author: Ed. F. McFaddin, Associate Justice.

text:
    Ward Furniture Mfg. Co. v. Reather.
    5-2451
    350 S. W. 2d 691
    Opinion delivered November 13, 1961.

      Harper, Harper, Young & Durden, for appellant.

      Clinton R. Barry and D. L. Grace, for appellee.

      McMath, Leatherman, Woods & Youngdahl, Amicus Curiae.
   Ed. F. McFaddin, Associate Justice.

The question here presented is the legality and propriety of a Circuit Court Order remanding — for the second time — a claim to the Workmen’s Compensation Commission for further investigation.

For a number of years, appellee, John P. Heather, was employed in the manufacturing plant of appellant, Ward Furniture Manufacturing Company. In September, 1956, Heather became ill while at work and has never been able to resume work. He filed claim with the Workmen’s Compensation Commission, claiming total permanent disability because of damage to his respiratory organs resulting from constantly inhaling dust in the place where he worked. He claimed that his disability arose out of and in the course of his employment. Numerous witnesses testified; the hearings were adjourned from time to time at the request of the parties; and, on April 15, 1959 the Workmen’s Compensation Commission delivered a lengthy and well-considered opinion allowing the claim.

The employer appealed to the Sebastian Circuit Court; and on January 11, 1960, that Court entered a judgment which said in part:

"The court therefore finds that although the evidence in the record is insufficient to support the award, there is not sufficient evidence in the record to justify a final denial of the claim and that in the interest of justice this cause should be remanded to the Workmen’s Compensation Commission for further and full hearing.
"IT IS THEREFORE CONSIDERED, ORDERED, AND ADJUDGED BY THE COURT that pursuant to the provisions of the Arkansas Workmen’s Compensation Commission herein appealed from be and the same is hereby vacated and set aside, and this cause be and it is hereby remanded to said Commission with directions that both parties be permitted to present additional evidence, and for other proceedings not inconsistent with this order.”

The claim went back to the Commission, and on August 3, 1960, further lay and medical testimony was offered. Dr. Fose, called by the claimant, stated:

“He’s only got one lung. He’s got fibrosis of the left lung and he ’ll never be any better . . .
Q. What, in your opinion, caused the fibrosis of his lung?
A. I imagine the dust particles, according to the history of it.
Q. Did you take x-rays of his lung?
A. No, sir. I didn’t. I read all the reports, saw all the medical reports on him.
Q. Have you seen any x-rays of his lung?
A. No, I haven’t.”

Dr. Darnall, called by the employer, testified that wood dust would not cause silicosis or asthma; that claimant was a sick man, but there was nothing in his employment to have produced his present condition. In short, the doctor found no evidence that the employee’s present condition arose out of or in the course of his employment.

On August 31, 1960, the Workmen’s Compensation Commission entered an order disallowing the claim of Mr. Feather. That this disallowance was because of the Commission’s understanding of the Circuit Court Judgment of January 11, 1960, is clearly shown by the following excerpt from the Commission’s order:

“We are concerned, first, with the effect of the judgment of the Circuit Court upon this claim and upon the record previously before the Commission. The Supreme Court has time and again construed Section 25 (b) of the Workmen’s Compensation Law (81-1325 (b), Ark. Stats.,. 1947) as a prohibition against a disturbance, on appeal, of findings of fact by the Commission if they are supported by any substantial evidence; and in determining whether there is sufficient evidence, it must be viewed in its strongest light in favor of such findings. See citations on Page 195 of 1960 Replacement, Volume 7-A, Ark. Stats., 1947, Annotated.
“The effect of said judgment by which the Commission is bound is that, giving the testimony its strongest probative force, there was no substantial evidence before the Commission to support the finding in favor of a compensable injury. “Following the Circuit Court’s order, the parties have presented additional evidence, as hereinabove mentioned. There being no substantial evidence in the record, the burden is, of course, on the claimant to show that he was injured while in the course of and as a result of his employment. His own testimony taken before Referee Maner adds little if anything to his former testimony. The testimony of claimant’s witness, Hr. Rose, was somewhat impotent and unsubstantial and was completely refuted by the positive and convincing testimony of Dr. Darnall.
“We, therefore, find that claimant has failed to establish his claim and that it should be denied.”

From the Commission’s Order, the claimant appealed to the Circuit Court, which again vacated the Commission’s Order and again remanded the claim to the Workmen’s Compensation Commission for investigation. We now copy at length from the Opinion and Order of the Circuit Court of December 15, 1960:

‘ ‘ The court again has before it on appeal this workmen’s compensation case in which the claimant seeks compensation for disability which he conetnds arose out of his long employment in a section of the employer’s factory where dust is said to have constantly prevailed due to sanding operations on the furniture. The referee disallowed the claim in an opinion filed April 15, 1959 on the ground that the claimant had failed to show that he received an injury arising out of or in the course of his employment. The full commission on November 10, 1959 reached a contrary decision to that of the referee and allowed the claimant compensation. The case was thereafter appealed to this court and in an opinion dated January 11, 1960 this court remanded the case back to the Workmen’s Compensation Commission for rehearing on the ground that the medical evidence had not been fully developed and that due to the inconclusive state of the record it was considered by the court that no intelligent opinion could be arrived at so as to properly adjudicate the issue of whether or not the claimant’s disability arose out of his employment. In accordance with this view this court set aside the award and remanded the case to the full commission for a further and full hearing. Upon having the matter returned to it the full commission directed Referee Maner to conduct a hearing for the commission and at this hearing the claimant, Dr. Harley C. Darnall and Dr. W. F. Rose testified. Following this hearing the commission rendered its opinion dated August 31, 1960 now before the court. In this opinion the commission found that the additional testimony had not produced any substantial evidence in support of the claim and ruled that since they considered themselves bound by the court’s previous finding that the record as remanded was not sufficient and since no substantial proof had been added to it that therefore the award would have to be denied.
“This court is in agreement with the commission that the testimony adduced before the referee added nothing to the record . . . The court is accordingly constrained-to-take the position that the purpose of its previous order has yet to be carried out. In view of this omission the record is therefore being again remanded for a rehearing with the specific order to the commission that it employ a medical examiner qualified in the field in question for the purpose of securing additional specialist medical testimony relative to the issue of whether or not the claimant’s disability arose out of and in the course of his employment.
“In view of this situation a brief review of certain aspects of this case appear to be indicated. It is Undisputed that since 1948 the claimant has been employed in a room where furniture was sanded and there is nothing in the record to controvert the testimony of the claimant and others who testified that the sanding operations produced dust to which claimant was necessarily exposed. Respondent’s own doctor admits that the claimant is incapacitated for work but he does not explain from what cause, his testimony being limited to claimant’s pulmonary tree which in the doctor’s opinion had not been affected by the dust. The claimant’s medical testimony came from Dr. Thompson, a general practitioner. Dr. Thompson offered a choice of several diagnoses as to the cause of the claimant’s disability, being an allergy from work dust manifested by asthma, a fibrotic condition of the lungs produced by silicosis, bronchietasis, and he also suspected tuberculosis. Dr. Thompson caused the claimant to be examined by Dr. Hollis at the Arkansas Tuberculosis Sanitorium and Dr. Hollis’ report stated that he found no evidence of silicosis or tuberculosis, and that claimant had no marked pulmonary insufficiency. There was, according to Dr. Hollis, ‘some evidence of pulmonary emphysema,’ and Dr. Darnall also mentioned in his testimony that claimant had ‘what we diagnosed as minimal pulmonary emphysema,’ but that he regarded the condition as normal for the claimant’s age and the subject of emphysema has not been pursued in the record.
“While sentences can be extracted from Dr. Thompson’s testimony that would in some measure provide some basis for a service connected disability, his testimony as a whole and when considered in the light of the other medical proof is regarded as below the minimum standards of substantial proof. The court realizes that this position verges upon the area of passing upon the credibility of the witnesses, thus invading the province of the commission. However thin the line may be, the question of what constitutes substantial evidence is understood by this court to be a question of law, and in the instant case the court regards Dr. Thompson’s testimony as presenting no more than a choice of possibilities, and thus as unsubstantial.
The next question is: Can or should we stop here? In the case at bar the court does not feel that this question can be answered in the affirmative for several reasons bearing on the rights of both the claimant and his employer. In this case we have a disabled claimant, this is admitted, and there are medical questions involved which if adequately developed might well support his theory of the case. As the matter stands we have but one side of the story fairly and lucidly presented, that being the testimony of Dr. Darnall who unequivocally refutes claimant’s theory. And he may be entirely correct, for frequently the complex human body confuses the sufferer as to the true source of his ailment, and in the instant case dust may not be the foundation of the claimant’s condition. Likewise, it goes without saying, a medical expert may be confused in his diagnosis. This colloquy of the court reveals the confusion that exists in its mind with regard to this case and illustrates why it was remanded to the commission for further proof. This case is one-sided insofar as proof goes, and since this is a condition which can be remedied the remedy should be applied in the interest of fairness to all concerned.
“In remanding the record the court wishes to take this opportunity to express belief in the principle that a circuit court does not have to accept for final adjudication just any compensation record forwarded to it but that the court may and should examine the record to determine whether or not all reasonably available and necessary proof has been adequately developed so as to permit a proper consideration of the issues involved. This view is essential to and compatible with the duty of the court to pass upon the questions relegated to its jurisdiction under the workmen’s compensation act and gives meaning to that part of the statute giving the court authority to remand a case for a rehearing. (Arkansas Statutes Annotated, Yol. 7-A, Sec. 81-1325 (b).) Further, in connection with the subject of the completeness of a record, it is the opinion of the court that the Workmen’s Compensation Commission should not regard itself as sitting aloof as in a purely adversary proceeding, accepting only what is offered it in deciding a case. The workmen’s compensation act enjoins a different role in letter and spirit, for example Sec. 81-1319 (i) of the Arkansas Statutes Annotated provides that the commission may upon its own initiative * * * make such investigation, cause such medical examination to be made, hold such hearings, and take such further action as the commission deems proper for the protection of the rights of all parties; Sec. 81-1823 (b) provides that the commission shall make or cause to be made such investigation as it considers necessary in respect to a claim; and in Sec. 81-1327 the law provides that in conducting hearings the commission may make such investigations or inquiries or conduct the hearing in a manner as will best ascertain the rights of the parties. Lastly, in remanding this record for rehearing with the direction that the commission make such arrangements as are necessary for the claimant’s examination by a competent medical specialist, and for the procuring of his testimony before the commission, the court has in mind sub-sections (2) and (3) of Sec. 81-1343 of the statutes. One further subject should perhaps be mentioned. In holding the record as returned to the court as insufficient to support the award, the commission, as noted, reasoned that they were bound to accept the prior decision of the court that the original record was insufficient, and that since the additional proof was not substantial the commission reversed itself and disallowed the claim. Without questing the logic of the commission’s reasoning the court wishes to state that it did not intend to commit the commission to a piece-meal examination of each hearing nor was there any intent- to circumscribe the future judgment of the commission after the additional evidence was adduced, but rather it was the intent of the court to give the commission a free hand to act as it saw fit in the light of all the testimony finally before it. With this in view the award to the claimant was set aside and for the same reason the denial of the award is also set aside. In connection with this procedure some question might arise as to the propriety and right of the commission to again exercise jurisdiction where its previous award had been undisturbed by the appellate court.
“IT IS THEREFORE, BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that pursuant to the provisions of the Arkansas Workmen’s Compensation Act, the award of the Arkansas Workmen’s Compensation Commission herein appealed from be and the same is hereby vacated and set aside and that this cause be and it is hereby remanded to said commission with directions to carry out the orders of the court contained herein.”

From the foregoing Circuit Court Order of December 15, 1960, the employer appeals to this Court. Assuming, without deciding, that the said Circuit Court Order is an appealable judgment, we conclude that the sole desire of the Circuit Court was to see justice done by a full investigation and development of the facts. This Court, as well as the Workmen’s Compensation Commission, will join the Circuit Court in such desire.

The first Circuit Court Order was not concise enough for the Commission to understand all that was desired, but the present Order of the Circuit Court leaves no uncertainty. All of the evidence shows that this claimant collapsed while at work in September, 1956, and has not been able to work subsequently. Did his injury arise out of and in the course of his employment? Does he suffer from some occupational disease? Can this claimant make a ease for compensation as was done in Solid Steel Scissors Co. v. Kennedy, 205 Ark. 958, 171 S. W. 2d 929? Various other unanswered matters are reflected by the record in this case. Under § 81-1343 Ark. Stats, under other provisions of the Compensation Act, the Commission has full power to obtain the evidence that will afford sufficient answers to determine this claim. A hearing before the Commission is not a game: it is a patient, honest, sincere effort to ascertain the facts and apply the law. Onr Commission has been most diligent and conscientious in the performance of its duties; and we feel sure that this case will be thoroughly developed now that the Circuit Court’s Order is fully understood.

Affirmed.

       After eight and one-half pages of factual recitations, the Commission’s opinion states in part:
      “The evidence in the case is undisputed and we are, therefore, confronted with the question of whether or not testimony of claimant, his wife, his fellow employees and of Dr. H. B. Thompson constitutes substantial proof that claimant did sustain an injury arising out of and during the course of his employment.
      “We have made an unusually long statement, for the reason that it appears to us that the Referee erred in his finding that the claimant failed to sustain the burden of proof placed on him by the Act to show that he sustained an injury arising out of or in the course of his employment.
      “There is an abundance of testimony that establishes that the condition of the place where claimant worked was conducive to lung infection. No one has denied that the claimant became disabled while at work, went home sick, was treated by a physician for a long period of time, never returned to seek employment, and has never worked at anything since the day he left his employment on September 25, 1956.
      “It is true that the claimant has not shown that he has silicosis, but we do not understand that that is his contention. It is undisputed that he does have a lung infection. The Booneville doctors themselves certified that they found evidence of pulmonary emphysema. This term is defined in Dorland’s American Medical Dictionary as ‘unnatural distention and rupture of the air vessels of the lungs. It is usually due to excessive effort in expiration.’ So it is established beyond question that claimant has some sort of disease of the lungs. Whether it is temporary or permanent, we do not know, but there is no question but what claimant is wholly disabled at the present time. There is some intimation that being away from the place where he is requred to breathe dust and proper treatment, he may recover.
      “We are, therefore, of the opinion that the claimant has established a compensable injury and that he should be paid at the rate of 65% of his earnings at the time he ceased working for respondent, not to exceed a weekly rate of $25.00. . . '

       Dr. Darnall admitted that he did not examine Mr. Heather for bronchiectasis: “No, I did not do a bronchogram on him. I didn’t take a brenehography.”


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    St. Paul Fire & Marine Ins. Co. v. Central Surety & Ins. Corp.
    5-2491
    350 S. W. 2d 685
    Opinion delivered November 13, 1961.

      Riddick Riff el, for appellant.

      Cockrill, Laser é McOehee, for appellee.
   George Rose Smith, J.

Efford Freeman, Jr., an employee of Chessie’s Garage, was accidentally killed on October 3, 1959. The appellant had issued a policy of workmen’s compensation insurance to the employer and is prima facie liable for the death claim. The appellant contends, however, that a similar policy issued earlier by the appellee had not been effectively canceled before the accident and that the two insurance carriers should therefore be held jointly liable for the claim. Both the commission and the circuit court found that the appellee ’s policy had been canceled, so that the appellant was solely liable.

All the facts are stipulated. On May 8, 1959, the appellee’s policy, effective for one year, was issued to the employer hy Young Insurance Agency, at Osceola. On September 9, 1959, the same agency issued the appellant’s policy to the employer, also effective for one year from its date of issue. On the latter date, September 9, Young and the employer signed a printed form reciting that the first policy was canceled, effective September 9. On that date Young also sent a request for cancellation to the appellee’s general agent in Little Rock. Young did not at any time inform the general agent that the canceled policy had been replaced by a policy issued by another insurance carrier, the appellant.

On September 18 the general agent asked Young for a cancellation notice upon a different printed form and also informed Young that a fifteen-day notice of cancellation had to be given to the workmen’s compensation commission. On September 19 Young and the employer executed the new form, again reciting that the cancellation was effective September 9. On September 22 the general agent, having received the new form, issued a notice of cancellation to the commission, stating that the policy “has. been returned to us for cancellation as of October 7, 1959.” The accident occurred on October 3, which was before the cancellation date specified in the general agent’s letter to the commission.

The question turns upon this language in the statute: “No contract or policy of insurance issued by a carrier under this act shall be canceled prior to the date specified in such contract or policy for its expiration until at least fifteen days have elapsed after a notice of cancellation has been sent to the Commission and to the employer, provided however, that if the employer procures other insurance within the fifteen day period, the effective date of the new policy shall be the cancellation date of the old policy.” Ark. Stats. 1947, § 81-1338 (b).

In view of the proviso in the statute we think it clear that the commission’s ruling was correct. The fifteen-day notice to the commission may he important in some instances, hut it does not control the effective date of cancellation when the employer obtains other insurance within the fifteen days. In that case the effective date of the new policy is the cancellation date of the old one. Here the required notice to the commission was given on September 22. If the employer had procured other insurance on that date or within the next fifteen days the cancellation would have then become immediately effective, despite the recital in the notice that the policy was to be cancelled as of October 7 — fifteen days later. It happened, however, that when the notice was given the employer had already received a replacement policy from another solvent insurance carrier. In these circumstances there is no good reason for saying that the cancellation did not take effect at least as soon as the notice was given.

We recognize the rule relied upon by the appellant, that the statute is to be construed strictly to the end that employees will not be left without the protection of insurance coverage. But the rule of strict construction should not be carried beyond the reason for its existence. The legislature was plainly concerned with- the protection of employees, but it still permitted an accelerated cancellation date when other insurance had been procured. Double coverage is not contemplated. The statute contains only two substantive requirements, that notice be given and that other insurance be procured. Inasmuch as both requirements had been met on September 22 there was then no longer any reason for deferring the effective date of cancellation.

Affirmed


author: Paul Ward, Associate Justice.

text:
    Jones v. Jones.
    5-2492
    350 S. W. 2d 673
    Opinion delivered November 13, 1961.

      Harold Sharpe, for appellant.

      Mann é McCulloch, for appellee.
   Paul Ward, Associate Justice.

Tbis appeal comes from an order of the Probate Court of St. Francis County admitting to probate the last will and testament of Pink Jones. No testimony was introduced, the material facts being stipulated. They are set out below.

Pink Jones, at all times a resident of St. Francis County, in 1932 began living with appellee and continued to live with her as husband and wife in Arkansas until his death on April 20, 1959. They were never married, and J ones had no legally married wife at any time. The legal name of appellee was Lenora Scott, but she adopted the name of Lenora Jones when she began living with the deceased.

Pink Jones executed a will on October 6, 1952 which left.all his property to “my wife, Lenora Jones”. The will was filed April 29, 1959 with Proof of Will in due form, and thereafter appellee filed a petition for probate of will and appointment of personal representative showing the surviving spouse to be “Lenora Scott Jones” widow, and the heirs to be four brothers. On May 7, 1959 the Probate Court ordered “the instrument dated 6th day of October, 1952, executed by decedent and which has been filed in this Court, be, and the same is hereby, admitted to probate as the Last Will of Henry Pink Jones, deceased”. The same order appointed appellee executrix. On May 22, 1959 there was filed “Proof of Publication” showing publications on May 11 and 18, 1959 of notice of probation of the will and appointment of appellee as executrix.

On November 19, 1959 the four brothers of the deceased filed a “Petition To Set Aside Will” alleging they were heirs of Pink Jones, deceased; that Pink Jones left no children or widow; that Pink Jones and appellee were never married, and; that ‘ ‘ there is no such person as Lenora Jones, wife of Pink Jones, Decedent”. The prayer for relief was in accord with the above allegations. Appellee responded to the above, stating, among other things, that the time for filing said petition (by appellants) expired on November 11, 1959 (that is, six months after the Order of May 7,1959), which was twelve days before the petition was actually filed. Thus, two issues are presented to this Court: One. Was appellants’ petition filed in the time allowed by the Probate Code; and Two. Is the will valid?

One. We have concluded that appellants’ petition to set aside (contest) the will was filed in due time. Section 62-2114 of Ark. Stats, provides three periods of limitations in which such petition can be filed. Sub-section b (1) clearly is not applicable here. Sub-section b (2), upon which appellee relies, is not effective against appellants because they were not given notice of the admission of the will to probate in the manner required by § 62-2111. This latter section requires that “A copy of the notice shall also be served upon each heir . . .” This was not done here, although the four brothers were mentioned as heirs in the petition to probate. Therefore the applicable sub-section here is b (3) which gives appellants five years from May 7, 1959 in which to file their contest.

Two. We find no merit in appellants’ contention that “The lower court erred in its finding that it was the testamentary intent of Pink Jones to leave his estate to Lenora Scott (Jones) regardless of her name.” The cardinal rule, many times expressed by this Court, is that the testator’s intent must, if possible, be determined from the will itself. See Robinson v. Bishop and Wife, 23 Ark. 378; Gregory v. Welch, 90 Ark. 152, 118 S. W. 404; Cook v. Worthington, 116 Ark. 328, 173 S. W. 395; Norris v. Johnson, 151 Ark. 189, 235 S. W. 804; and Crittenden v. Lytle, 221 Ark. 302, 253 S. W. 2d 361. Here, it appears to us, the will is susceptible of but one logical conclusion. That conclusion is that Pink Jones intended to leave his property to the woman he called “my wife, Lenora Jones”. There is no contention or suggestion that appellee is not the woman referred to in the will. To make the identity still more conclusive the trial court had the right to consider the ‘ ‘ stipulation as to facts” as we did in Duensing v. Duensing, 112 Ark. 362, 165 S. W. 956 and Rand v. Thweatt, Adm’r., 222 Ark. 556, 261 S. W. 2d 778. In such stipulations we find that the deceased and “Lenora Jones” lived together since 1932, that the real name of the person who lived with the deceased was “Lenora Scott”, and that Lenora Scott adopted the name of Lenora Jones, the same as appellee herein.

In- this case no questions are raised as to the testamentary capacity of, or the exertion of undue influence on, the testator. This being true, the language used in Alford v. Johnson, 103 Ark. 236, 146 S. W. 516, is appropriate here. In that case the Court said:

“As long as the absolute power of testamentary disposition is conceded, a testator has the right to make a disposition of his property by will to one with whom his relations have been meretricious if it is a free and voluntary act, and of one having proper mental capacity.
In order for a will to be valid, it is not necessary that the motive which led to its execution should be virtuous, or that the object of the testator’s bounty should be meritorious; it is only essential that the will should be the free and voluntary act of a mind having proper testamenta ry capacity. ’ ’

It follows from what we have heretofore said that the Order of the Probate Court should be, and it is hereby affirmed.


author: Sam Robinson, Associate Justice.

text:
    Sims v. Schavey.
    5-2495
    351 S. W. 2d 145
    Opinion delivered November 13, 1961.
    [Rehearing denied December 11, 1961.]

      Ferris & Achee, Shreveport, La.; James M. Bow an, Jr., for appellant.

      Gaughan & Laney, for appellee.
   Sam Robinson, Associate Justice.

In May, 1923, the will of Edward L. Harper, Jr., a resident of Louisiana, was admitted to probate in Caddo Parish of that State. On the 6th day of October, 1959, a petition to probate the will was filed in the probate court of Ouachita County, Arkansas. The appellants herein, heirs at law of the testator, filed a response and asked that the petition to probate the will be denied. The probate court granted the petition and ordered the will admitted to probate-The testator’s heirs at law have appealed.

The issue here is whether our statute limiting the time in which a will may be admitted to probate applies to a will of a non-resident that has been admitted to probate in a foreign jurisdiction. Ark. Stat. § 62-2121 provides: “Probate of will of non-resident. — "When a will of a non-resident of this state, relative to property within this state, has been admitted to probate in another appropriate jurisdiction, an authenticated copy thereof, accompanied by an authenticated copy of the order admitting the will to probate, may be filed for probate in this state.” This is Section 60 of Act 140 of the Acts of the General Assembly of Arkansas for the year 1949.

Ark. Stat. § 62-2125, which is Section 64 of the Probate Code, Act 140 of 1949, provides: “Time limit for probate and administration. — No will shall be admitted to probate and no administration shall be granted unless application is made to the court for the same within five years from the death of the decedent; this section shall not affect the availability of appropriate equitable relief against a person who has fraudulently concealed or participated in the concealment of a will.” Thus it will be observed that the same Act providing for the probate of foreign wills provides a limitation of five years following the death of the testator, in which a will may be admitted to probate. A foreign will is not excepted in the Act from the limitation, and if this Court is to say that the Act limiting the time in which a will may be admitted to probate does not apply to a foreign will that has been probated elsewhere, we would have to read into the Act something that is not there.

It appears that undoubtedly one of the purposes of the five year limitation is to make secure the title to property. In the comment under Section 83 of the Probate Code (Simes, p. 106) it is said: “The five-year limitation laid down in this section is designed to take care of situations where there has been no probate or grant of administration during the period of five years . . . By the operation of these sections the heirs may deal with the property as owners after the five-year period.”

Mr. Simes, who was in charge of the research and one of the drafters of the Model Probate Code, in an address before the Louisiana Bar Association in 1953, said: “The last feature of the Model Probate Code which I wish to discuss is a limitation on the time within which probate of a will or administration is possible. . . . In common law jurisdictions, it is felt that we need provisions like this in order to make secure the title of the heir or other successor to the estate of the decedent . . .” (La. B. J., Yol. I, No. 3, p. 60)

At a legal institute held at the University of Arkansas Law School in 1957 (12 Ark. L. Rev. 38) Mr. Adrian Williamson, who had served on the committee which drafted the Arkansas Probate Code, said that he thought the words of the Act limiting the time in which a will could be admitted to probate are mandatory because it involves settling title to real property. And in reply to a question of whether the section on limitations applies to a foreign will, Mr. Williamson said (p. 50): “There is no exception mentioned, and I think it obviously does. A foreign will is not a will in Arkansas until it is probated.”

We have held that the statute of limitation applies to a will of a resident of the State. Horn v. Horn, 226 Ark. 27, 287 S. W. 2d 586. But the question of whether it applies to the will of a non-resident has not been before this Court. Other courts, however, have dealt with the problem. In Carpenter v. Denoon, 29 Ohio St. 379 (1876), the Ohio court held that a statute of limitation did not apply to foreign wills. On this point the court, without elaboration, merely said: ' ‘ The will was offered for and admitted to probate in the court having jurisdiction in the matter within three years from the death of the testator.”

In Oklahoma City University v. Baughman, 148 Kan. 510, 83 P. 2d 681, 119 A. L. R. 1255, the Kansas court followed the decision of the Ohio court in the Carpenter case, pointing out that the Kansas code of probate procedure was taken from Ohio.

In the Hawaii case of In re Estate of Newell, 10 Hawaii 80, the court followed the decision in the Ohio case.

On the other hand, the Kentucky court, in Foster v. Jordan, 113 S. W. 490, held that a similar statute of limitation did apply to foreign wills. The court distinguished Morrison v. Fletcher, 119 Ky. 488, 84 S. W. 548, and pointed out that the Morrison case should not be construed as holding that the Kentucky statute of limitation for probating wills did not apply to foreign wills, and later, in the case of Hoagland v. Fish, 238 S. W. 2d 133 (1951), the Kentucky court again held that “The right to probate a will, whether it be of a resident or nonresident of the state, is barred by the ten year statute of limitations when it is interposed. ’’ To the same effect are the Texas case of Nelson v. Bridge, 86 S. W. 7, and the Missouri case of Wyers v. Arnold, 147 S. W. 2d 644. We think the better rule is the one adopted by the states of Kentucky, Texas and Missouri, and we feel that it was the intention of the General Assembly that Ark. Stat. § 62-2125 should apply to the wills of nonresidents as well as to the wills of residents. The judgment is therefore reversed with instructions to deny the petition and to admit the will to probate.


author: Jim Johnson, Associate Justice.

text:
    Garrison v. City of Alpena.
    5028
    350 S. W. 2d 690
    Opinion delivered November 13, 1961.

      Len Jones, for appellant.

      Virgil D. Willis, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a traffic violation conviction.

Appellant, Bay Garrison, was charged in Mayor’s Court with the violation of a City Ordinance which made it a misdemeanor to run a stop-go light signal which was located at the intersection of U. S. Highway No. 62 and Center Street in Alpena. Appellant was found guilty of the violation in Mayor’s Court and prosecuted an appeal to the Boone Circuit Court. The case was there tried de novo before a jury which found appellant guilty of violating the City Ordinance and assessed his fine at ten dollars plus court costs. From such conviction comes this appeal.

For reversal appellant relies upon twelve points, most of which question the authority of the City of Alpena to regulate the traffic on Highway 62 within the city limits by the use of the signal device here used. Appellant relies upon §§ 75-502, 75-503, 75-505, Ark. Stats., and cites Arkansas Highway Commission v. City of Little Rock, 227 Ark. 660, 300 S. W. 2d 929, to support his contentions. We agree with appellant that the sections of Arkansas Statutes relied upon give the direction and control of traffic control devices located on state highways to the State Highway Commission. We further agree with appellant that Arkansas Highway Commission v. City of Little Bock, supra, stands for this proposition. Giving consideration to appellant’s offer of proof, we would probably further agree with his contention on this point in the instant action if he were the State Highway Commission but such is not the case. Section 75-503 (a), Ark. Stats., is as follows:

“Local authorities, in their respective jurisdictions, shall place and maintain such traffic-control devices upon Highways under their jurisdiction as they may deem necessary to indicate and carry out the provisions of this Act or local traffic Ordinances or to regulate, warn or guide traffic. All such traffic control devices hereafter erected shall conform to the State Manual and Specifications.”

Following the above legislative enactment, we are impelled to the conclusion that a city has the authority to pass local traffic ordinances to regulate, warn or guide traffic. See: Pierce Oil Corp., v. Hope, 127 Ark. 38, 191 S. W. 405; Goldman Co. Inc., v. City of North Little Rock, 220 Ark. 792, 249 S. W. 2d 961; Ft. Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187. The question as to whether traffic control devices placed or erected by a city to carry out traffic ordinances conforms to “the State Manual and Specifications” is a matter which could properly be brought up by the State Highway Commission and not, as here, by a person convicted of violating a valid traffic ordinance. See: Arkansas Highway Commission v. City of Little Rock, supra.

We have carefully examined the other points urged for reversal and find them to be without merit. As stated above, this is an appeal from a jury verdict. Four reputable business men of the City of Alpena testified that appellant ran the stop light without stopping. This evidence is substantial, therefore, following our substantial evidence rule, the judgment is accordingly affirmed.

Bohlinger, J., not participating.


author: Neill Bohlinger, Associate Justice.

text:
    Southern Farm Bureau Casualty Ins. Co. v. Brigance.
    5-2497
    351 S. W. 2d 417
    Opinion delivered November 13, 1961.
    [Rehearing denied December 18, 1961.]

      Hardin, Barton & Hardin, for appellant.

      Donald Poe, for appellee.
   Neill Bohlinger, Associate Justice.

The appellee, Omer Brigance, was the owner of a 1957 Ford two-door sedan which was insured against damage under a policy issued by the appellant, Southern Farm Bureau Casualty Insurance Company.

The car belonging to appellee was damaged in a collision on the 22nd day of May, 1960. The appellee advised his insurance carrier, appellant, of the damage and an investigation was made as to the extent of the damage and the cost of repairs.

The usual amount of bickering between appellant’s adjustor and the appellee seems to have taken place and the appellant offered to take the car to a garage of its choosing and have the repairs made. The appellee, however, had left the car with a garage at Waldron and refused to allow it to be repaired by anyone else.

The appellee had other appraisals made of the damage and the appellant called in an independent appraisal agency. The parties seem to have been unable to agree on the parts damaged in the wreck or the cost of their replacement and the appellee thereafter had the garage at Waldron, where he had left the car, make the repairs. The appellee testified that he paid the cost of the repairs with two checks, one in the amount of $50.00 which was the amount of the damage exempted under his insurance policy and the balance of the bill amounting to $874.49 was paid by another check.

Thereafter the appellee brought his suit against the appellant in the Scott Circuit Court and the matter was submitted to a jury under instructions that are not questioned here and the jury found for the appellee in the sum of $874.49.

Stripped of all its trivia, the case presents only these questions. Was the car insured by the appellant? Was it damaged? Did the testimony support the jury finding of damages in the sum of $874.49? The first two questions we answer in the affirmative. The law under which we proceed to review the jury’s finding has been so universally accepted that we refrain from burdening this opinion with a long list of citations. The case of Arkansas Motor Coaches, Ltd., v. Williams, 196 Ark. 48, 116 S. W. 2d 585, is a clear and decisive statement of the law involved.

“We recently held: ‘We there said that we would not reverse a judgment because the verdict upon which it was based was so clearly against the weight of the evidence as to shock the sense of justice of a reasonable person, and that we could reverse a judgment for lack of testimony only in cases where there was no substantial evidence to support it. We may, therefore, determine only whether there is any testimony of a substantial character to support the verdict, and we must in passing upon that question, in conformity with settled rule of practice, give to the testimony tending to support the verdict its highest probative value along with all inferences reasonably deducible from the testimony.’ Coca-Cola Bottling Co. v. Hill, 192 Ark. 154, 90 S. W. 2d 210; Chalfant v. Haralson, 176 Ark. 375, 3 S. W. 2d 38.

Again this court recently said: ‘The jury’s verdict is conclusive here on questions of fact, even though we might believe that the preponderance of the evidence was the other way. This court does not pass on the credibility of witnesses nor the weight to be given to their testimony.’ C. R. I. & P. Ry. Co., v. Britt, 189 Ark. 571, 74 S. W. 2d 398.”

With some of the conclusions of the jury, from the evidence in this case, we do not necessarily agree, but as we said in the Arkansas Motor Coach case cited above, we will not reverse the verdict because the evidence on which it was based is so clearly against the weight of the evidence as to shock the sense of justice of a reasonable person but if the jury could have found as it did, from the evidence presented to it, we accept the jury’s verdict. The weight and sufficiency of the testimony is peculiarly within the province of the jury and that is a field upon which we do not trespass.

There is testimony on which the jury could have found and did find damages against the appellee and those findings will not be disturbed here.

However, where there is a total lack of evidence, this . .court can and should reverse on the items that are not supported by any evidence.

In the instant case there was considerable testimony directed at the replacement of what is called the “A-Frame”. Appellant’s witness testified that the “A-Frame” assembly was not damaged and that no replacement thereof was necessary. However, appellee’s witness testified that he did replace the “A-Frame” assembly and made a charge of $89.90 therefor. Included in the “A-Frame” assembly is a part known as a left spindle. Included in the bill to the appellee there was listed an additional charge of $26.90 for another left spindle. The testimony is positive that only one left spindle conld be used, we therefore conclude that the charge of $26.90 for a left spindle is a duplicate charge for which the appellant is not liable.

The case having been fully developed, the judgment of $874.49 against the appellant is reduced by the charge for the left spindle, making the total judgment $847.59. Under this modification the appellee will not be entitled to the penalty or attorney’s fees and the appellant will recover its costs.


author: Carleton Harris, Chief Justice. Ed F. McFaddin, Associate Justice,

text:
    Duty v. Gunter.
    5-2517
    350 S. W. 2d 908
    Opinion delivered November 20, 1961.

      Wright, Lindsey, Jennings, Lester & Bhults, for appellant.

      Ben M. McCray, for appellee.
   Carleton Harris, Chief Justice.

This is the second appeal in this case. In Duty v. Gunter, 231 Ark. 585, 331 S. W. 2d 111, a $2,000 judgment for appellee was reversed because of the court’s error in admitting improper evidence. On a second trial, the jury returned a verdict of $7,500 for appellee, and from the judgment entered thereon, appellant brings this appeal. The sole issue in this appeal is whether the verdict and judgment are excessive.

Mr. Gunter, age 60 at the time of the trial, was injured in an automobile collision on February 2, 1959. The proof reflects that Gunter’s truck was worth between $1,700 and $1,900 before the accident, and that he was allowed $700 for same on the purchase of another truck subsequent to the accident. Further, the appellee incurred an expense of $32.50 on the date of the collision, covering emergency medical, hospital, and ambulance bills; he has since expended $40 in medical and drug bills, and $33 for replacement of his glasses, which were broken at the time of the collision. Appellee suffered a cut over his eye, which required seven stitches. No medical evidence was offered, but according to Gunter’s testimony, he suffered a broken rib, has frequent headaches, is very nervous, and is bothered by pain in his stomach, back, neck, and spine. One of his principal complaints deals with an inability to sleep. Gunter stated that since the wreck, he is only able to sleep two or three hours per night; that he generally sleeps until twelve or one -o’clock, “and then that’s all of it.”

Appellant testified that due to his condition, he was unable to work, and had been unable to work since the collision; that he normally made $2.75 per hour when employed. Appellant points out that appellee did not show the availability of work during this period, and that he had not worked for fourteen months before he was injured. The record does reflect, however, that on the occasion of the collision near Russellville, he had gone from Benton to the site of a job near Dardanelle for the purpose of obtaining employment. Upon being advised that construction would probably start at the site in the spring, Gunter returned to Russellville to the employment office there, to ascertain how the labor would be handled. Shortly thereafter, he was involved in the collision from which stems this litigation.

Appellant cites several cases in support of his contention that the verdict is excessive. It is true that from a comparison, this verdict does appear unduly large. In Turchi v. Shepherd, 230 Ark. 899, 327 S. W. 2d 553 (1959), we said:

“A comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value.”

However, aside from other cases, we are very firmly of the view that the evidence in the instant case does not support the amount of judgment, i.e., the injuries do not appear to be so substantial or disabling as to justify the amount awarded. Gunter was not in the hospital more than thirty or forty minutes, and was released, leaving by taxi. His medical expense was nominal; his visits to the doctor after the collision appear to be infrequent, and neither the broken rib, nor the “sleeplessness” complained of, was corroborated. Appellant strongly argues the failure of Gunter to offer supporting medical evidence. This, of course, is noticeable, but it is likewise true that appellant offered no medical evidence to minimize the asserted injuries.

Determining the proper amount of award in a personal injury suit is indeed difficult, but when we give the evidence its greatest probative value, as we must, we are of the opinion that the proof introduced will not justify a judgment for personal injury damages in excess of $2,300. Giving Mr. Gunter the benefit of the highest figure mentioned in evaluating the truck before the collision, and deducting therefrom the value of the truck after the collision, we arrive at the figure of $1,200 for the loss of this property, or a total award of $3,500.

If within seventeen calendar days, a remittitur be entered in keeping with this opinion, the judgment is affirmed as so reduced. If such a remittitur be not entered, the case will be reversed and the cause remanded for a new trial.

McFaddin and Johnson, JJ., dissent.

Ed F. McFaddin, Associate Justice,

dissenting.

The only point urged by the appellant on this appeal is, “The verdict and judgment are grossly excessive.” All other questions have been brushed aside. The verdict on the former trial is entirely beside the issue. That was another jury. The only question, here, is whether the verdict for Gunter is so grossly excessive as to shock the conscience. The Majority is holding that the $7,500.00 verdict rendered by the jury in this case is grossly excessive; and from that holding I dissent.

This question of when a verdict is grossly excessive is one of the most perplexing problems that an appellate court has to consider. A trial jury views the plaintiff first hand, and determines the amount of the verdict; and, under our system of jurisprudence, that verdict should not be disturbed unless it is so grossly excessive as to shock the conscience of the appellate court. The right of trial by jury is guaranteed by our Constitution; and by the very nature of our government, trial by jury is a bulwark against oppression and radical changes; so an appellate court should consider the case most seriously before reducing any verdict.

In deciding whether the verdict is grossly excessive, the evidence in support of the verdict must be given its strongest probative force. The Majority mentions that the plaintiff’s testimony is not corroborated by any medical evidence. It does not have to be corroborated. The plaintiff elected to state his testimony to the jury, who could observe him testify. His testimony is substantial, and corroboration is not necessary in considering the excessiveness of the jury’s verdict. The question is whether twelve fair-minded men, sitting as a jury, could have reached the figure of $7,500.00 from the evidence in this record. If they could, then the verdict should stand. If they could not have reached such a figure, then the verdict should not stand. But, at all events, the evidence in favor of the verdict must be given its strongest probative force.

In this case, the verdict was for $7,500.00. The damage to Mr. Gunter’s car is stated by the Majority to be $1,200.00; and I accept that figure. That leaves $6,300.00 The Majority lists expense items of $32.50, $40.00, and $33.00; and these total $105.50. Deducting these from the $6,300.00 lan-o-aa a balance of $6,194.50. Now, here are the injuries that Mr. Gunter sustained which the Majority says are not worth $6,194.50: (1) Mr. Gunter suffered a cut over his eye which required seven stitches; (2) Mr. Gunter had a broken rib; (3) the collision occurred on February 3, 1959, and the case from which the present appeal comes was tried on April 4, 1961; and Mr. Gunter has suffered headaches from the time of the collision to the time of his testifying; (4) he is nervous and has been bothered by pains in his stomach, back, neck, and spine for over two years; (5) he has been unable to sleep more than two or three hours a night; and (6) he has been unable to work from the time of the collision to the time of his testifying, and if he has been able to work, his normal pay was $2.75 an hour when employed.

I do not know how much the physical injuries and pain are worth; but it occurs to me that a man fifty-nine years of age, who suffers all of these injuries and had been unable to work for over two years, is certainly entitled to substantial damages. I could not say, as a matter of law, that $6,194.50 is excessive. Did Mr. Gunter have to show, not only that he was able to work, but also that work was available to him and that he could have worked except for the injuries and could have drawn a certain amount of money? If he had to show these latter matters, then anyone who was injured during a depression could not recover anything for his injuries. No: it is loss of the capacity to work that constitutes damages.

In 15 Am. Jur. 502, “Damages” § 91, in discussing decreased earning capacity, the holdings are summarized: “Where disability to labor is established, a reasonable sum may be awarded therefor, irrespective of whether the injured person has any definite income, or is engaged in any occupation at the time.” See also 25 O. J. S. pp. 512 and 619, “Damages” §§ 40 and 87.

Mr. Gunter was a carpenter and millwright, and testified that the pay for such work was $2.75 per hour. On the day of his injury, he had gone to Russellville to see about employment on a government job soon to begin. After he saw about the work he went to see about renting a house to be near the place of work. He certainly would not have been contemplating the renting of a house unless he had a reasonable expectation of getting the work. If Mr. Gunter had worked eight hours a day at $2.75 an hour, he would have earned $22.00 a day. Working five days a week, he would have earned $110.00 a week. If he had worked only one year of fifty weeks, he would have earned $5,500.00. Yet the Majority is holding as grossly excessive the verdict of $6,194.50 for all of his injuries, pain, suffering, inability to sleep, and inability to work over the two year period. I cannot agree with such a holding: and so I dissent.

       The suit had been pending for about two years, and the complaint sought judgment for $22,400. Appellee alleged severe injuries, and asserted that “plaintiff will continue to suffer great and excruciating pain and mental anguish * * Apparently no effort was made by appellant to have appellee examined.'


text:
    Gray v. Ouachita Creek Watershed District.
    5-2504
    351 S. W. 2d 142
    Opinion delivered November 20, 1961.

      George F. Hartje, Jr., for appellant.

      Mehaffy, Smith dfr Williams, by R. Ben Allen, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question presented is whether there has been an arbitrary and excessive taking of lands in an eminent domain proceeding.

In September, 1960, the appellee, Ouachita Creek Watershed District (hereinafter called “District”) filed its complaint in the Perry Circuit Court seeking to acquire by eminent domain certain lands for the construction site of dams, etc. in its watershed construction project. The complaint alleged in part:

“That the said District was organized on the 5th day of November, 1958 by an order, of the Chancery Court of Perry County, Arkansas, under authority of the Arkansas Irrigation, Drainage and Watershed Improvement Act No. 329 of the Acts of Arkansas of 1949, as amended (Section 21-901 to 21-924 of the Statutes of Arkansas). That said District was organized for the purpose of preventing flood water, sediment damage and soil erosion to the lands embraced within the said District, and in cooperation with the Federal Government under the Watershed Protection and Flood Project Act (Public Law 566 of the 83rd Congress). That this action is a Civil Action wherein the District seems to exercise the power of eminent domain and for ascertainment and award of just compensation to the owners and parties at interest in the lands sought to be condemned. That this action is brought as authorized by Section 29-912 of the Statutes of Arkansas and under the provisions of Section 35-1101 to Section 35-1113 of the Statutes of Arkansas. THAT the use for which the property is to be taken is for the construction and operation of dams, rights-of-way, drainage ditches and other works of improvement in connection with the said Watershed District, and for the use and benefit of the land owners within said District and for the public in general in the prevention of floods and soil erosion and other purposes; and that the lands sought to be condemned are necessary for the use thereof and for the completion of the proposed works of improvement in cooperation with the Federal Government.”

The appellant McKinley Gray, for himself and other landowners, filed answer and cross-complaint. He admitted the organization of the District but claimed that the taking of some of the lands was arbitrary and excessive. The Perry Circuit Court temporarily suspended all the proceedings in the condemnation case; and transferred to the Chancery Court, for determination, the issue as to whether there was an arbitrary and excessive taking of lands by the District. The Chancery Court heard the issue transferred to it and entered its decree, the germane portion of which recites:

“Both the plaintiff district and the defendants have introduced testimony of a technical nature concerning the necessity of the said district to construct the works of improvement on the lands involved, and the court finds from said testimony that the lands involved are necessary for the plans of improvement for the district; the court further finds that the said district has the authority to exercise the power of eminent domain and to condemn lands found to be necessary for the improvements to be constructed for the benefit of the district . . .”

Prom the Chancery Decree there is this appeal, and the appellants list as the only point presented:

“The Court’s holding, that the lands sought to be condemned herein were necessary for the fulfillment of the purposes of the watershed district, was erroneous as against the preponderance of the evidence.”

When the appellant alleged that the taking was arbitrary and excessive, there was thus presented an issue which was cognizable in chancery. Burton v. Ward, 218 Ark. 253, 236 S. W. 2d 65. But the making of such an allegation is much easier than the offering of sufficient evidence to sustain it. The State, by conferring on the District the power of eminent domain, necessarily left largely to the discretion of the District the location and area of the land to be taken. And one seeking to show that the taking has been arbitrary or excessive shoulders a heavy burden of proof in the attempt to persuade the Court to overrule the District’s judgment. Burford v. Upton, 232 Ark. 456, 338 S. W. 2d 929; Woolard v. State Hwy. Comm., 220 Ark. 731, 249 S. W. 2d 564; State Game & Fish Comm. v. Hornaday, 219 Ark. 184, 242 S. W. 2d 342; State Hwy. Comm. v. Saline County, 205 Ark. 860, 171 S. W. 2d 60; and Patterson Orchard Co. v. S. W. Ark. Util. Corp., 179 Ark. 1029, 18 S. W. 2d 1028.

In State Highway Comm. v. Saline County, supra, the State Highway Commission was condemning a right-of-way through certain lands, and we said of the Highway Commission:

“Since it had this power it also had discretion to determine the route and the location of the right-of-way. ‘ A broad discretion is necessarily vested in those to whom the power of eminent domain is delegated, in determining what property is necessary for the public purpose, with respect to the particular route, line, or location of the proposed work or improvement; and the general rule is that the courts will not disturb their action in the absence of fraud, bad faith, or gross abuse of discretion. The landowner may not object merely because some other location might have been made or some other property obtained which would have been suitable for the purpose. ’ 18 Am. Jur. 735. In 29 Corpus Juris Secundum (Eminent Domain § 91), page 886, it is said: ‘Under a delegation of the power of eminent domain the grantee of the power, in the absence of legislative restriction, may determine the location and route of the improvement and of the land to be taken for it, and such determination will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious, or in some respects beyond the privilege conferred by the charter or statute.’ Justice Butler, speaking for the court in the case of Patterson Orchard Co. v. Southwest Arkansas Utilities Corporation, 179 Ark. 1029, 18 S. W. 2d 1028, 65 A. L. R. 1446, said: ‘While the Legislature has said that a right of way must be necessary for the exercise of the rights of the corporation taking it, the question of whether or not there was a necessity must necessarily be left largely to the discretion of the corporation itself, and, unless it clearly appears that such discretion has been abused and its action arbitrary and to the unnecessary damage of property owners, the exercise of that discretion will not be disturbed.’ ”

Did the appellants discharge the heavy burden imposed upon them in this case? That is, did they show that the taking was arbitrary and excessive? They offered the testimony of a capable engineer who testified that in his opinion the dams “2” and “3”, to be located on the lands of appellants in the northernmost end of the District, were unnecessary, and that the same result could be obtained by deepening the main ditch one foot. To overcome this testimony, the appellee District introduced the Hydraulic Engineer of the Soil Conservation Service of the United States Department of Agriculture and also the Assistant State Conservationist of the Soil Conservation Service. These witnesses for the defendant testified that the work plan of the district was correct. There was introduced in evidence this plan for watershed protection, flood prevention, and agricultural water management of the Ouachita Creek Watershed; and it is a most enlightening prospectus. Five technicians spent months going over the ground and preparing the booklet for this Ouachita Creek Watershed, and the result of their efforts and labors is the plan that was introduced. They used mathematical formulas as to the number of acres, the rainfall, the drainage problems, etc., etc., and concluded that these dams “2” and “3”, on the lands here involved, were required for the safe operation of the watershed project. The engineer for the appellants was just as capable as the engineers for the District; end it is just a difference of opinion between the engineers as to whether the deepening of the main ditch is better than the location of the two uppermost dams. The situation was very well summed up in the question to and answer made by the engineer for the appellants:

“Q. And then you have taken this data that has been worked up by the Soil Conservation Service and put in this form and yon — it is just a difference of opinion, is that right?

A. A difference of opinion as to the requirements: the Soil Conservation Service seems to think that Dams No. 2 and 3 are required; in my opinion they are not.”

With the evidence thus in equipoise, the Chancery Court held that the objecting landowners had failed to establish by the required quantum of proof that there was an arbitrary and excessive taking. On appeal, we cannot say that the decision of the Chancellor was against the preponderance of the evidence. When honest and capable men may differ as to whether to build a dam or deepen a channel, it is a matter in the engineering field; and, on this evidence, there is certainly no-showing that the taking was excessive or arbitrary. With the District acting on the advice of its engineers and advisers, certainly the District did not abuse its discretion in following the work plan developed over many months by competent persons.

The decree is affirmed.

       See § 21-912 Ark. Stats.


text:
    Laney v. Ark. Real Estate Co., Inc.
    5-2493
    350 S. W. 2d 911
    Opinion delivered November 20, 1961.

      Gaughan <& Laney, for appellant.

      Moses, McClellan, Arnold, Owen & McDermott and James R. Uoivard, for appellee.
   George Rose Smith, J.

This is a suit by the appellants, the four children of W. H. Laney, to quiet their title to a tract of about seventy acres lying near the south edge of the city of Little Bock. They claim title (a) under two tax deeds which their father obtained from the state in 1941 and 1944 and (b) by adverse possession. The appellees, Arkansas Beal Estate Company, Inc., and Arkansas Warehouse Corporation, rely upon quitclaim deeds by which they acquired the record title to the land in 1956 and 1957. The chancellor found the tax deeds to be invalid, for want of a good description, and held that the appellants had proven title by adverse possession only to the north seven acres of the tract. In appealing from that decree the appellants insist that they established good title to the entire tract.

The tract is a rectangle, about a half mile by a quarter mile in size, with its longer direction running north and south. A railroad right-of-way runs along the northern boundary and cuts off the northwest corner of the rectangle.

The chancellor’s finding that the appellants have acquired title to the north seven acres is amply supported by tbe proof and has not been challenged by cross appeal. This part of the land was occupied by tenants of the Laneys for more than ten years, beginning in about 1944. The principal tenant, Bell, lived in a small house on this parcel from about 1945 until his death in 1952. Bell and his successors raised cotton and vegetables during the years of their occupancy. The proof shows that this north seven acres was completely enclosed, the fence along its southern boundary being an interior cross fence that divided the entire seventy-acre tract into two parts.

In this court the dispute concerns the southern part of the tract. The appellants’ father, W. H. Laney, kept cattle and horses on this part of the land, though perhaps not continuously, from about 1944 until his death in 1951. Small scattered fields were cultivated from time to time, but not for a continuous period of seven years. The chancellor evidently concluded that the land now in controversy had not been physically occupied, in its entirety, by the Laneys and their tenants for a sufficient length of time to vest title by adverse possession.

We think the chancellor overlooked the fact that, according to the decided weight of the evidence, the parcel now in question was continuously enclosed by fences from about 1943 until about 1953. When this enclosure of the land is considered along with the acts of dominion exerted by the Laneys and their tenants all the elements of adverse possession are established.

Several of the Laneys’ former tenants and employees testified in the case. Frank Hardester worked for W. H. Laney for several years. In 1942 or 1943 he helped build the west fence which, together with the older fences, completed the enclosure of the land. After the west fence was built Hardester helped repair the south fence. He testified positively that the entire tract was thereafter completely enclosed by substantial three-wire fences until he left the neighborhood in 1950. One of the appellants, William R. Laney, said that to his knowledge fences were maintained for several years prior to 1949. His brother, Walter Laney, inspected the tract in 1950 and testified that the land was then completely enclosed. H. W. Brown was familiar with the land from 1951 until 1955 and rented it for part of that time. He said that the land was fenced on all sides until he removed the south fence, apparently in 1953, to provide access to other land that he was renting just south of this tract. There was much other testimony relating specifically to various fences along the four sides of the tract, but we need not detail this proof.

The appellants’ abundant testimony is convincingly corroborated by disinterested surveyors whose business it was to know the facts. In 1953 the owners of the Durst land, which adjoined the Laney tract on the east, had their land surveyed by a civil engineer. The ensuing plat showed the greater part of the Laneys’ east fence, and the surveyor testified that he walked along their south fence after finding his point of beginning at the southwest corner of their land. Another independent survey, prepared for the highway department in 1958, showed both the east fence and the west fence on the Laney land. Still a third surveyor, employed by the appellants to prepare a plat to be used at the trial, found portions of the east and west fences in 1959, although by then the wire was badly in disrepair.

The appellees’ proof falls distinctly short of overcoming the strong case presented by the appellants. The appellees’ principal witness was Robert M. Traylor, who, we infer, owns the controlling interest in the two appellee companies. Traylor had known the land since 1943, but prior to 1956 his concern with the property was necessarily casual, for he is not shown to have lived nearby and he did not acquire any interest in the land until 1956. He testified that the land was not fenced during the pivotal decade following 1943. His testimony is contradicted by many witnesses who were more familiar with the land than he was and by the strong evidence given by the various surveyors. In like manner the other testimony adduced on behalf of the appellees is insufficient to rebut the appellants’ positive showing of adverse possession for more than seven years.

The decree is reversed and the cause remanded for the entry of a decree quieting title in the appellants and for further proceedings with respect to a sewer line easement claimed by the city of Little Rock.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Phillips v. Bray.
    5-2539
    351 S. W. 2d 147
    Opinion delivered November 20, 1961.
    [Rehearing denied January 8, 1962.]

      J. B. Milham, for appellant.

      Biddick Biff el, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation Case. Appellant, J. Ward Phillips, was injured in 1955, was granted compensation in November 1958 for 56 1/4 weeks at $25 per week, and then filed for increased compensation in January, 1960. This latter claim was denied by the Referee, the full Commission and the Circuit Court, and now this appeal is prosecuted by appellant. Although the above mentioned three tribunals reached the same result which we hereafter reach, this result is not reached for the same reasons. To clarify the situation we deem it expedient to set out below a chronological summary of the essential facts involved and also the several procedural steps taken.

Appellant was injured in the course of his employment on September 9, 1955. A claim was promptly filed, pending which he was paid $100 for four weeks total disability. A hearing on the claim was repeatedly delayed because of the ill health (and subsequent death) of appellant’s attorney. Finally a hearing was held before a Referee (Calhoun) on November 12, 1958. The Referee found that appellant received a 12 1/2 percent permanent partial disability to the body as a whole, and he was awarded $25 per week for 56 1/4 weeks. No appeal was taken from this award, and thirty days after the award was made the insurer paid appellant the full sum of the award, or $1,406.25. A record of the proceeding before Referee Calhoun is not contained in the record before us.

On January 18, 1960 appellant filed a claim for total permanent disability before a Referee (Mathis) at which time testimony was introduced by appellant and two other witnesses tending to show (a) that appellant was totally disabled and (b) that the doctor bills of Dr. Cole and Dr. Hundley had not been paid. The respondent contended it had paid all bills presented, and took the position that this claim of appellant was barred by Ark. Stats. § 81-1318 (b). Based on the above proceedings another Referee (Thomasson), on September 19, 1960, found (a) that the claim was barred by the above statute and (b) that all “medical bills for which respondent is responsible have been paid”.

An appeal from the above decision was taken to the full Commission. At this hearing appellant (the only witness) testified at length, principally to the effect that the bills of Dr. Cole (in the amount of $40) and Dr. Hundley (in the amount of $87) had not been paid. He also attempted to show that he was totally disabled. The respondent again contended all bills had been paid and that the claim was barred. The full Commission found: (a) The claim was not barred by statute; (b) Dr. Cole’s bill had not been but should be paid, and; (c) “there was no showing that the claimant is disabled to any further than the 12 1/2 percent for which he has been awarded and paid compensation”.

On appeal to the Circuit Court the findings of the full Commission were affirmed. In doing so, the trial court said it could ‘ ‘ find no where any testimony which indicates that his [claimant’s] present condition is in any way related to his traumatic injury in 1955”.

We agree with the result reached by the full Commission and the Circuit Court, but we reach that result for different reasons hereafter set forth.

(1) The Commission and the Circuit Court (as above shown) found claimant had produced no substantial evidence to show that his present disability exceeded 12 1/2 percent (for which he had already been paid), or, if it did, there was no substantial evidence to show such excess disability was the result of the 1955 injury. Our view is that, if the claim is not barred by limitations, the cause would have to be remanded to the Commission to give claimant an opportunity to produce the required evidence. We say this because it appears from the record that claimant was misled into a failure to produce such evidence before the Referee. The hearing before Referee Mathis (above mentiond) was the time and place for claimant to present the required testimony, but it appears to us (and it may have appeared to claimant) that the hearing was limited to the question of limitations.

Mr. Biff el: “Are we going to confine this hearing to the question of limitations?

Mr. Mathis: “Yes.

Mr. Milham: “Are you ready now?

Mr. Mathis: “Yes. Have your first witness come around and take the chair please.”

(2) It is our opinion, however, that appellant’s claim is barred by § 81-1318 (b) previously mentioned. The above subsection reads:

“Additional compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of accident, which ever is greater. ’ ’

The last payment was made to appellant on December 12, 1958, and his claim for additional compensation was not filed until January 18, 1960. Thus it definitely appears on the face of the record that the claim for total permanent disability was filed too late. To avoid this result, claimant contends (a) the last payment was not made until 56 1/4 weeks after the payment on December 12, 1958 and (b) all doctor bills have not been paid.

(a) Claimant’s contention before the Referee was that the -weekly payments should start on November 12, 1958 (the date of the award) and run for 56 1/4 weeks; this would extend the time to about December 15, 1959, and the one year allowed by statute would give him until December, 1960 to file his claim. For several reasons, we cannot agree with appellant. Under the statute weekly payments begin fifteen days after notice to the employer of injury [§ 81-1319 (b)]. We know claimant gave prompt notice (in 1955) because he was paid for four weeks in 1955. Also, there can he no doubt that the $1,406.25 payment was to take care of payments already accrued, and not for future accruals. This is confirmed by the language used in § 81-1319 (k) which allows a 4 percent deduction when future payments are discharged by a single total payment. This deduction was not claimed or taken here by appellees. We see no merit in the argument that claimant would be entitled to an additional 20 percent of all past due payments if the $1,406.25 is so considered. This argument is predicated on § 81-1319 (f). It will be noted however that this penalty attaches only where an award has been made. No award was made in this case until November, 1958, and payment was made the next month.

(b) Next, it is appellant’s contention that the one year statute of limitations is tolled by appellees’ failure to pay certain doctor bills. The Commission (and the Circuit Court) found that Dr. Cole’s bill for $40 has not been but should be paid. Although appellant has not specifically pointed out just how and why this would toll the statute, we assume it is because medical bills are a part of compensation and therefore the one year limitation would not begin to run until the last bill is paid. If this contention is sound, then appellant still has time in which to file his new claim. For reasons set out below, we have concluded that the above contention is not tenable.

Turning to § 81-1311 we find the employer “shall promptly provide for an injured employee such medical . . . service ... as may be necessary during this period of six [6] months after the injury . . .” This same section also provides that all persons who render such services shall submit the reasonableness of their charges to the Commission for approval. We think the only reasonable and workable interpretation to place on the above provision is that Dr. Cole (in this instance) had to present his bill or claim at least before his claim was finally processed. In this case that date is fixed as December 12, 1958 which was the last day claimant had to appeal from the award of the Referee. Any other interpretation would amount to a nullification of the one year statute of limitations. No one can reasonably contend that a doctor could, by carelessness or connivance, keep the case in suspense for an unlimited time by merely failing to present his bill to the Commission. It seems perfectly obvious that the primary purpose of the one year statute of limitations is to give the claimant that much extra time in which to decide whether he has been fully compensated for his injury, and not for the purpose of paying belated medical bills. The decisive issue therefore is: Does the record show any unpaid bills for which' appellees were liable and which were filed with the Commission before December 12, 1958. Dr. Hundley’s bill can be eliminated (as it was by the Commission and the Circuit Court) on the ground that his services were engaged by claimant’s attorney in preparation for a hearing, and therefore not a responsibility of appellees.

Dr. Cole’s bill presents a different situation. Regardless of whether or not Dr. Cole rendered services chargeable to appellees for which he has not been paid, we fail to find any substantial evidence in the record to show he filed his claim with the Commission prior to November 12, 1958. The testimony of claimant was that he talked with the Commission about the bill after the award, that is, after November 12, 1958. He said he checked with the Commission and they first said it had been paid, and that later they checked and said it had not been paid. At no time and in no way did claimant or any of his witnesses attempt to say Dr. Cole’s bill was duly filed with the Commission. In our opinion the burden was on claimant to make such showing since otherwise his claim was obviously barred by the one year statute of limitations. This burden on appellant becomes more apparent when we consider the positive testimony introduced by appellees. At the hearing before the full commission a letter was dated September. 23, 1960 from the Arkansas Claim Office of the insurer addressed to appellees ’ attorney, regarding this claim, was introduced in evidence without objection. It reads: “Attached is photo copy of the only bill Dr. Cole ever submitted to us in connection with this claim. It was paid January 10, 1956.”

It is our conclusion from all that has been heretofore said that appellant was barred by the statute of limitations. This conclusion confirms the judgment of the Circuit Court and also the Commission. We find no inconsistency in this opinion and the finding by the Circuit Court and the Commission that appellees are indebted to Dr. Cole in the amount stated. We think the Commission has the authority to order payment of a just claim regardless of whether it was filed in accordance with § 81-1311 above mentioned.

Affirmed.

McFaddin, and Johnson, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

dissenting.

In Ward Furniture Manufacturing Company v. Feather, 234 Ark. 151, 350 S. W. 2d 691, we affirmed the judgment of the Circuit Court which returned a case to the Workmen’s Compensation Commission for further development. I am strongly of the opinion that the same course should be pursued in the case at bar because there are several matters absent from the record in the present case. On the record here before us, I cannot vote to deny the worker his claim for compensation.

The Majority Opinion says: ‘ ‘ Our view is, that if the claim is not barred by limitations the cause would have to be remanded to the Commission to give claimant an opportunity to produce the required evidence” (to connect claimant’s present condition to the original trauma). I agree with the foregoing statement, and learned counsel for appellee so conceded in the oral argument before this Court. But the Majority holds that Mr. Phillips’ present claim (i.e., the one filed with the Commission on January 18, 1960) is barred by limitations; and it is from such holding that I dissent.

On appeal from the Referee, the Full Commission held that the claim was not barred by limitations, saying:

“The Referee was in error in holding that the claim was barred by limitations. The determination of the degree of permanent partial disability of the claimant was not made by the Referee until November 12, 1958. The period covered by the degree of disability determined extended for 56 1/4 weeks. This period did not end until about December 15, 1959, and the claim was filed January 18, 1960. Furthermore, not all of the doctor’s bill due Dr. John W. Cole has been paid.”

Thus, the Commission assigned two reasons for holding that the claim was not barred: (a) the award of November 12, 1958 was prospective and did not expire until December 15, 1959; and (b) all of the bill due Dr. John W. Cole had not been paid by the employer. I desire to discuss these two findings made by the Commission, each of which is reversed by the Majority Opinion.

(a) The Award of November 12, 1958 Was Prospective. In holding that the Commission was in error when it said that the payments due under the award of November 12, 1958 were prospective, the Majority Opinion says: “Also, there can be no doubt that the $1,406.25 payment was to take care of payments already accrued and not for future accruals. ’ ’ I cannot see how the Majority can be so positive in the above quoted statement when the Majority Opinion had previously recited: “A record of the proceedings before Referee Calhoun is not contained in the record before us.” How can the Majority be so positive that the payments under the award of November 12, 1958 were not prospective, as the Commission found, when the Majority does not have in the present transcript a copy of the award made by Referee Calhoun on November 12, 1958! The Commission certainly had in its files the original award made by Referee Calhoun in 1958; and, based on that award, the Commission held in this case that the payments were prospective. Does the Majority mean to say that, as a matter of law, an award by the Referee could never be prospective! Unless the Majority goes to that extent, it is overruling the Commission on a question of fact when the record evidence (on which the Commission could have based its ruling) is not before us. So I cannot agree with the Majority Opinion, when it holds that the award was not prospective.

(b) All of Dr. Cole’s Bill Had Not Been Paid By The Employer. The Commission held that all of Dr. Cole’s bill had not been paid by the employer; and the Majority is reversing the Commission on this question of fact. In the hearing before the Pull Commission, Mr. Phillips testified regarding Dr. Cole’s bill:

“A. It hasn’t been paid and the time I got it, Mr. Calhoun was in charge then and he asked me to get receipts from all druggists that I owed and doctors. And I got a receipt from the Cole Drug Company, from the Millard Drug Company at Malvern, from the Parker Drug Company at Benton. And they were all paid except Dr. Cole.
Q. Dr. Cole’s bill hasn’t been paid yet?
A. No, sir.
Q. And you’ve talked to him recently about that?
A. Yes, sir.”

So, we have in the record now before us the positive testimony of Mr. Phillips that he got Dr. Cole’s unpaid bill in accordance with instructions from Referee Calhoun, and that the said bill had not been paid. With that positive testimony in the record the Commission found that the bill was unpaid, yet the Majority is reversing; the Commission on this fact question!

The last item in the record before the Pull Commission was the remark by Mr. Bray’s attorney, which is as follows:

“Chairman Pope: Do you have anything, Mr, Eiffel?

Mr. Eiffel: No, sir. I haven’t got anything. I note on our Pinal Eeceipt that — looks like $112.67 in total medical expenses were paid. I don’t know what that’s for. We did send him to several other doctors. I guess that’s the twenty-four dollars they paid to Cole plus the rest of them.

Chairman Pope: Well, let the matter be submitted. ’ ’

This last copied item speaks volumes. The Workmen’s Compensation law requires in § 81-1319 (h) Ark. Stats:

“Within thirty (30) days after the final payment of compensation has been made, the employer shall send to the Commission a notice, in accordance with a form prescribed by the Commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid . . .”

That some such final receipt was filed with the Commission is shown by the last colloquy above; but that final receipt is not in this record before us. The Commission had that final receipt before it; and, from that receipt, could have reached the conclusion that Dr. Cole got only $24.00 on his bill and that the remainder had not been paid. In other words, the Commission could have reached the conclusion that there was still $30.00 left unpaid, just as Mr. Phillips has contended all the time. If that $30.00 was shown as unpaid, then the claim is not barred!

The Commission, had before it at least two documents that we do not have: (a) Referee Calhoun’s award of November 12, 1958, and (b) the final receipt. With these documents before it, the Commission made a factual finding that the claim of Mr. Phillips was not barred. This Court should not reverse the Commission on a fact issue when we do not have all the facts before us that the Commission had before it.

Therefore, I dissent from the holding of the Majority and maintain that this claim should be sent back to the Commission for further development, just as was done in Ward Furniture Manufacturing Company v. Reather, first cited herein.

       This claim was filed with the Commission and not “before a Referée, Mathis” as stated in the Majority Opinion.

       The only thing that the Majority has is a “Statement of the Case” made by Referee Thomasson on September 19, 1960, which reads: “Several hearings in this cause culminated in an opinion dated November 12, 1958, in which Referee J. R. Calhoun found that the claimant had a 12 and % per cent permanent partial disability to the body as a whole and awarded him compensation at the rate of $25.00 per week for 56 and 14 weeks, in addition to all reasonable medical expenses incurred as a result of his injury.”

      It was also shown by Mr. Phillips’ attorney that there had been a continuous effort to collect Dr. Cole’s bill from Mr. Bray. In the colloquy before the Commission, it developed that Mr. Phillips’ attorney had sued Mr. Bray in the Circuit Court for the balance of Dr. Cole’s bill; and the Circuit Court held that it did not have jurisdiction because the bill was to be paid through the Workmen’s Compensation Commission.


text:
    Co-Ark. Construction Co. v. Amsler, Judge.
    5-2496
    352 S. W. 2d 74
    Opinion delivered November 20, 1961.
    [Rehearing denied January 8, 1962.]

      Barber, Henry Thurman ds McCaskill, for appellant.

      Williams & Gardner, for appellee.
   Jim Johnson, Associate Justice.

The issue in this case is whether a writ of prohibition shall be granted. Petitioner, Co-Ark. Construction Company, Inc., seeks the Writ to Prevent the Circuit Court of Perry County from hearing this case alleging that such Court does not have jurisdiction to determine the cause of action since the Workmen’s Compensation Commission has exclusive jurisdiction of the claim of June Evelyn Cody, Administratrix, et al.

On October 12, 1960, Calvin Cody (deceased) was employed by Co-Ark. Construction Company, Inc., to haul rock in his dump truck and deliver it to a location on the Arkansas River. On the same day Cody was fatally injured when a cable attached to the front end of his truck broke causing his truck to overturn.

In a letter dated December 2, 1960, copy of which was mailed to Mrs. Cody, the insurance carrier of Co-Ark. requested that a hearing be set before the Referee of the Workmen’s Compensation Commission to determine dependency and to establish the average iveddy wage. The Workmen’s Compensation Commission sent a notice of the hearing to the respective parties, stating that the hearing would be held January 9, 1961, “to determine who are dependents of the deceased.” Mrs. Cody appeared at the hearing but was not represented by counsel.

Even though the hearing before the Workmen’s Compensation Referee was instigated entirely by the insurance carrier and such hearing was limited by the Commission to the questions of dependency and average weekly wage, the Referee not only made findings relative to those matters but went further and found that the worker, Calvin Cody, was an employee of Co-Ark. Construction Company on the date of his death; that Cody sustained an accidental injury arising out of and in the course of his employment and directed the insurance carrier to pay maximum compensation benefits to Cody’s widow and the two children.

A Petition for Review by the Pull Commission was filed by Mrs. Cody objecting to and appealing from the findings of the Referee.

Meanwhile, on February 20, 1961, a complaint at law was filed in the Circuit Court of Perry County by Mrs. Cody alleging that Calvin Cody was an independent contractor and sued for damages due to the negligence of Co-Ark’s, employees. Co-Ark. Construction Company, Inc., filed a Motion to Dismiss the complaint alleging that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction of the matter.

On April 5, 1961, the Circuit Court of Perry County rendered its Order overruling the Motion to Dismiss, from which comes the Petition for Writ of Prohibition.

This Court has repeatedly held that prohibition will not be granted in any case where the jurisdiction of the court is dependent upon the determination of contested facts. See: Clement v. Williams, Chancellor, 227 Ark. 199, 297 S. W. 2d 656; Twin City Lines, Inc., v. Cummings, Judge, 212 Ark. 569, 206 S. W. 2d 438; Murphy v. Trimble, 200 Ark. 1173, 143 S. W. 2d 534; Metropolitan Life Ins. Co. v. Jones, 192 Ark. 1145, 97 S. W. 2d 64; Stockburger v. Combs, 190 Ark. 338, 78 S. W. 2d 816; Merchants & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. 2d 421.

In the instant case, the jurisdiction of the Circuit Court is dependent upon the establishment of the worker’s status, i.e., the question of fact as to whether he was an independent contractor, or whether he was an employee of Co-Ark. Construction Company. This finding of fact will determine the forum of adjudication of this cause.

It follows, therefore, that the Circuit Court of Perry County has jurisdiction to determine the fact question as to the worker’s status in the trial of the cause there pending, and to issue such orders to the parties, upon proper petition, to stay the proceedings before the Workmen’s Compensation Commission until the case is decided in the Circuit Court. If it should be found in the Circuit Court that the worker was in fact an employee of Co-Ark. Construction and not an independent contractor, then upon further determination by the Workmen’s Compensation Commission the employer or carrier will be entitled to claim the allowance provided for such situations as set out in § 81-1318 (3) of the Workmen’s Compensation Act.

Writ of Prohibition denied.