author: George Nose Smith, Justice. John A. Foggeman, Justice.

text:
    Harlan Ray Horn v. Byron Shirley, d/b/a Shirley Trucking Company
    5-4930
    441 S.W. 2d 468
    Opinion Delivered June 2, 1969

      Sexton & Wiggins and Hixson & Douglas for appellant.

      Bethell, Stocks, Callaway & King for appellee.
   George Nose Smith, Justice.

This action for personal injuries was tried before a jury and ended in a verdict for the defendant. At the trial the plaintiff (-on-tended that under Act 161 of 1937, which we will call our Labor Department Act, the measure of the defendant’s duty to provide the plaintiff with a safe place to work exceeded the common-law standard of ordinary care and in effect was that of an insurer. Ark. Stat. Ann. 81-101 through 81-121 (Repl. 1960). The trial court rejected that contention and submitted the case to the jury under AMI instructions which told the jury that at the time of the accident the defendant Shirley and his employee Utley were under a duty to exercise ordinary care for the safety of the plaintiff. it was the trial judge’s belief that the Labor Department Act was not applicable to the case, for the reason that there had been no employer-employee relationship between the plaintiff and the defendant. Whether that lading by the trial court was correct is the principal issue on appeal.

The controlling question being wholly one of law, we need state only the salient facts that emerge from an extensive record. The plaintiff Horn was regularly employed as a driller and oil-field roughneck by Miller Drilling Company. In May of 1967 Miller completed the drilling of an oil well and needed to move its equipment to another location. Miller engaged the defendant Shirley, doing business as Shirley Trucking Company, to handle the move. For the job Shirley supplied a tractor-trailer rig operated by Shirley’s employee, C. H. Utley. Miller instructed two of its employees, Parker and the plaintiff Horn, to help Utley load the equipment.

Two large 10,000-pound motors had to be loaded on the trailer. The tractor had a winch-and-cable attachment that was used to pull the first motor onto the rear half of the trailer. Utley then decided to disconnect the tractor and trailer, thereby letting the front end of the trailer down to the ground, load the second motor onto the bed of the tractor, and then transfer the motor from the tractor bed to the front half of the trailer.

The motors were permanently equipped with steel skids similar to railroad tracks. As the second motor was being winched onto the bed of the tractor one of its skids got caught under the edge of the tractor’s fifth •wheel. At Utley’s suggestion Parker and Horn picked up crowbars and tried to pry the motor away from the-fifth wheel. In some way, assertedly as a result of Utley’s changing the tension on the winch cable, the motor shifted its position and dropped down on the lower end of Horn’s crowbar. That caused the other end of the bar to snap upward and strike Horn’s chin and jaw with great force, inflicting severe and painful injuries.

Horn, as we have said, was employed by Miller, not b3r the defendant Shirley. Horn’s attorney, in view of the proof, did not request an instruction submitting to the juiy the question whether Horn had become Shirley’s employee under the borrowed-servant doctrine. See Bell Transp. Co. v. Morehead, 246 Ark. 170, 437 S.W. 2d 234 (1969); Transport Co. of Texas v. Ark. Fuel Oil Co., 210 Ark. 862, 198 S.W. 2d 175 (1946). Hence the case comes to us with no contention that Horn was acting other than as a regular employee of Miller at the time of the accident.

The pivotal issue of law is a narrow one. The appellant insists that under the Labor Department Act he was entitled to instructions imposing upon Shirle3r an absolute duty to provide Horn with a safe place to work rather than a common-law duty merely to exercise ordinary care to do so. To sustain that contention Horn must succeed in establishing two propositions: First, it must be found that the Labor Department Act imposed the absolute duty that Horn invokes. (For differing views upon that point see Carter v. Frazer Const. Co., 219 F. Supp. 650 [W.D. Ark. 1963], and Crush v. Kaelin, 419 S.W. 2d 142 [Ky. 1967].) Secondly, it must be found that Shirley owed that absolute duty to Horn, even though there was no employer-employee; relationship between them.

We find it unnecessary to discuss tlie first proposition, because in our opinion the trial court was right in holding that the absence of an employer-employee relationship rendered the Labor Department Act inapplicable to the fact situation presented by this litigation.

The Labor Department Act is a comprehensive statute containing 26 sections, most of which have no direct bearing upon this ease. The appellant relies entirely upon sections 1 and 9 (a), which we quote:

Section 1. DEFINITIONS. That when used in this Act, “employer,” includes every person, firm, corporation, partnership, stock association, agent, manager, representative, or foreman, or other person having control or custody of any employment, place of employment, or of any employee. Provided this Act shall not affect any employer engaged exclusively in farming operations. Provided further it shall affect employers employing five persons or over only. Ark. Stat. Ann. § 81-101.
Section 9. EMPLOYEE’S DUTY AS TO SAFETY, (a) Every employer shall furnish employment which shall be safe for the employees therein and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and shall do c*very other thing reasonably necessary to protect the life, health, safety, and welfare of such employees ;.. . Id., § 81-108.

The appellant, in arguing that the Act imposes upon every employer subject to the statute a mandatory duty to insure the safety of persons other than his own employees, relies upon clauses in the quoted sections that refer to “employment” and to “place of employment” and to “employees.” Specifically, Section 1 defines an employer as a person having control or custody of “any employment, place of employment, or of any employee.” Section 9 (a) requires an employer to adopt and use methods and processes reasonably adequate to render “such employment and place of employment” safe. With much ingenuity counsel argue that “employment” and “place of employment” and “employees” must all be treated as mutually exclusive terms, so that each must have been intended by the legislature to include throughout the Act some shade of meaning' not subsumed by the other two. Upon that reasoning counsel insist that the employer’s statutory duty to furnish employment which shall be safe for the employees therein and also to make both the employment and the place of employment safe must be construed to mean that the employer’s duty extends to all employees who are working on the premises, whether they are employed by him or by someone else. Hence, it is said, the defendant Shirley owed the statutory duties to Horn because Horn was an employee, albeit not an employee of Shirley.

The argument being made is so involved and so tenuous that we have really found more difficulty in stating' it than in answering it. We think it sufficient to discuss briefly a few of the considerations that compel us to conclude that counsel’s interpretation of the statute1 goes far beyond the manifest intent of the legislature.

Hirst, when the Act is read as a whole there were sound reasons for the definition of an employer to include a person having control or custody of any employment, place of employment, or employee — all three. The Act is a comprehensive measure having as its primary purpose the creation of a Department of Labor and the enumeration of the Department’s powers and duties. Some sections have to do only with “employment,” such as the duty of the newly created Commissioner of Labor to assist in avoiding lockouts, boycotts, black lists, and discriminations. Section 7 (e). Some sections have to do only with the place of employment, such as the Commissioner’s duty to affix a warning' notice to any machine or equipment found to be dangerous. Section 9 (c). Some sections have to do only with employees, such as the employer’s duty to keep’ a record of the hours and wages of each of his employees. Section 14 (b). Obviously any definition of “employer” that did not refer to employment, place of employment, and employees— all three — might, not have been broad enough to include all employers that were meant to fall within the reach of the statute.

Secondly, there was a similar reason for Section 9 (a) to require employers to render safe both the employment and the place of employment. Neither term includes the other in its entirety in every context. Employment is defined by the Random House Dictionary (1966) as the ‘ ‘ state of being employed;.. . service; ... an occupation by which a person earns a living; work; business.” Those definitions refer essentially to conduct rather than to the physical place of employment. That the lawmakers thought it best to use both terms, for clarity, does not mean that they intended a strained construction by which their language would include something not fairly falling within the ordinary meaning of either term.

Thirdly, “employer” and “employee” are correlative terms. Each implies the existence of the other, just as “parent” implies the existence of a “child,” and “husband” implies the existence of a “wife.” A law that defines the rights and duties of husbands and wives has reference to the obligations of each husband to his own wife, not to the wife of another. Similarly, the duty of an employer to employees clearly means to his own employees and not to those of some other employer, unless the language permits no other conclusion. This precise problem was met by a similar Wisconsin statute, which encompassed not only employees but also “frequenters” of the premises. See Globig v. Greene & Gust Co., 201 F. Supp. 945 (E.D. Wis. 1962). Our statute is markedly dissimilar from that one.

Fourthly, when the Labor Department Act was adopted we had no workmen’s compensation laAv. Hence there was a much greater need for the legislature to provide the Avorking man Avith a cause of action against his own employer for injuries resulting from unsafe conditions than there would be today. We must construe the act in its proper historical setting.

Finally, the Labor Department Act was a penal measure, imposing penalties of fines and imprisonment for violations of its provisions, with each day of violation constituting a separate offense. Section 21. We have held that the Act, being penal, must be strictly construed. Gordon v. Matson, 246 Ark. 533, S.W. 2d (1969). If avc had any doubt about the proper construction of the Act — and avc hatm none — the rule of strict construction would set that doubt at rest.

To this point we have discussed only the appellant’s main argument for reversal. He also contends that there is no substantial evidence to support the jury’s verdict for the defendant. The obstacles in the path of such an argument were discussed in Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665 (1962), and need not be re-examined. Here, under the evidence and the court’s instructions, the jury might have found that the plaintiff failed to prove his charge of negligence in the defendant, that the plaintiff assumed the risk of the danger, or that the plaintiff’s own negligence exceeded that of the defendant. Those matters all turn upon the. preponderance of the evidence. As we observed in the Spink (‘ase, the trial judge may grant a new trial if he finds the verdict, to be against the preponderance of the e\Tidencc. We, however, are bound by the substantial evidence rule. It cannot be said that there is no substantial evidence to support this verdict.

Affirmed.

Fogleman, J., concurs.

John A. Foggeman, Justice.

1 concur in the result reached by the court, but I do not agree with the route by which that .end is reached. Nor do I agree that the instructions requested would make appellee the insurer of appellant’s safety, because each was couched in statutory language requiring “reasonably adequate” methods and processes and other things “reasonably necessary” to protect the employee’s life, health, safety and welfare. See Ark. Stat. Ann. § 81-108 (Repl. 1960). I take a view closely akin to that expressed by the Kentucky Court of Appeals in Crush v. Kaelin, 419 S.W. 2d 142 (1967). In considering a similar statute iu which language is identical with that employed in the pertinent sections of Act 161 of 1937 (Ark. Stat. Ann. § 81-101 through § 81-121), that court held no duties greater than those imposed by the common law were imposed on the employer by the general provisions of their act for safe places of employment, safe methods and practices and reasonable safeguards. That court found the provision for formulation of standards by an administrative body inconsistent with any such purpose. That court recognized the possibility that a specific standard or regida tion once promulgated might be the basis for a greater duty of the master to the servant. Our act contains Section 10 (Ark. Stat. Ann. § 81-109) conferring the power on the Commissioner of Labor to make reasonable rules for the prevention of accidents in every employment or place of employment and for the construction, repair and maintenance of places of employment.

"While I adhere to the views expressed in ray dissenting opinion in Gordon v. Matson, 246 Ark. 533, 439 S.W. 2d 627, when there is an allegation or proof that a specific regulation has been violated, I believe that Ark. Stat. Ann. § 81-108 is merely a. statement of the purposes to l)e accomplished by promulgation and enforcement of the regulations adopted. If the employer’s duty is to be measured by the general language of § 81-108, I can see no useful purpose that was served by authorizing the promulgation of rules and regulations establishing safety standards to be followed by an employer, if his duty is established by the broad general language of the preceding section.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Fred Hershel Carmical v. Elizabeth Ann Carmical
    5-4943
    441 S.W. 2d 103
    Opinion Delivered June 2, 1969

      W. W. Shepherd for appellant.

      Russell & Hurley for appellee.
   George Rose Smith, Justice.

The parties were married in 1946 and separated in 1966. Two years later the appellee brought this suit for a divorce on the ground of personal indignities. By counterclaim the husband also sought a divorce, for desertion. This appeal is from a decree awarding the divorce to the plaintiff and transferring- to her the title to a small dwelling house which the parties ostensibly owned as tenants by the entirety.

The plaintiff, to prove the asserted indignities, testified that her husband was a drunkard, that he drank up every cent he earned, that he contributed nothing to the maintenance of the home, that he threatened to throw7 tier off the place, and that lie frequently embarrassed lier publicly by using vulgar and filthy language toward her in tire presence of her friends. There was sufficient, corroboration of her testimony to satisfy the familiar rule that the corroborating proof may be comparatively slight wdieu there is no indication of collusion.

Much of the plaintiff’s evidence had to do with the. defendant’s alleged drunken conduct. The appellant now insists that the proof was insufficient to establish the plaintiff’s cause of action, because drunkenness, to be a ground for divorce, must be shown to have been habitual and to have continued for at least a year. Ark. Stat. Ann. § 34-1202 (Repl. 1962).

That argument is based upon the mistaken assumption that proof of drunken conduct is pertinent only when the asserted ground for divorce is habitual drunkenness. Such a view7 is too narrow. Drunken conduct may be proved along with other acts to establish indignities rendering the plaintiff’s condition intolerable. By analogy, we have held that false charges of adultery constitute indignities, despite the fact that adultry is itself a ground for divorce. Relaford v. Relaford, 235 Ark. 359 S.W. 2d 801 (1962). In other jurisdictions it lias frequently been held that even though habitual drunkenness is a separate ground for divorce it may also be proved to support charges of cruelty that are interwoven with such intoxicated conduct. Hayes v. Hayes, 5 Cal. Rptr. 509 (1960); Robbins v. Robbins, 257 S.W. 2d 92 (Mo. App. 1953); Annotation, 76 A.L.R. 2d 419, 430 (1961). Since we agree with the chancellor’s finding' that the appellant’s actions justified the appellee in leaving the family home, we need not discuss the appellant’s contention that he should have been awarded the divorce on the ground of willful desertion.

There remains for consideration that part of the decree thal vested title to the dwelling house in the appellee. According to the proof, the house was originally bought in 1966 by these litigants’ daughter and son-in-law, Joyce and Harold Don Gentry. The purchasers were not yet of age; so for their convenience the title was put in the name of Joyce’s father and mother, the Oarmicals. The Oarmicals borrowed the money to make the down payment and executed a mortgage for that debt and the unpaid balance. The Gentrys, however, were the real purchasers and made the monthly payments until they separated in 1967. By agreement with the Gentrys, Mrs. Oarmical then took over the property and began making the monthly payments from her own earnings. At the time of the trial Mrs. Oanuical’s investment in the dwelling, including laxes, wets about ‡1,000. Her husband was obligated on the purchase-money note and mortgage, bnt ho had paid nothing whatever toward the acquisition of the house.

The decree was right. At first the Gentrys wrere the real owners, under the rule that when the grantee advances the purchase price (or obligates himself therefor) as a loan to the true purchaser, a resulting trust arises in favor of the latter, but the grantee can bold the property as security for the loan. Crain v. Keenan, 218 Ark. 375, 236 S.W. 2d 731 (1951). The beneficiary of a resulting trust is the real owner of the property and may transfer his interest. Restatement of Trusts (2d). § 407 (1959). Hence the Gentrys could and did relinquish their interest to Mrs. Oarmical.

The decree found that the appellant should be relieved of liability on the purchase-money mortgage. ITe now complains that this provision will not afford him protection if the mortgagee finds it necessary to enforce the obligation. Of course that is true, but all that the chancellor could do in this case was to adjust the rights of the parties between themselves. If the appellant is required to pay part of the mortgage debt, the decree will protect his right of subrogation against the appellee and against the property. No more can be done without the mortgagee’s consent, the appellant having voluntarily incurred the debt.

Affirmed. Tlie appellee is allowed an additional attorney’s fee of $250 for the services of her attorney in this conrt.


author: Lyle Brown, Justice.

text:
    Ruth Estes v. State of Arkansas
    5-5417
    442 S.W. 2d 221
    Opinion Delivered June 2, 1969
    [Rehearing denied July 14, 1969.]

      Terral, Rawlings, Matthews & Pu/rtle for appellant.

      Joe, Purcell, Atty. Gen. and Don Langston, Ass’t. Atty. Gen. for appellee.
   Lyle Brown, Justice.

Custody of Ruth Estes’ children had been awarded to their paternal grandparents and Mrs. Estes removed them to Puerto Rico without permission of the chancery court handling the custody matter. That action is prohibited by Ark. Stat. Ann. § 41-1121 (Repl. 1964). Mrs. Estes was convicted and sentenced to six months imprisonment. In appealing her conviction she alleges several diverse points of error which will be enumerated after a brief statement of facts.

To tlie union of Don Masner and Ruth Masner (now Estes) were horn two children. In 1959 Don sued for divorce and custody of the children. He was granted a divorce hut the court found the parents unsuitable to have custody of the children and placed them in the care of Mr. and Mrs. W. B. Masner, paternal grandparents. Those proceeding's were in the Independence County Chancery Court. In August 1966, on motion of the mother, the court modified the 1959 custody provision to this effect:

The defendant-petitioner, Ruth Masner Estes, is to he permitted to have the children ... in her custody for a period of two weeks each summer period, the first period to commence August 15, 1966, and end August 29, 1966, the defendant-petitioner to pick up the children from Mr. and Mrs. Bernice Masner, paternal grandparents, who have hitherto been awarded custody of these children, at her own expense, and to return said children on said date at her own expense.

Pursuant to that order Mrs. Estes picked up the children. She first took them to Texas to visit relatives. A few days thereafter the mother and children flew from Dallas to San Juan, Puerto Rico, where the Esteses had resided since 1965. Mrs. Estes did not return the children on August 29 and the following day the present charge, was filed against her.

The children have never been returned to Arkansas and Mrs. Estes testified she had no intention of returning them. She admitted taking the children out of this State. She defended that action on the grounds that (1) she thought all interested parties understood she so intended, and (2) that when she. obtained the children she had no intention of keeping them beyond the two weeks allowed. She testified that she changed her mind thereafter when the children expressed a desire not to return.

One other pertinent fact should be noted because it has a bearing on one of the points in issue. Subsequent to her conviction by jury trial, the court granted a motion to set aside the verdict. At that time a stipulation between counsel for both sides was presented to the court and approved. It was agreed that the trial judge would retry the ease without a jury and on the basis of the record made at the first trial. That stipulation had the effect of eliminating from the court’s consideration the jury verdict and the instructions.

POINT I. It toas error to refuse, to allow appellant to take the depositions of out-of-state witnesses. A motion to take depositions of five witnesses who resided in Puerto Rico was filed in October 1967. That motion was not presented to the court until after the parties announced ready for trial. The presentation of such a motion at a stage in the proceedings when a continuance would result from the granting of the motion was disapproved in Criner v. State, 236 Ark. 220, 365 S.W. 2d 252 (1963).

POINT II. The court erred in refusing to quash the information, the warrant, and in overruling the demurrer to the information. It is first pointed out that the warrant: was never served on appellant. That fact becomes immaterial because appellant admittedly returned from Puerto Rico to Independence County to contest the charges. A complete answer to the assertion is that the “Motion to Quash Bench Warrant” was not filed until after appellant announced ready for trial. Secondly, it is asserted that the Information does not state facts sufficient to allege a crime. The language of the Information is certain as to the title of the prosecution, the name of the court, the county in which the alleged offense was committed, and the name of the defendant. Those are the requirements of the contents of an Indictment or Information. Ark. Stat. Ann. §§ 43-1006, 43-1008 (Repl. 1964); See Geoates v. State, 206 Ark. 654, 177 S.W. 2d 919 (1944). The acts constituíing the offense need not be stated unless the offense cannot l)e otherwise charged. When it is necessary that a defendant acquire additional facts in order to properly defend, lie can request a bill of particulars and the Slate is required to respond.

POINT III. Appellant was arrested during the course of the trial and served ivith a %oarrant for civil contempt issued out of another court, all to her prejudice. A contempt citation had been issued out of the chancery court for failure to return the children as required by court order. Mrs. Estes testified that she was served with that process during the noon recess of the criminal trial. The record is void of any showing of prejudice. Additionally, the allegation is not set forth in the motion for new trial.

POINT TY. Improper evidence ivas admitted and proper evidence was excluded.

(a) Improper evidence. The petition for modification of the divorce decree, heretofore discussed, was introduced by the State over appellant’s general objection. The petition recited excerpts from the original decree which related that neither parent was a proper party to have custody of the children. Appellant argues here that it was error for the jury to be informed that she had been adjudged an improper person to have custody of her children. That same information was contained in the 1959 decree, a copy of which was introduced without objection. Furthermore, the petition for modification was generally admissible because it explained the modified decree which resulted from the filing of the petition. A specific objection was therefore required if appellant desired a deletion. Amos v. State, 209 Ark. 55, 189 S.W. 2d 611 (1945).

(b) Exclusion of proper evidence. In September 1966, the father and the grandfather of the children went to Puerto Pico in an effort to retrieve the children. They were restrained from removing the children by an order issued by the Superior Court of San Juan. The father and the grandfather left and abandoned any effort to resist the mother’s petition in that court. In the case before us the appellant offered a transcript of the proceedings in San Juan and the trial court sustained the State’s objection. The trial court was correct because those proceedings, occurring some time after the alleged offense for which Mrs. Estes was being tried, were immaterial. If Mrs. Estes illegally removed the children from Arkansas in August, a subsequent court procedure in a foreign jurisdiction could have no bearing on her defense.

POINT Y. The defendant was entitled to a directed verdict. Appellant argues that “everyone knew she was taking the children out of Arkansas before she picked them up.” She further states that at the time she obtained the children she intended to return them within the two-weeks period; and that a subsequent decision on her part not to return them would not bring her within the Act. The provisions of § 43-1121, insofar as they pertain to this case, are unambiguorrs. The stattute prohibits the taking of a child, by permission or otherwise, from the person having legal custody of the ward by virtue oP a decree of any chancery court, and removing the child beyond our State without first obtaining the permission of the court which fixed the custody. It cannot even be properly inferred that the court which fixed the custody and subsequently awarded the two-weeks visitation period had any knowledge of Mrs. Estes’ intent to remove the children beyond jurisdictional limits. Additionally, the grandmother who released the children to Mrs. Estes, testified that she was led to believe Mrs. Estes had been authorized by the court to take the. children out of the State, which of course was not true.

POINT YI. It was error to deny appellant’s requested Instructions. Appellant overlooks the fact that tlic jury verdict was set aside and she was convicted by the court sitting as a jury. Consequently the instructions were of no import.

Affirmed.


author: John A. Fogleman, Justice.

text:
    J. L. Clark v. State of Arkansas
    5-5418
    442 S.W. 2d 225
    Opinion Delivered June 2, 1969
    [Rehearing denied July 14, 1969.]

      Bill H. Wahnsley and John Norman Darkey for appellant.

      Joe Bwrcell, Atty. Gen.; Don Langston, Asst. Atty. Gen.; Mike Wilson, Asst. Atty. Gen. for appellee.
   John A. Fogleman, Justice.

Appellant was convicted in tlie Circuit Court of Independence County for tlie calmes of possessing intoxicants in a dry county for purpose of sale and selling intoxicating liquors in a dry county. Since these convictions represented his third conviction of violation of the Intoxicating Liquor Penal Statutes, he was adjudged guilty of a felony and sentenced to one year in the penitentiary. Ark. Stat. Ann. § 48-811.1 (Repl. 1964).

Appellant’s first point for reversal concerns the sufficiency of the evidence to support his conviction. The state’s evidence consisted largely of the testimony of James llaigwood who related, in substance, the following: Arlis Lee approached llaigwood and requested that ho (Lee) be driven to appellant’s house for the purpose of purchasing some whiskey; Haigwood loaned Lee the money and together they drove over to appellant’s house; they parked in the front of the house and Lee got out while Haigwood remained in the truck; Lee walked straight to the house and then returned with two pints of whiskey; Haigwood saw appellant hand Lee the whiskey.

The state introduced several witnesses who testified io appellant's reputation in the community for being a bootlegger, and also introduced the testimony of Deputy Sheriff King concerning appellant’s attempt to get rid of a bottle of whiskey during a raid on his premises three days after the alleged sale to Lee.

Appellant’s evidence was in direct conflict with that of the state. Arlis Lee testified on behalf of appellant and specifically denied that appellant sold him any whiskey. Lee stated that he went with Haigwood and parked in front of appellant’s house, but that he got the whiskey out of his uncle’s pickup which was parked just above appellant’s house. He claimed that the whiskey was his. He said he only walked through appellant’s yard because it was a shorter way to get to the pickup. The testimony of appellant’s wife tended to corroborate Loo’s story as did the testimony of Lonnie Lee, the uncle of Arlis Lee. Under these circumstances a clear question of fact was presented for the jury’s determination.

The credibility of witnesses and the weight to bo given their testimony is entirety within the province of the jury; they are not required to accept the testimony of any witness as time. Bartley v. State, 210 Ark. 1061, 199 S.W. 2d 965. In commenting on a situation similar to that which we have here this court, in Melton v. State, 165 Ark. 448, 264 S.W. 965, said, “The testimony of the witness for the state did not have to be corroborated, and it was for the jury to determine whether the same was overcome by the testimony of the witnesses for- the appellant. Meeks v. State, 161 Ark. 489, 256 S.W. 863. The testimony of Mrs. Waters to the effect that she saw the appellant sell whiskey was sufficient to sustain the verdict.” Wo hold that the evidence was sufficient to sustain the conviction.

During the trial appellee introduced, over appellant’s objection, the testimony of Deputy Sheriff King. He stated that, as ho and several other officers approached appellant’s home to search for additional ■whiskey and to arrest him, they observed appellant toss a bottle of whiskey out of his truck window. The introduction of this testimony, together with the bottle of whiskey which was retrieved, was objected to by appellant on the ground that it was evidence of prior criminal behavior. The admission of this testimony is appellant’s second point for reversal. As a general rule evidence which shows or tends to show acts which constitute another crime wholly independent of, and unconnected with, that for which a person is charged is not admissible unless the evidence is shown to come under one of the exceptions to the rule. Satterfield v. State, 245 Ark. 332, 432 S.W. 2d 472.

Appellant argues that evidence of similar offenses is not admissible unless independently relevant to show intent, provided that intent is a real material element in the offense with which a person is changed. In support of this contention appellant relies on Alford v. State, 223 Ark. 330, 266 S.W. 2d 804. However, Alford did not limit admissibihdy of similar offenses to those situations involving the question of intent; on the contrary the court there said, “We need not take the time to review in detail the cases in which proof of other recent similar offenses is competent under other so-called exceptions to the general rule, as to show motive, Shuffield v. State, 120 Ark. 458, 179 S.W. 650, to rebut the plea of an alibi, Nash v. State, 120 Ark. 157, 179 S.W. 159, to prove the transaction as a whole, Autrey v. State, 113 Ark. 347, 168 S.W. 556 and so forth. The present case centers upon proof offered to show intent; so we turn to representative decisions on that point.” We have long recognized that evidence of illegal possession of intoxicants on prior and subsequent occasions from that charged in the indictment is admissible to shore the character of the business of the accused. Johnson v. State, 177 Ark. 1051, 9 S.W. 2d 233; McMillar v. State, 162 Ark. 45, 257 S.W. 366; Withem v. State, 175 Ark. 453, 299 S.W. 739 (Reversed on other grounds.); Gray v. State, 212 Ark. 1023, 208 S.W. 2d 988; Evans v. State, 177 Ark. 1076, 9 S.W. 2d 320. In a recent case we held that evidence of subsequent criminal acts is admissible for the purpose of showing motive, design, particular criminal intent, habits and practices, or guilty knowledge. Tolbert v. State, 244 Ark. 1067, 428 S.W. 2d 264. There was no error in admitting this evidence.

Appellant argues as an additional point that the court should have instructed the jury to disregard this evidence or in the alternative instructed them that they could consider such evidence only as it related to a common scheme or design. If evidence is admissible for any purpose then the objecting party must ask the court to limit the evidence to the admissible ..purpose or the objection is wholly unavailing. Amos v. State, 209 Ark. 55, 189 S.W. 2d 611; Edens v. State, 235 Ark. 996, 363 S.W. 2d 923. The record fails to reveal any request on behalf of appellant for a limiting instruction.

Appellant’s points 3 and 7 are without merit because of his failure to note his exceptions to the court’s action as required by our rules of criminal procedure. Bivens v. State, 242 Ark. 362, 413 S.W. 2d 653.

Appellant’s fourth point for reversal is his allegation of error in the overruling of his objection to questions to the witness Roberta Clark, his wife, relating to previous appearances as a witness. The following excerpt appears in the transcript on cross-examination by the prosecuting attorney:

Q. Roberta, you have testified in court before, haven’t you?
A. Yes, I have.
BY MR. WALMSLEY:
Object, that is not relevant in any way.
BY THE COURT:
Overruled; go ahead.
BY MR. WALMSLEY:
Note our exceptions.
Q. How many times?
A. I don’t remember.
Q. You mean it is that many?
A. I didn’t say it was, I just said I don’t remember.
Q. 10 times ?
A. No.

Upon repetition of appellant’s objection at this point, this line of questioning was abandoned. We find no prejudiced error in the overruling of appellant’s ohjections to the particular questions asked. A wide latitude is allowed counsel on cross-examination to elicit facts impeaching the credibility of a witness. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W. 2d 795; Carter v. State, 196 Ark. 746, 119 S.W 2d 913. The scope of this examination is largely -within the discretion of the trial court. Lee v. State, 229 Ark. 354, 315 S.W. 2d 916; Bartley v. State, 210 Ark. 1061, 119 S.W. 2d 965; Dawson v. State, 121 Ark. 211, 180 S.W. 761; King v. State, 106 Ark. 160, 152 S.W. 990; Zorub v. Missouri Pacific Railroad Co., 182 Ark. 232, 31 S.W. 2d 421 The exercise of the trial court’s discretion as to the matter to be permitted on cross-examination will not be disturbed on appeal unless that discretion is abused. Bartley v. State, supra; Hightower v. Scholes, 128 Ark. 88, 193 S.W. 257.

It has been held in another jurisdiction that asking a witness how many times ho had been before the court was within the permissible range of cross-examination. State v. Callian, 109 La. 346, 33 Ro. 363. While we might nut go so far as to hold that such an interrogatory was permissible under all circumstances, we are unable to say that the court abused its discretion in this particular. In view of the abandonment of this line of questioning by the prosecuting attorney, we cannot say that there was any prejudice to the. appellant in this case. We will not hold that a trial court abused its discretion in the control of the range of cross-examination when no prejudice is shown, no violation of rights appears and no authority is cited as sustaining the charge of impropriety. Carter v. State, 196 Ark. 746, 119 S.W. 2d 913.

Appellant also contends that the trial court erred in overruling his objection to using the same jury to try him on the felony charge which found him guilty on the misdemeanor charges. We have previously decided this question adversely to appellant in Miller v. State, 239 Ark. 836, 394 S.W. 2d 601.

Appellant argues that he was prejudiced by the reading of the names of the foremen of the juries that liad previously convicted him and the mentioning of more than two prior convictions in the presence of the jury. If there was error, it was harmless due to the fact that appellant received the minimum sentence under the statute.

Appellant’s last point for reversal alleges that the court erred in overruling his objections to the testimony regarding his reputation in the community as a bootlegger. This point is without merit. Arkansas Statutes Annotated § 48-940 (Repl. 1964) specifically provides that such evidence is admissible in cases such as this one. We held this act constitutional in Richardson v. State, 211 Ark. 1019, 204 S.W. 2d 477.

The judgment is affirmed.


author: John A. Fogleman, Justice. J. Fred .Toner, Justice.

text:
    Mavis D. Wilson v. United Auto Workers International Union, et al
    5-4939
    441 S.W. 2d 475
    Opinion Delivered June 2, 1969

      Mc'Math, Leutherman, Woods & Youngdahl mad John P. Sizemore for appellant.

      Smith, Williams, Friday & Bowen by George Pike, Jr, for appellees.
   John A. Fogleman, Justice.

The widow of Harold Wilson, a staff representative of United Auto Workers International Union at the time of his death, asks us to reverse a judgment affirming the denial of death benefits by the Workmen’s Compensation Commission. The commission found that Wilson’s death on August 22, 1967, did not arise out of and during the course of his employment. As a point for reversal, appellant argues that the death of Wilson did so arise and that there is no substantial evidence to the contrary. As we understand the brief and argument on behalf of appellant, she contends that the evidence shows that Wilson’s death arose out of and in the course of his employment as a matter of law. We do not agree.

The material testimony was as follows:

Wilson, a representative of United Automobile Workers, lived in North Little Rock. He worked under the supervision of the Little Rock office of the UAW, and his supervisor was Herbert Bingaman, Area Director. He had been going to Pocahontas off and on over a three-montli period, during which he also spent some time in his business activities in Forrest City and Marianna. He went to Pocahontas on Monday, August 21, on the organizing mission that he had been conducting there. He was due to return to Little Rock on the following Saturday. He met a fellow organizer, Donald W. Slavens, at the Hillcrest Motel in Pocahontas where Wilson registered and obtained an air-conditioned room for the period of his stay there. Wilson was in charge of the campaign. He arrived at the motel about two o’clock and called on Slavens. The two discussed the program briefly and then went to the Shoe Workers’ Hall to discuss plans. There they met with a committee around 2:00 p.m. and continued their discussion of plans until about 8:00 p.m. These parties separated for the evening meal, but later Wilson and Slavens met with two of the officers from the Shoe Workers’ Lodge who were to help with the campaign. Wilson had his organizing-material, files and papers in his room at the motel, along with the pamphlets and handbills and material normally used in this sort of campaign. The group was still engaged in this conference when Slavens asked to be excused about a quarter of eleven. Slavens and Wilson met between 7:30 and 8:00 a.m. on the following day and had breakfast together, after which they picked up material at the motel and went to the Shoe Workers’ Hall, each in liis own automobile. There they prepared the hall for a meeting1 scheduled at 2:00 p.m. These preparations consisted of sweeping, moving tables and chairs, obtaining and icing soft drinks, and arranging for attendance prizes. They left the hall around 11:15, each going his separate way. "Wilson advised Slavens that he made a practice of not eating lunch at noon. Slavens ate lunch and returned to the hall about 1:00 p.m. and availed Wilson’s arrival. Before the time scheduled Tor the meeting, Slavens was advised by an undertaker, who was also county coroner, that Wilson had suffered an accident. Slavens immediately went to the motel. He learned that Wilson had been found in the swimming pool at the motel clad in swimming trunks and had been taken to the funeral parlor. The coroner, the chief of police and a doctor examined Wilson’s body in Slavens’ presence. The only signs of injuries were bruises about Wilson's face and forehead. Slavens was advised that these were caused by attempted artificial respiration at the swimming pool.

Slavens stated that, as he recalled, the temperature was a moderate 82 or 85 and that the day was not a particularly humid one. The testimony indicates that Wilson was in good health. The only evidence of the cause of his death -was the certificate made by the coroner who stated that Wilson apparently drowned accidentally while swimming in the pool at Hillcrest Motel. The cause of death is not seriously contested.

Wilson was paid an annual salary and a per diem when traveling. He was reimbursed for motel, telephone and other expenses. He was on call 24 hours per day, having no set hours of work. He was on Ms own initiative as to when he worked to accomplish Ms assignment. He had full authority to interrupt his work day for personal reasons hut remained on call even during these interruptions. It was normal for those holding positions as staff representatives to work out of the hotel or motel where they were staying during these campaigns. According to his supervisor, even though Wilson would be subject to call during self-designated periods of rest, relaxation or exercise, he was not required to leave word where he could be reached during these periods or to account to anyone for his time or whereabouts. He was expected to leave word at the home office as to where he could be reached. Wilson had advised this office that he would be at the Hillcresl. Motel during his stay in Pocahontas.

HAW policy encouraged their employees to exercise and remaiu physically fit. They required annual physical examinations of these employees. They provided a $25 per year allowance for their representatives to enroll in YMOA programs. There is no evidence that Wilson ever took advantage oP this allowance. Wilson had told his supervisor that swimming was one of his forms of relaxation and exercise. Other than (Ins In1 had no knowledge of Wilson’s practice of swimming at motels although he knew that Wilson spent a lot of time at motels. Bingaman stated that the Hillcrest Motel was the headquarters of both Wilson and tShivons during this campaign. Bingaman also testified that he had no objection to the usual practice of a staff member swimming in a motel pool when in operation, if the member enjoyed that type of recreation. The physical fitness program was voluntary, and some took advantage of it and some did not.

Appellant testified that she and her husband swam a lot when they stayed in a motel. She said he was never at home long enough to swim either in the pool or lake in the subdivision in which they lived. There was no reason for anyone to have called Wilson between 11:00 a.m. and 2:00 p.m. on the date of his death, although there was no reason to say with assurance that no one would call him. It was stipulated that Wilson was in the swimming pool alone and that no lifeguard was provided at the pool.

"We find that there was a question of fact as to whether the death of Wilson arose out of and in the course of his employment and find substantial evidence to support the commission’s finding that it did not. In its findings the commission stated:

“Tim Commission concludes from all of the evidence that deceased’s death did not arise out of and during the course of his employment. The Commission is unable to say what caused deceased’s death. There is a lack of evidence to establish a causal connection between deceased going swimming, if lie did, and his employment. ' Deceased’s employment did not require him to go to the swimming pool and Hiere is no evidence that he was performing any service for his employer by taking off from his work activities in the middle of the .day to go sun bathing or swimming. He was engaged in an activity of his own choosing and it was not one that bore a causal connection with his employment.”

In considering this case, it is necessary that we keep in mind basic fundamentals concerning review of workmen’s compensation cases. The burden was on the claimant to show that the injury arose in the course of the employment and grew out of or resulted from the employment. American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41. The findings of the Workmen’s Compensation Commission have the same binding force, effect and verity as the verdict of a jury and are treated in this court in the same manner as a jury verdict. Kelley v. Southern Pulpwood Co., 239 Ark. 1074, 396 S.W. 2d 305; American Casualty Company v. Jones, 224 Ark. 731, 276 S.W. 2d 41. In doing so, we must accept that view of the facts which is the most favorable to the commission’s findings. Albert Pike Hotel v. Trapner, 240 Ark. 958, 403 S.W. 2d 73; Burrow Construction Co. v. Langley, 238 Ark. 992, 386 S.W. 2d 484; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W. 2d 113. Wo must also keep in mind that the commission must determine the extent to which credit is given to testimony, even when il is undisputed. Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W. 2d 468; American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41; Meyer v. Seismograph Service Corporation, 209 Ark. 168, 189 S.W. 2d 794. When we consider the findings of the commission in the same manner as we would a jury verdict on the question involved here, we must sustain the commission’s findings.

Even though there is no conflict in direct evidence as to facts material to a determination whether an employee met death while in the course of his employment, the Workmen’s Compensation Commission has a right to consider all circumstances and proven facts and to draw all reasonable inferences deducible therefrom. United Steel Workers v. Walden, 228 Ark. 1024, 311 S.W. 2d 787. The questions posed in this case are the same, that confronted the court in Woodmansee v. Frank Lyon Co., 223 Ark. 222, 265 S.W. 2d 521. They are: “Do'the facts and circumstances of this case show, as a matter of law, that appellant's injury arose out of and in the course of his employment? Or, to the same effect, the question may be more specifically stated: Do the facts and circumstances shown by the record reveal a lack of substantial evidence to support the commission’s finding that appellant’» injury did not arise out of and in the course of his employment?” There we answered both questions in the negative, as we do here. In the opinion in that case it was carefully pointed out that the commission, in applying undisputed facts to the governing rules, must use some degree of discretion and judgment in this kind of a case. We quoted with approval from Miller v. Keystone Appliances, 133 Pa. Super. 354, 2 A. 2d 508. That court said:

“ ‘Whether deceased was in the course of hi? employment when he was iujured is a question of law. * * “ But in determining that question we must bear in mind the liberal construction that this term lias received in tlie courts, and the exclusive function of the compensation authorities to find facts, whether from direct or circumstantial evidence, and the inferences therefrom.’ ”

This case hears a great similarity to the Woodmansee case in that here, as there, portions of the testimony could be interpreted as indicating compensability while other portions, and in some instances the same testimony, can be interpreted as indicating noncompensability.

The rules governing activities commonly referred to as recreational are most succinctly stated in Larson’s text on Workmen’s Compensation Laws, Yol. 1,§ 22, page 349, an authority frequently cited and relied upon by this court. The rule is stated thus:

“Recreational or social activities are within the course of employment when
(1) They occur on the premises during a lunch or recreational period as a regular incident of the employment; or
(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life. ’ ’

Bach of the three alternative tests stated by Professor Larson is quoted in the opinion in the Woodmansee case, with approval, where guideposts for determining compensability of a claim such as this were established. In view of the fact that the evidence would not justify any inference that the employer in this case would derive any benefit from Wilson’s swimming activities other than morale and efficiency benefits, we find that the third test was not met. In this respect, the comments of Professor Larson in Vol. 1, § 22.30, page 375, are pertinent:

“ ‘ Controversjr is encountered also when 1ho benefit asserted is the intangible value of increased worker efficiency and morale. Basically, the trouble with this argument is not that such benefits do not result, but that they result from eveiy game the employee plays whether connected with his work or not. In this respect, the argument is reminiscent of the same view sometimes heard in connection with the personal comfort cases: eating, resting, and the like do indeed improve the efficiency of the employee, but this is equally true (and even more true) of the sleeping and eating which he does at home. And so, just as in the sleeping and eating cases some arbitrary time and space limitations must circumscribe the area within which the “benefit” establishes work-connection, the recreation cases must submit to some similar limitation, since otherwise there is no stopping point which can be defined short of complete coverage of all the employee’s refreshing social and recreational activities. It can be taken as the distinctly majority view that these morale and efficiency benefits are not alone enough to bring recreation within the course of employment.’ ” (Emphasis added.)

Certainly it cannot be said that the commission was unjustified in drawing the inference that the IT AW received no other benefit from the activity in which Wilson was engaged at the time of his deaih.

It could not be said that the employer expressly or impliedly required Wilson’s swimming. There was nothing to indicate that Wilson, at this time, was engaged in any activity whatever on behalf of his employer. Even though he was expected to entertain and solicit employees of the company whom lie was attempting to organize for his employer, there is no evidence whatever that he saw any of these on the day of his death, much less dining' the time that he was in and around the motel after leaving the union hall. Clearly, the evidence did not make YATlson’s swimming a part of his services. Thus the second test was not met.

Appellant’s strongest arguments for compensability must he tested by the first alternative stated by Professor Larson. She contends: that the entire premises of the Hillcrest Motel were the employer’s premises under the circumstances here; that, since AAllson was subject to call at any time and place, the swimming pool constituted a part of those premises, as long' as he was in Pocahontas on the mission assigned to him; that his swimming' was in compliance with company policy encouraging physical fitness; that Wilson’s death occurred around noon after lie had done work in preparation for an afternoon meeting but before the meeting took place; that his recreational activity was accepted and normal.

AYliile it might have been reasonable for the commission to draw the inference from these circumstances that AYilson’s death occurred on company premises during a lunch or recreational period and that his swimming was a regular incident of the employment, we cannot say that it was not reasonable or proper for the AATorkmon’s Compensation Commission to draw the opposite inferences, as it did. As we see it, the fact finder made a permissible finding on a close question of fact by resolving the inferences adversely to the claimant’s contentious. What we said in Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487, is appropriate here:

“Perhaps the trial court fell into error by reason of its conclusion that statutory law requires that testimony must always he given a liberal construction in favor of the claimant. It is true that it is the duty of the Workmen’s Compensation Commission to draw every legitimate inference possible in favor of a claimant and to give him the benefit of the doubt in factual situations. (Citations omitted.) But it is not the province or duty of either the circuit court or this court to make a de novo application of this rule on review. Both courts are required to view the evidence in the light most favorable to the findings of the Commission and to give the testimony its strongest probative force in favor of the action of the full commission. (Citations omitted.) The question is not whether the testimony would have supported a finding contrary to the one made, but whether it supports the finding which was made.”

Appellant cites and relies upon numerous eases from other jurisdictions, (the vast majority of which sustained commission findings of compensability) some of which might have persuasive value were it not for the fact that the Arkansas guicleposts for compensability had been so definitely established in the Woodmansee case. None of the Arkansas cases relied upon by appellant have to do with activities that might be called recreational. Some of those cases have to do with activities of an employee which were not involved in precisely what he was hired to do by his employer. Many of them are cases in which a finding by the Workmen’s Compensation Commission that the death arose out of and in the course of employment was affirmed. Sec. Arkansas Power and Light Co. v. Cox, 229 Ark. 20, 313 S.W. 2d 91; Williams v. Gifford-Hill and Co., 227 Ark. 340, 298 S.W. 2d 323; American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41; Blankinship Logging Co. v. Brown, 212 Ark. 871, 208 S.W. 2d 778, Lundell v. Walker, 204 Ark. 871, 165 S.W. 2d 600.

Other cases have to do with acts of personal ministration, which are universally recognized as incidents of the employment and as such protected as injuries on tlio actual employment, so long as they are only slight deviations, and are done with the consent or acquiescence of the employer. Tinsman Mfg. Co. v. Sparks, 211 Ark. 554, 201 S.W. 2d 573; Williams v. Gifford-Hill and Co., supra. Others recognize exceptions to the “going and coming rule,” where tlie employer furnishes the method of transportation, or when the employee is injured at a place so close to the employer’s premises as to be considered a part thereof, or when the employee has a duty to perform for the employer while en route home or under the traveling salesman rule, where the travels of the salesman are within the course of his employment from the time he leaves home until he returns, for the reason that the traveling itself is a large part of the job. Hunter v. Summerville, 205 Ark. 463, 169 S.W. 2d 579; Tinsman Mfg. Co. v. Sparks, supra; Bales v. Service Club, 208 Ark. 692, 187 S.W. 2d 321; Owens v. Southeast Arkansas Transportation Co., 216 Ark. 950, 228 S.W. 2d 646; Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S.W. 2d 637.

The decision in the case of Fine Nest Trailer Colony v. Reep, 235 Ark. 411, 360 S.W. 2d 189, is also distinguishable. There the salesman’s death did not occur during any period of recreational activities, but from activities of the salesman in preparation of a meal in a house trailer lie had endeavored successfully to sell to a prospective customer who accompanied him to the house trailer which was located on a tract of land occupied by. the salesman. The negotiations were over an extended period, and the steak which the salesman was preparing to eat had been purchased while he and the customer were en route to the trailer. The sale was concluded about 8:30 p.m., and the salesman’s invitation to the customer to stay and eat with him had been declined. It was pointed out in that opinion, that it was necessary that the salesman bring the. house trailer to his employer’s place of business the next morning in order to complete the sale and that he was driving a company truck equipped to tow house trailers. In that case the court clearly stated that if a reasonable inference had been dedueible from the evidence that the salesman’s death did not grow out of and in the course of his employment, the decision of the commission denying compensation must have been affirmed. The court found that the only reasonable inference to be drawn was that the death, under the circumstances, grew out of and in the course of the employment. We do not consider that to be the case here.

The judgment of the circuit court is affirmed.

George Rose Smith, Jones, and Holt, JJ., dissent.

J. Fred .Toner, Justice.

I do not agree with the majority opinion in this ease. The known facts are not in controversy. There is no serious contention that Mr. Wilson’s death was not the result of an accident within the meaning of the Workmen’s Compensation Act, and there is no question, in my opinion, that it occurred within the course of his employment. Had Mr. Wilson died as a result of slipping in the shower at the motel or by being struck by an automobile while crossing the street to a cafe for lunch, the compensation coverage under the other facts in this case, including the nature of the duties of his employment, would not be questioned.

The commission seems to have found that the accident did not grow out of, or occur within, the course of the employment because Mr. Wilson had stepped out of, or deviated from, the course of his employment and was engaged in recreational activity for his own personal pleasure and benefit when his death occurred. The majority finds substantial evidence to support this finding, but I do not.

I do not consider this a recreational injury case at all under the facts in the record. Mr. Wilson did not go to the municipal swimming pool for an hour or so of recreation and to get away from it all, neither was he on an outing in quest of recreation. The record does not reveal how late Mr. Wilson worked on the night before his death, but Mr. Wilson’s associate had gone to bed üred and worn out at “a quarter till eleven” the night before and left Mr. Wilson still working. Air. Wilson was up before 7:30 on the day of his death and had worked that morning at a Union Hall preparing it for a 3:00 p.m. meeting. Rather than take time out for lunch on the day of his death, instead of stepping outside the course of his employment for recreational purposes, Mr. Wilson stepped outside his motel room for a clip in the motel pool before going to the afternoon meeting. What was Mr. Wilson’s state of mind in selecting the pool rather than the shower, if one was available, is not in the record, but I do not consider the difference of any importance. Whether Air. Wilson felt that he was too strained and tense to face the organizational work in the afternoon and was attempting to relax before attending {he scheduled meeting will probably never be known. But in my opinion a motel room door between the shower and the motel pool is too narrow a dividing line between course of employment and recreation for personal pleasure, and certainly I am of the opinion that the claimant widow was entitled to the benefit of any doubt.

Ii is much more logical to me, under the facts of this case, that Mr. Wilson was attempting to freshen up and relax in preparation for his afternoon meeting rather than foregoing his lunch for a swim in' a motel pool for exercise and personal pleasure. Tt seems to me that to conclude otherwise would require an assumption that Mr. 'Wilson preferred the pleasure of swimming to the necessity of eating.

It is my opinion that Air. Wilson was within the course of his employment when he returned to his motel room following his work at the Union Hall in preparation for the afternoon meeting, and it. is my further opinion that he did not abandon, or deviate from the course of his employment, when he stepped across the threshold of his motel room and entered the swimming pool which the motel had provided for the use of its guests.

I ■would reverse.

I am authorized to state that George Rose Smith and Holt, JJ., join in this dissent.


author: J. Pred Jones, Justice. John A. Fogleman, Justice.

text:
    E. A. Garrison v. Harold J. Williams, Jr., et al
    5-4937
    442 S.W. 2d 231
    Opinion Delivered June 2, 1969
    [Rehearing denied July 14, 1969.]

      Coder ill, Laser, McOehee, tfharp & Bosioell for appellant.

      j\ld\Ialh, Leather-man, Woods & Y ovngdahl for appellees.
   J. Pred Jones, Justice.

This is an appeal by JG. A. Garrison from an order overruling liis motion for judgment notwithstanding a jury verdict rendered against him in the Pulaski County Circuit. Court, Second Division.

On June 21, 1965, Mr. Garrison entrusted his 1965 Thunderbird automobile to his minor son, Gary, then fifteen years of age, for the purpose of going to a picture show at the. Park Theatre in North Little Rock. Gary’s young friend, George Baugher ITT, also fifteen years of age, had been with Gary all day and was with him when the automobile was entrusted to Gary. The two boys had planned the trip to the theatre and knew that Pamela "Williams, young Baugher’s fourteen year old girl friend, would be at the theatre with a group of girls who had planned a bunking party at one of their homes following the show. Upon arrival at the theatre young Baugher immediately located Pamela sitting among her friends. He obtained the automobile keys from young Garrison and took Pamela for a ride in Mr. Garrison’s Thunderbird automobile. There is some conflict in the testimony at this point, but in any event when young Baugher agreed to tell that he had stolen the automobile in the event of an accident or inquiry by the police, young Garrison surrendered the possession of the ignition keys to young Baugher and Pamela. Pamela says that she thought they wore going to just sit in the automobile and talk Avhile listening to the radio,' but that 3roung Bauglier attempted to drive the automobile, lost control of it about two blocks from the theatre, and crashed into a concrete wall. The automobile was demolished and Pamela sustained serious injuries.

Mi'. Williams filed suit in his own right for medical expenses and for Pamela for her personal injuries against Mr. Garrison and young Baugher. The complaint alleged facts constituting negligent entrustment on the part of Mr. Garrison, and willful and wanton negligence in the operation of the automobile on the part of young Baugher. The complaint alleged damages as a proximate result of the joint and concurring negligence of Mr. Garrison and young Baugher. Both Mr. Garrison and 3roung Baugher answered by general denial. A jury trial resulted in a verdict against Mr. Garrison in favor of Pamela Williams for $5,500, and in favor of Mr. Williams for medical expenses in the amount of $1,-858.15. The jury found for George F. Baugher ITT on the complaint against him and judgment was entered accordingly.

On appeal to this court Mr. Garrison narrows the issues within the point he relies upon for reversal. He states the point as follows:

“The trial court erred in overruling appellant’s motion for judgment notwithstanding flic verdict.”

Tn narrowing the issues rvithin the point, appellant Garrison states:

“The sole question presented by this appeal is whether or not in a suit based upon the theory of negligence entrustment it is permissible for a jury to exonerate the driver of the borrowed automobile but at the same time find that the owner of the entrusted automobile is liable for plaintiff’s damages. It is appellant’s position that an examination of the relevant authorities clearly shows that in cases of this nature in order for the owner to be held liable it is a condition precedent that the driver of the borrowed vehicle must be found to have been negligent and liable to the injured party.”

The appellant cites, and seems to rely heavily on, our 1937 decision in the case of Chaney v. Duncan, 194 Ark. 1076, 110 S.W. 2d 21, wherein we said, as quoted by the appellant:

“An automobile is a machino that is capable of doing great damage if not carefully handled, and for this reason the owner must use care in allowing others to assume control over it. If he intrusts it to a child of such tender years that the probable consequence is that he will injure others in the operation of the car, or if the person permitted 1o operate the car is known to be incompetent and incapable of properly running it, although not a child, the owner will be held accountable for tlio damage done, because his negligence in entrusting the ear to an incompetent person is deemed to he the proximate cause of the damage. In such a case of ■mere permissive use, the liability of the owner would-rest, not alone upon the fad of ownership, but upon the combined negligence of the owner in intrusting the machine to an incompetent driver, and of the. driver in its operation.” (Appellant’s emphasis.)

In the Chaney case we also said:

“If Chaney was on a mission for his father, or was acting as the agent or servant of Ms father in driving the truck, his father would, of course, be liable for liis negligence in operating the truck. But, regardless of whether he ivas his father’s agent or on a mission, for him, if the father, knowing his habit of recklessness and incompetency because, of drunkenness, permitted the. son to drive the truck, and any injury occurred as a result of the son’s negligence, the father ■would be liable.” (Our emphasis added.)

In the Chaney case we were talking about a common law liability which has never been repealed by statute. Additional liability has been added b3^ statute, however, where the entrust.ee is a minor child or ward who is incompetent under the statute to drive an automobile.

Arkansas Statutes Annotated § 75-842 (Repl. 1957) provides as follows:

“No person shall cause or knowingly permit his child or ward under the age of eighteen (18) years to drive a motor vehicle upon any highway when such minor is not authorized hereunder or in violation of any of the provisions of this act.”

And Ark. Stat. Ann. § 75-343 (Repl. 1957) provides:

“No person shall authorize or knowingty permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized hereunder or in violation of amr of the provisions of this act.”

By Act 495 of 1961, Ark. Stat. Ann. § 75-315 (Supp. 1967), the legislature authorized an instruction permit or driver’s license for a child under 38 years of age upon the application of parents or responsible person (in the absence of parents) who will assume the responsibility imposed under the act. Subsections (c) and (d) of § 75-315 provide as follows:

“If any person who is required or authorized lw Subsection (a) of this Section to sign and verify the application of a minor in the manner therein provided, shall cause or knowingly cause or permit his child or ward or employee under the age of eighteen (18) years to drive a motor vehicle upon any highway, then any negligence or wilful misconduct of said minor shall be imputed to such person or persons and such person or persons shall be jointly and severally liable with such minor for any damages caused by such negligence or wilful misconduct. The provisions of this Subsection shall apply regardless of the fact that a driver’s license may or may not have been issued to said minor. For purposes of this Act, a minor is hereby defined to be any person who has not attained the age of eighteen (18) years.
(d) The provisions of this Section shall apply in all civil actions, including but not limited to both actions on behalf of any actions against the person or persons required or authorized by Subsection (a) of this Section to sign the application in the manner therein provided.”

Thus it is seen that in addition to the common law liability, as expressed in Chaney v. Duncan, supra, there is additional vicarious liability imposed by statute upon those persons who come within the statute and violate its provisions.

There is no question that the appellant violated the statute. Tie admits that he entrusted the automobile to his fifteen year old son, Gary, and had done so before. He knew that young Baugher was with Gary when the entrustment was made and that they planned to use the automobile in going to a picture show theatre together. But, tlie appellant simply contends that the jury finding against him is inconsistent with the jury finding for the driver of his automobile in the same verdict and that a judgment entered thereon cannot stand.

This case was not submitted to the jury on interrogatories apportioning negligence as between the parties and the verdict was general in nature. Section 75-31.5 (c) and (d), supra, impose vicarious liability on the parent who is required to sign the application for his minor child’s driver’s license whether lie does so or not. Neither the appellant nor Baugher affirmatively alleged contributory negligence or assumption of risk in their answers to the complaint, and neither of them actually pleaded the guest statute in avoidance of liability. It seems admitted, however, that the appellee was the guest of young Baugher in appellant’s automobile.

The court’s instructions under which the jury rendered its verdict- are not abstracted by the appellant, but at the request of the appellee the trial court gave to the jury AMI instruction 203 as the court’s instruction No. 5, as follows:

“Harold J. Williams and Pamela Williams claim damages from E. A. Garrison and have the burden of proving each of four essential propositions :
First, that they have sustained damages;
Secondly, that E. A. Garrison was negligent in entrusting his automobile to his son, Gary Garrison ;
Third, that George A. Baugher III the driver of the automobile, was guilty of operating the automobile wilfully and wantonly in disregard of the rights of others.
Fourth, that the negligence of E. A. Garrison and the operation of the automobile wilfully and wantonly in disregard of the rights of others by George A. Baugher III were proximate causes of plaintiffs damages.
If you find from the evidence in this ease that each of these propositions has been proved, then your verdict should be for the plaintiffs against E. A. Garrison; luit if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for E. A. Garrison.”

The court gave as its instruction No. G, AMI instruction 203, at appellees’ request, as follows:

“Harold J. Williams and Pamela Williams claim damages from George Baugher III and have the burden of proving each of three essential propositions :
First, that they have sustained damages:
Second, that George A. Baugher III was guilty of operating the automobile wilfully and wantonly in disregard of the rights of others;
And third, that such operation of the automobile wilfully and wantonly in disregard of the rights of others was a proximate canse of plaintiffs’ damages.
If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for the plaintiffs against George A. Baugher III; but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for George. A. Baugher Til.”

The record contains only one instruction requested by the defendant Baugher, and none at all requested by the appellant. Baugher’s requested instruction is designated court’s instruction No. 15A, which is AMI 612, and is as follows:

“The defendant George A. Baugher III contends that Pamela Williams assumed the risk of her own injuries. To establish that defense George A. Bauglier III lias the burden of proving each of the following propositions:
First: That a dangerous situation existed which was inconsistent with the safety of Pamela Williams.
iSecond: That Pamela AVilliams knew the dangerous situation existed and realized the risk of injury from it.
Third: That Pamela Williams voluntarily exposed herself to the dangerous situation which proximately caused her claimed injuries.
If you find that all of those propositions have been proved by a preponderance of the evidence, then your verdict should be for George A. Bauglier III. If, on the other hand, you find that any one of these propositions has not been proved by a preponderance of the evidence, the defense of assumption of risk on the part of George A. Baugher III would fail.”

The trial court, at appellees’ request, gave its instructions Nos. 10 and 11, AMT 501 and 502, as follows:

“The law frequently uses the expression ‘proximate cause,’ with which you may not bo familiar. When I use the expression ‘proximate cause,’ I mean a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.
This does uot mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.
When the acts or omissions of two or more persons work together as proximate causes of damage to another, each of those persons may be found to be liable. This is true regardless of the relative degree of fault between them.”

The trial court also gave AMI 609 and 601 as the court’s instructions Nos. 14 and 15, at the request of the appellees, as follows:

“11 is the duty of the owner of a motor vehicle to use ordinary care not to entrust it to a person who he knows or reasonably should know might permit it to be driven by an incompetent driver.
There was in force in the State of Arkansas at the time of the occurrence a statute which provided that no person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under the statutes of the .State of Arkansas. (Ark. Stat. Ann. $ 75-343 [Repl. Vol. 1957])
A violation of this statute, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.”

The appellant does not complain of the instructions on this appeal, but simply contends that the appellant could not be liable until the jury first found young Baugher to be liable and appellant argues that the jury did not even find that young Baugher was negligent. Wc do not share appellant’s view that the jury, by its general verdict, found that young Baugher was not negligent.

Buder the court’s instruction No. 5 it was necessary for the jury to find that Baugher was guilty of operating the automobile willfully and wantonly in disregard for the rights of others in the actual operation of the automobile before the jury could find against the appellant. How then, inquires the appellant, could the jury find for the appellees against the appellant and not against .Baugher under the instructions of the trial court. The answer lies in the court’s instruction No. 15A, supra, requested by Baugher and given as to him, on the assumption of risk. The appellant requested no such instruction and no such instruction ivas given as to the appellant.

The jury could have found, and apparently from its verdict it did find, that although young Baugher was guilty of willful and wanton negligence, the appellee assumed the risk of riding with him and thereby waived her' right to recovery against him. If such was the finding of the jury, then the question is whether the appellee’s assumption of risk as to Baugher’s driving inures to the benefit of appellant and protects him against liability for his own separate negligence in placing the automobile in the possession and exclusive control of his fifteen year old son in violation of the statute. Although Ark. Stat. Ann. § 75-315 (c) and (d), supra, imputes the negligence or willful misconduct of a minor in possession of an automobile to the parent owner who places the minor in possession, the statute does not transfer to the owner, as a bar against his own negligence, all of the defenses the driver of such automobile may have against lawsuits for injuries to third parties.

As to the proximate cause and causal connection between the negligent operation of the automobile by young' Baugher and the negligence of the appellant in entrusting the automobile to his fifteen year old son, it has been uniformly held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence and that it ought to have been foreseen in the light of the attending circumstances. Meeks v. Graysonia, Nashville & Ashdown R. Co., 168 Ark. 966, 272 S.W. 360; Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S.W. 647, 18 L.R.A.N.S. 905; St. L. & A. F. R. Co. v. Whayne, 104 Ark. 506, 149 S.W. 333; St. L. Kennett & A. E. Rd. Co. v. Fultz, 91 Ark. 260, 120 S.W. 984; Hays v. Williams, 115 Ark. 406, 171 S.W. 882; and Bona v. Thomas Auto Co., 137 Ark. 217, 208 S.W. 306.

A shod excerpt from the appellee Pamela’s testimony is somewhat revealing on this point. She testified that Gary had let Harold King, Claudia Muller, Sherry Odom and others drive the car and then testified: “Gary was the only one who had a car and he had it every Sunday or every other Sunday and we would all sit in the car and talk. . .”

“ Q. ... "When did you and George decide to go outside?
A. In the theatre we decided to go outside and get in the car and talk and Gary handed me the keys and I thought well, a ’65 Thunderbird he’d keep it locked, and I just thought that was what it was for. And we were sitting in the car and he put the keys in the ignition and I thought we were going to listen to the radio and he started the car and I had seen him drive a Volkswagen before and so I just took it for granted that he could drive and then when he started the car up, it was power brakes and power steering, and there’s a difference in driving a Volkswagen and when he applied the brakes to stop at a stop sign he hit them real hard and it killed the car and it started rolling, almost hit a tree then and that’s when I decided I wanted to get out of the car.
Q. Then what happened?
A. Well, it was raining and tlie streets were real slick and when he went to turn the curve it — he turned the wheel too far and it started fish tailing and we started going into the wall and that’s when I screamed.”

We conclude that the jury could have found that the appellant should have foreseen the natural and probable consequence of his negligence under the attending circumstances in this case.

The Arkansas guest statute, Ark. Stat. Ann. § 75-913 (Repl. 1957) provides as follows:

“No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was wilfully and wantonly operated in disregard of the rights of others.”

The Kansas case of Bisoni v. Carlson, 237 P. 2d 404, was very much like the case here, on the principal points involved, and under similar statutory provisions. In that case an administrator brought suit for the wrongful death of a sixteen year old youth named Bisoni, against Clayton D. Carlson and his father, A. J. Carlson. A demurrer was sustained to the complaint by the trial court. It was alleged in the complaint that the decedent, Bisoni, and several other boys, were invited by young Carlson to take a ride in a 1933 Ford automobile owned by his father, A. J. Carlson, the automobile having defective steering apparatus and defective brakes. The complaint then alleged that young Carlson drove the automobile in such manner as to constitute willful and wanton negligence and as a result he lost control of the automobile causing Bisoni to suffer the injuries'from which he died. The complaint alleged that A. J. Carlson knew, or had reasonable cause to know, of his son’s negligence and careless disposition, and that he negligently allowed young Carlson to drive and operate the automobile. The counsel for appellant argued that the complain! was ample, if established, to hold A. J. Carlson liable either under the rules of the common law or under the statute. Counsel for appellee admitted that if it were not for the guest statute, the complaint stated a cause of action against A. J. Carlson, but he contended that unless the plaintiff, under the allegations of the complaint, was entitled to recover against the defendant driver, Clayton I). Carlson, under the guest statute, he would not bo able to recover from either of the defendants. The statute relied upon by the appellant-read as follows:

“Every owner of a motor vehicle causing or knowhigly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.”

In reversing the trial court, the appellate court said:

“Statutes of this kind extend the common law rule of liability of the owner. They have been sustained as a valid exercise of the police power and have been applied in harmony with their terms to the facts alleged or established. The negligence of A. ./. Carlson occurred when he permitted his son, Clayton, to use the car on the highways, although the amount of his liability would be measured, by the exlent of the damages resulting from the negligence of Clayton in drwing the car. (Emphasis supplied.) The statute as applied here makes A.. J. Carlson and Clav!on c jointly and severally liable’ for such damages.
# # #
..here we have a statute fixing a severable liability. We thing the word ‘severalty’ in the statute cannot be ignored. (Emphasis supplied.)
Here the tort was not join tty committed. A. J. Carlson committed his wrong when he consented to Clayton D. Carlson driving the car, and Clayton I). Carlson having committed his wrong later when be was driving it. A. J. Carlson had previously made himself liable for any damages caused by Clayton’s negligence.
G-. S. 1949, 8 — 122b, relied upon by appellees, reads: ‘That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle. (Our-italics.) ’
Counsel for appellant contend that the only ‘owner’ mentioned in this statute is the one who is transporting a person who claims damages. That conclusion seems to be justified by the language of the statute, as seems clear by1" omitting the words we have italicized, ‘or operator,’ in the two places where they occur. In this interpretation the statutes are not conflicting. We think the result is that A. J. Carlson is liable under G. S. 1949, 8 — 222, and that G. 8. 1949, 8 — 122b, does not limit that liability. ’ ’

It will be noted that under the 1961 Act, Ark. Stat. Ann. § 75-315, supra, the liability of the owner of an automobile under subsection (c) is not limited to the negligence of the minor when driving a motor vehicle up on the highway, nor is it limited to negligence or willful misconduct of such minor in the operation of a motor vehicle. On the contrary, § 75-315 (c), supra, provides that where a parent knowingly causes or permits his child under the age of eighteen years to drive a motor vehicle upon any highway then the negligence or willful misconduct of said minor shall be imputed to such parent and lie “shall lie jointly and severally liable with such minor for any damages caused by such negligence or willful misconduct.”

The jury apparently found that the appellee assumed the risk of the willful and wanton negligent conduct of young Baugher and thereby waived her right of recovery against him. The jury did not find, nor were they requested to find, that the appellee assumed the risk of appellant’s own wrongful act of negligent and unlawful entrustmeut and we are unable to say, that as a matter of law, she waived her right of recovery against him.

The judgment is affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice.

I concur only because appellant is in no position to complain of inconsistent verdicts. The “assumed risk’’ instruction was given as to Baugher. It was not requested by Garrison. Thus, a defense available to Baugher was not available to appellant.


author: Conley .Eyed, Justice.

text:
    State of Arkansas v. Marlin Reeves
    5-5420
    442 S.W. 2d 229
    Opinion Delivered June 2, 1969
    [Rehearing denied July 14, 1969.]

      Joe Purcell, Atty. Gem; Don Langston, Asst. Atty. Gen. Mihe Wilson, Asst. Atty. Gen. for appellant.

      Howell, Price & W or slum for appellee.
   Conley .Eyed, Justice.

The State of Arkansas, pursuant to Ark. Stat. Ann. § 43-2720 (Repl. 1964), appeals from an order dismissing a charge of grand larceney against appellee Marlin Reeves upon the basis that Prairie County was not the proper venue. It is stipulated that all acts of appellee occurred in Pulaski County and that he was at no time present in Prairie County where the tractor was stolen — i.e., appellee Reeves only aided 'and abetted in the theft of the tractor.

To sustain the dismissal appellee relies upon Art. 2, § 10 of the Constitution of Arkansas, Ark. Stat. Ann. § 43-1424 (Repl. 1964) and Green v. State, 190 Ark. 583, 79 S.W. 2d 1006 (1935). Article 2, § 10 of the Constitution provides:

“In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall .have been committed;...”

Arkansas Stat. Ann. § 43-1424, being § 97 of chapter 45 of the Revised Statutes of 1838, provides:

“An indictment against any accessory to any felony, may be found in any county where the offense of such accessory may have been committed, notwithstanding the principal offense may have been committed in another county; and the like proceedings shall be had therein, in all respects, as if the principal offense had been committed in the same county.”

In Green v. State, supra, Green was prosecuted as an accessory before the fact. We there held that under Art. 2, § 10 of the Constitution Green could only be prosecuted in a county in which the accessorial acts were committed. In doing so we relied upon State v. Chapin, 17 Ark. 561 (1856).

In the Chapin ease we held that a citizen of Ohio could not be prosecuted in Arkansas as an accessory before the fact for the burning of a boat at Helena in Phillips County. In so doing, however, we said:

“Again, if a person absent from the State, commits a crime here, through or by means of an innocent instrument or agent, it seems that the law would regard him as personally present, and hold him responsible for the offense. As, for example, if the defendant had fired the Martha Washington through the agency of an idiot. Foster’s Crown Law 349; 1 Chit. Crim. Law 191; Wheat. Crim. Law 115. Or where one utters forged notes through an innocent agent. People v. Rathburn, 21 Wend. Rep. 509. Or obtains money by false pretenses, through such agency. People v. Adams, 3 Denio 190. Or sends poison to another through a letter, intending to poison him, and succeeds. Queen v. Garrett, 22 Eng. Law and Eq. Rep.; People v. Rathburn, ubi sup. 540.
Again, it seems, that in misdemeanors, where there are no accessories, but all are regarded as principios who, in any manner, participate in the commission of the crime, if a person in one State procure the commission of a crime of that grade in another State, through even a guilty agent, the procurer is regarded as a principal in the offence, and as being present, in contemplation of law, where it is committed, and answerable there for the crime. Commonwealth v. Gillespie et al., 7 Serg. & Ranule 478; People v. Adams, ubi sup; Barkhamsted v. Parsons, 3 Conn. Rep. 1; The King v. Johnson, 6 East Rep. 583.”

The theoretical distinction of why Chapin could not be prosecuted as an accessory before the fact on a felony charge but could be prosecuted on a misdemeanor charge is explained in Cousins v. State, 202 Ark. 500, 151 S.W. 2d 658 (1941), where we said:

“If a crime covers only the conscious act of the wrongdoer, regardless of its consequences, the crime takes place and is punishable only where he acts; but, if a crime is defined so as to include some of the consequences of an act, as well as the act itself, the crime is generally regarded as having been committed where the consequences occur, regardless of where the act took place,...”

See also Leflar, “The Criminal Procedure Reforms of 1936—Twenty Years After,” 11 Ark. L. Rev. 117, 131, 132 (1957).

Shortly after the Green case was handed down, the people of this state, by Initiated Act No. 3 of 1936, § 25 (Ark. Stat. Ann. § 41-118 [Repl. 1964]), provided:

“The distinction between principals and accessories before the fact is hereby abolished, and all accessories before the fact shall be deemed principals and punished as such ...”

Therefore, as we now understand Ark. Stat. Ann. § 41-118, the distinction between accessories before the fact and principals has been abolished and the effect thereof is to chango the definition of the crime so as to include the consequences of the act, as well as the act itself. Thus, under the language of the Cousins case, the crime committed by appellee Eeeves was in Prairie County, for that is whore the consequences occurred and according to art. 2, § 10 of the Constitution that is the only county in which the trial can be held.

Por the reasons herein stated we reverse and remand.