain witnesses, in violation of Art. 2, § 10, of the Constitution of Arkansas, and the Fourteenth Amend-, ment to the Constitution of the United States, and further that he is a member of the Negro race and that his conviction is void because Negroes have been systematically limited in selection of petit jury panels in the court where he was tried. He prayed that a writ of habeas corpus be issued to the end that the conviction be set aside. The trial court granted the petition to the extent of ordering the superintendent of the penitentiary, where petitioner was confined awaiting execution, to produce the petitioner in court. The petitioner then filed an amendment to the petition for writ of habeas corpus and stated: “. . . this is a petition under Act 419 of the 1957 Acts of Arkansas, known as the Uniform Post-Conviction Procedure Act . . . That your petitioner has heretofore sought relief from his conviction by appeal to the Arkansas Supreme Court and by application for writ of certiorari to the United States Supreme Court. That the conviction under which the plaintiff is held and was sentenced is void and/or voidable in that he was denied the right of having compulsory process for obtaining witnesses in his favor in violation of Article 2, Section 10 of the Constitution of the State of Arkansas, the Fourteenth Amendment to the Constitution of the United States”; and prayed that his conviction be set aside.

The State, by the Attorney General, resisted the petition and affirmatively pleaded that Act 419 of 1957 is unconstitutional; that the Act would nullify Art. 2, § 11, of the Constitution of Arkansas, providing that the writ of habeas corpus shall not be suspended. At a hearing on the petition it was shown that prior to the trial the attorney for the defendant had requested the clerk of the court to issue subpoenas for the jury commissioners who had served as such from 1952 to the March term, 1956, inclusive, and that the court had refused to allow the clerk to issue the subpoenas. The trial court denied the petition, and the petitioner has appealed.

Act 419 of 1957 provides: “Section 1. Any person convicted of a felony and incarcerated under sentence of death or imprisonment who claims that the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of this State, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under a writ of habeas corpus, writ of cor am nobis, or other common law or statutory remedy, may institute a proceeding under this Act to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction or in any other proceeding that the petitioner has taken to secure relief from his conviction . . .”

It will be noticed that the Act does not apply where the alleged error has been finally litigated or waived in the proceedings resulting in the conviction. Without a doubt the question of whether the trial court erred in refusing to permit the jury commissioners to be subpoenaed was either finally litigated or the point was waived. In the trial of the case on its merits, the attorney for the defendant requested that subpoenas be issued for the jury commissioners who had served over a period of years, and the trial court refused to allow the clerk to issue the subpoenas. If the trial court erred, it was at that point. The defendant was represented by . able counsel who had every opportunity to make his record on the point and bring it up on appeal. If he did so, the alleged error was finally litigated. If this was not done, then the alleged error was waived. (As a matter of fact, the question of permitting the jury commissioners to testify was dealt with and disposed of on the first appeal.) If the defendant could at this time take advantage of the alleged error, likewise he could now litigate any other alleged error such as might be alleged to have occurred in the selection of the jury and admission of evidence or in the giving of instructions.

We do not reach the question of the constitutionality of Act 419 of 1957, because constitutional questions are not decided unless the case cannot be disposed of on any other ground. Duncan v. Kirby, 228 Ark. 917, 311 S. W. 2d 157, and cases cited therein.

Affirmed.


author: Per Curiam.

text:
    Morris v. State.
    4893
    313 S. W. 2d 241
    Opinion delivered May 19, 1958.

      James P. Baker, Jr., for petitioner.

      Bruce Bennett, Attorney General and Thorp Thomas, Ass’t Attorney General, for respondent.
   Per Curiam.

Petitioner, Morris, with a record behind him of many forgery convictions, is now serving a long term in the Arkansas State Penitentiary on pleas of guilty, in the Phillips Circuit Court, to the felony charges of forgery and uttering. Following the filing of his petition for writ of habeas corpus in an original action here, this court appointed able counsel to file brief here in petitioner’s behalf, and this has been done.

We hold that applicant’s petition must be denied. If he is proceeding under Act 419 of 1957 (now Sees. 43-3101 — 3110, Ark. Stats. 1947) and conceding without deciding the constitutionality of this act, then we can afford him no relief for the reason that he has not complied with, the procedural provisions of that act in that he did not first file a verified petition with the clerk of the court in which the convictions took place, and no action on any petition appears to have been taken in this connection by the trial court. Bee. 2 of the Act (Ark. Stats. Sec. 43-3102) provides: 44The proceeding is commenced by filing a petition verified by the petitioner with the clerk of the court in which the conviction took place.” Bee. 6 of the act (Sec. 43-3106 Ark. Stats.) provides: 4 4 The petition shall be heard in the court in which the conviction took place and before any judge thereof.” Bee. 8 of the act (Sec. 43-3108 Ark. Stats.) contains this language: 44A final judgment entered under this act (Secs. 43-3101 — 43-3110) may be reviewed by the Supreme Court of this state on appeal, brought by either the petitioner or the state within sis (6) months from the entry of the judgment. (Acts 1957, No. 419, Sec. 8 p. 1165).”

The record further shows that petitioner did not allege in his petition that the Phillips Circuit Court, in which he was convicted and sentences imposed for forgery and uttering, was without jurisdiction to try him on the charges. This court has repeatedly held that 4 4Where a petitioner for habeas corpus is in custody under process regular on its face nothing will be inquired into save the jurisdiction of the court whence the process came.” State, ex rel. Att’y General v. Auten, Judge, 211 Ark. 703, 202 S. W. 2d 763. Since petitioner does not allege here that the Phillips Circuit Court was without jurisdiction his petition cannot be considered by this court, his remedy was by appeal to this court, which he failed to prosecute.

Accordingly, the petition for writ of babeas corpus is denied.


author: Carleton Harris, Chief Justice.

text:
    Jacobs v. City Nat’l Bank of Ft. Smith, Ark.
    1518
    313 S. W. 2d 789
    Opinion delivered May 26, 1958.
    [Rehearing denied June 23, 1958.]

      Hardin, Barton, Hardin $ Garner, for appellant.

      Harper, Harper <& Young, for appellee.
   Carleton Harris, Chief Justice.

J. L. Jacobs operated an automobile motor company in Fort Smith under the name of Jacobs Motor Company. On September 24, 1955, Jacobs and wife, Mary Virginia, executed their promissory note to appellee in the sum of $3,000, due 90 days from date, and bearing interest at the rate of 6 per cent per annum until paid, representing borrowed money, which was deposited by Jacobs in Ms bank account with, appellee for use in his business. To secure the payment of said note, Jacobs and wife executed and delivered to the bank a second mortgage on certain real estate situated in Sebastian County. At the same time they executed a chattel mortgage on various household items. On December 27, 1955, Jacobs made a payment to the bank of $500 on the principal of said note, and paid the interest, leaving a principal balance due of $2,500, and on the same date, Jacobs and wife entered into a written extension agreement, which was attached to the note, extending the maturity date thereof to March 23, 1956. On January 31, 1956, Jacobs executed an additional promissory note to the bank for $6,000 for borrowed money, due on demand, for the purpose of obtaining money to use in his business. On February 6, 1956, apparently using a portion of the money obtained by the execution of the note on January 31st, Jacobs paid to the bank the principal balance of $2,500, and interest due on the note executed September 24, 1955, and extended to March 23,1956, and accordingly remained indebted to the City National Bank in the principal sum of $6,000. On April 21, 1956, Jacobs paid appellee $1,000 on the principal of said note together with interest, and executed a new note, due in 90 days, in the amount of $5,000, as a renewal thereon. Thereafter, the note was successively renewed without payment (except for interest) until October 18, 1956, when it was last renewed by the execution of a note by Jacobs to the bank in the sum of $5,000, due and payable 90 days from date, and bearing interest at the rate of 6 per cent per annum until paid. The mortgage of September 24,1955, was not released when the balance due on the note of same date was paid the bank on February 6, 1956, and under the bank’s contention, the mortgage was intended also to secure any future advances made to Jacobs. Suit ivas instituted against Jacobs and wife on April 15, 1957, for the sum of $5,000 (the amount due under the note of October 18, 1956) and sought to foreclose the mortgage, heretofore referred to, taken on the property in 1955. Jacobs counterclaimed for $6,000, alleging that the bank had illegally taken possession of certain of his motor vehicles, and wrongfully disposed of them at a price greatly under the actual value, and sought damages in the aforesaid amount. To explain the counterclaim, we relate the following facts. Jacobs would take a buying trip, and buy several cars. He would return to the bank, execute a chattel mortgage and note in blank, and discuss with the proper bank official the cars he had bought, giving them the necessary information about the automobiles, motor and serial numbers, etc. The bank would fill in the mortgage, listing the said cars by description, fill in the amount they would loan on the cars, and give this amount to Jacobs. Jacobs would sell to a prospective purchaser, and a conditional sales contract and note would be executed by the purchaser, and given to the bank after endorsement by Jacobs. He would then receive credit for the amount contained in the conditional sales contract, on the note which he had signed under the chattel mortgage, less $25 which went into a special account designated “Reserve Account.”

Sometime in January or February of 1956, Jacobs was informed by his doctors that he had cancer, or cirrhosis of the liver, and on February 8th, he left for Mayo Brothers Clinic for examination. The next day, several bank officials went to Jacobs’ used car lot, taking with them a letter which had been prepared and typed at the bank. The letter was directed to Edward Reed, president of the City National Bank, and advised the bank that Jacobs desired appellee to take over the cars and dispose of them in order to pay any indebtedness he might owe the bank. Jim Underwood, who had been left in charge of the lot, signed the letter. The bank thereafter proceeded to dispose of the vehicles which Jacobs had floor planned with them (for $14,-118.72), by selling them to one J. L. Swink for $9,625. Swink shortly resold them for $11,418. The ‘ ‘ Red Book, ’ ’ used by car dealers and finance companies, gave the ‘ ‘ as is” valne of the vehicles as $13,495, with average retail valne of $18,210.

On trial, the Chancellor held that the real estate mortgage dated September 24, 1955, did secure the $5,000 note dated October 18, 1956, and rendered judgment against Jacobs in the sum of $5,000, together with interest at the rate of 6 per cent per annum, $200 attorney’s fee, found that the claim of H. E. Jacobs was inferior to the lien of appellee’s mortgage, foreclosed any right, title, or interest of J. L. Jacobs and Mary Virginia Jacobs in the property, and ordered it sold. The counterclaim filed by Jacobs was dismissed. From such judgment of the court comes this appeal.

For reversal, appellant first asserts that the $5,000 note, dated October 18, 1956, was not secured by the real estate mortgage of September 24, 1955, and the court erred in holding otherwise. Next, it is contended that the bank became a trustee of the vehicles when it took possession of them, and did not comply with the provisions of the instruments, under which, it disposed of the automobiles. It is then urged that the bank, by repossessing some vehicles from the ultimate purchasers, waived the unpaid balance on them. We proceed to a discussion of each point.

In contending that the note in question was secured by the earlier mortgage, appellee relies upon the following provision in the mortgage (a printed provision and appearing in the defeasance clause):

“Now if the said mortgagors shall pay or cause said indebtedness to be paid with interest according to the terms hereof and all other indebtedness of the mort gagors to mortgagee; then this instrument to he null and void; otherwise to remain in full force and effect.” We deem this insufficient since one of the mortgagors was Mary Virginia Jacobs, who owed no other indebtedness to the bank, and did not subsequently execute any notes. While there is testimony that the bank intended the mortgage to cover future loans, it is noticeable that the mortgage provides that the mortgagors shall keep the property insured in the amount of $3,000. It would seem logical that if the mortgage were intended to cover other indebtedness, the clause would have read “in the amount secured by this mortgage.” Be that as it may, we consider the language insufficient to accomplish the result sought by the bank. In the case of American Bank & Trust Co. v. First National Bank of Paris, 184 Ark. 689, 43 S. W. 2d 248, this Court said:

“One may execute a valid mortgage to secure a debt to be contracted in the future (citing earlier cases) but, in order to do so, there must be an unequivocal agreement in the instrument itself that it is given for debts to be incurred in the future. * * * ”

In the same opinion, quoting from Word v. Cole, 122 Ark. 457, 183 S. W. 757, the Court further said:

“ ‘The effect of our cases is that a mortgage to secure future advances * * * is valid, but, if such purpose is intended to be accomplished, that fact must clearly appear from the instrument, and such purpose will not be presumed where the instrument does not contain a general description of the indebtedness secured so as to put one who examines it on notice that this was its purpose in order that such person may pursue the inquiry which such knowledge would suggest.’ ”

Further:

“Where one contracts in good faith with a debtor that the security given should include not only that specifically mentioned in the mortgage bnt other indebtedness, whether existing then or to be incurred in the future, it is not difficult to describe the nature and character thereof, so that both the debtor and third parties may be fully advised as to the extent of the mortgage. Sound policy demands no less. Especially is this true where the terms of the mortgage are sought to be extended by means of the language of the defeasance clause, which is usually at the end of the mortgage and, in the prepared forms commonly in use, is in small type which escapes all but the closest scrutiny.”

Numerous other cases denote the same holding. In the instant mortgage, there is nothing said about future advances; the instrument is only a form mortgage, and falls far short of meeting the requirements set forth in American Bank & Trust Co., supra.

We do not agree with appellants in their second contention. It is argued that when the bank took possession of the automobiles, it became a trustee of the vehicles, accordingly owed the highest fiduciary duty to Jacobs, and was bound to obtain the highest possible price for them. Appellants contend that the provisions of the chattel mortgages on the vehicles were not complied with, in that before a sale of the property was authorized, same should have been advertized by “ten days notice in some newspaper published in Sebastian County, Arkansas, or by written notices posted at least five places near the property.” This admittedly was not done. A number of witnesses testified that the automobiles were sold to Swink at a price considerably less than their value, and in fact, Swink later resold them at a figure approximately $2,000 higher than the amount he had paid for them. There was some evidence that other automobile dealers were notified by the bank of the proposed sale of the cars. We consider, however, all of such evidence to be irrelevant to the question involved, for the reason that the bank was not acting as trustee. The cars were taken over by the bank at the request of Jacobs, through Underwood. Though Jacobs originally desired that the bank send a man over to his used car lot to handle the cars there, he apparently recognized that appellee likely would not be willing to do so. From the testimony of Underwood:

“Q. Did he give you authority to dispose of the ears and power to turn them over to the bank?

A. He said it would be up to the bank what they wanted to do about it.

Q. Did he tell you to turn them over to the bank if they asked for them?

A. Yeah.

Q. And the bank did ask for them and you turned them over?

A. Yeah.”

As to whether a greater price could have been obtained for the vehicles, is mere conjecture. We agree with the trial court that the bank acted in good faith, and there was certainly no reason for appellee to dispose of the cars at a price less than could have been obtained. Jacobs himself ratified and confirmed the transaction, which is shown by defendant’s exhibit 19, an analysis sheet listing the various cars, their average retail value, the amount for which each had been sold by Swink, and the total amount of loss resulting from the sales. This was prepared by Jacobs on March 27th, when most of the vehicles had been disposed of. Jacobs had written on the bottom of the sheet: “I owe $5,000 note less res. $1,697.95.” Thus, Jacobs recognized his indebtedness under the note in question, and apparently had no thought that the bank had acted improperly, or beyond its authority, in disposing of the automobiles.

Nor can we agree with appellants’ third contention. As already stated, we do not characterize the bank’s action as “repossessing” the vehicles; rather, with the authority and consent of Jacobs, the bank undertook to help him out of a bad situation and 'minimize his losses. The reserve was applied against such losses, and this was with the authority of Jacobs, who, on February 23, 1956, wrote the bank to “Please release as much of my reserve as you can to apply on my indebtedness to the City National Bank.” Jacobs contends that the judgment should have at least been reduced by $1,908.45, the balance remaining in the reserve account at the time of the trial. Appellee admits that after all contracts are liquidated, Jacobs will be entitled to credit on the bank’s judgment for any amount of the reserve remaining.

We conclude that the court’s action in dismissing the counterclaim was proper.

For the error in holding that the note of October 18, 1956, was secured by the real estate second mortgage of September 24, 1955, that portion of the decree is reversed, and the cause remanded with directions to enter a decree not inconsistent with this opinion.

       A first mortgage was held by F. W. Dyke, trustee for the United Savings Association, which was recognized by appellee as being superior and paramount to the bank’s mortgage. The property was later conveyed by Jacobs and wife to one H. E. Jacobs, a party appellant in this case, but the effect of such conveyance is not emphasized by any of the litigants herein.

       The chattel mortgage was subsequently released by virtue of the payment of an agreed amount of money and is not now considered in this litigation.

       Prior to this date, Jacobs had executed other notes to the bank and obtained money therefor in the course of conducting his business, and had repaid such loans.

       The letter was prepared after previous conversation between Underwood and one of the bank officials.

       Emphasis supplied.

       Mr. and Mrs. Jacobs owned the property as tenants by the entirety.


text:
    McKamie v. Kern-Trimble Drilling Co.
    1569
    313 S. W. 2d 378
    Opinion delivered May 26, 1958.

      Keith, Clegg <& EcJcert, J. Fred Jones, for appellant.

      Wright, Harrison, Lindsey <& Upton, for appellee.
   J. Seaborn Holt, Associate Justice.

By proper procedure under our Workmen’s Compensation Law (Secs. 81-1301 — 1341 Ark. Stats. 1947), appellant, Mc-Kamie, sought an award of compensation. July 28,1955, appellant’s feet were severely burned when he spilled caustic acid on Ms shoes, an injury conceded to be compensable under the above compensation law. The claim was first heard and denied by a single commissioner, later was denied by the full commission, and again on appeal to the circuit court was denied.

On this appeal (by stipulation) “The respondents (appellees) take the position that claimant was temporarily totally disabled for twelve weeks and three days or until October 24, 1955 and that he had a temporary partial disability from October 24,1955 until May 1,1956. Respondents take the position that they have paid the claimant for his disability and have no further liability.” Further, they take the position that the treatment and hospitalization by Dr. Carruthers was not authorized by appellees or the commission, therefore, appellees are not liable. Appellant, on the other hand, states his position in this language: “The claimant’s position is that he has never recovered from his foot injury and as a direct result and consequence of his foot injury he developed a bursa at his knee which was removed by Dr. Carruthers and that the disability as well as the medical expense resulting therefrom is a part of the compensable injury and respondent is liable therefor.”

Appellant was first treated by a physician in El Dorado who applied dressings to his burns. From August 4 to October 20, 1955 Dr. Rushton of Magnolia treated appellant, during which time appellant’s healing had progressed to the point that enabled him to engage in light work for which he received somewhat less pay than before his injury. Next, appellant was treated by Dr. Shuffield of Little Rock from November 21, 1955 to April 30, 1956, at which time Dr. Shuffield informed appellant that he could return to his regular job on May 1, 1956. The record reflects that from the date of the injury (July 28, 1955) through February 20, 1956, Mc-Kamie was allowed and received temporary total disability payments from the appellees and from February to May 1956 he was allowed and received temporary partial compensation. All payments to appellant stopped on May 1, 1956. On April 30, 1956, when Dr. Shuffield told appellant he could return to his regular job, appellant consulted, for the first time, Dr. Carruthers with respect to a painful swelling on the back of his left knee, which Dr. Carruthers correctly diagnosed as a bursa, and which he removed by surgery on May 8, 1956. Dr. Shuffield examined appellant on April 30, 1956, (the same day on which Dr. Carruthers examined him) and was of the opinion that this bursa was not caused by or the result of the burns suffered by appellant on July 28, 1955. Dr. Carruthers, however, was of the opinion that the bursa was due and caused or superinduced by appellant’s burns of July 28, 1955.

As we read this record the primary and decisive question presented is one of fact, and that is whether there was any substantial evidence to support the findings of the commission. Since the enactment of our Workmen’s Compensation Law, we have consistently held that we do not try compensation cases here ele novo, we are, therefore, not concerned with where the weight of the evidence may lie. When we find any substantial evidence to support the findings of the commission, we must affirm. We said in the recent case of Grimsley, Adm’x v. Manufacturers Furniture Co., 224 Ark. 769, 276 S. W. 2d 64: “Findings of fact by the Workmen’s Compensation Commission are given the same verity as attach to the verdict of a jury and this applies on appeal to the circuit court as well as to the supreme court from the judgment of the circuit court ... On appeal, the Supreme Court must view testimony in its strongest light in favor of the commission’s findings . . . Where the commission acting upon sufficient evidence sustains or rejects an award, such findings will not be disturbed on appeal.”

As indicated, the testimony of Dr. Carruthers and that of Dr. Shuffield is in irreconcilable conflict. It was Dr. Carruthers’ opinion that the bursa which he removed from appellant’s knee was a result of the compensable injury which appellant sustained on July 28, 1955. It appears that Dr. Carruthers first saw and examined appellant on April 30, 1956. On the other hand, Dr. Shnffield, who for more than five months prior to April 30, 1956 had been treating appellant, also examined and discharged appellant on that same day (April 30, 1956). Dr. Shnffield had been treating appellant, as indicated, for more than five months prior to April 30, 1956. His findings and conclusions were before the commission, without objection, in a letter dated May 29, 1956, in which he said: “It is my opinion that any trouble he had on the posterior aspect of his knee, was not related in any way to the injury to his foot. I feel that the injury to his foot has healed sufficiently that he was able to carry on with his regular work as of May 1, 1956. Although he had some metatarsalgia secondary to his burn, there was no injury to his metatarsal from the burn itself. It is my opinion that this patient will have no permanent partial disability as a result of the burn he sustained. ’ ’

The commission found that the bursa was not related to appellant’s injury. Dr. Eushton, in summarizing his treatment of appellant stated: “He came into this office complaining of his feet; and I examined him and told him that he had fallen arches, and I thought that if he would buy him some arch supports, they would give him some relief. However, his fallen arches had nothing to do with the burns he had sustained on his feet; . . .” Dr. Eushton further stated that appellant would be able to return to work October 24, 1955.

We hold that the above testimony of Dr. Shuffield and Dr. Eushton, if believed by the commission (and it evidently was) was substantial and sufficient to sustain the commission’s findings. With reference to the effect of medical testimony which is conflicting, we said in Grimsley, Adm’x v. Manufacturers Furniture Co., supra, “While, as indicated, medical testimony given by two doctors, Dr. J. L. Smith and Dr. Paul Ewing, tended to contradict that of the three doctors above, we have consistently held that in situations, as this, such conflicting testimony presents a fact question to be determined by the commission and we are without authority to reverse its conclusions when supported by substantial testimony . . .”

Accordingly, the judgment is affirmed.