author: John A. Fogleman, Justice.

text:
    BARKSDALE LUMBER COMPANY et al v. Lois McANALLY
    77-191
    557 S.W. 2d 868
    Opinion delivered November 7, 1977
    (Division II)
    [Rehearing denied December 19, 1977.]

      Gene Matthews, Jr., of Wootton, Land & Matthews, for appellants.

      Travis Mathis, for appellee.
   John A. Fogleman, Justice.

Arthur Dale McAnally collapsed and died at his place of employment with Barksdale Lumber Company on August 6, 1973. He left appellee as his widow. The Workmen’s Compensation Commission allowed her claim for death benefits under the Workmen’s Compensation Act. Appellants contend that the Commission acted in excess of its powers, because the facts found by it do not support the award and because the competent evidence in the record was not sufficient to warrant its being made. Appellants concede that the sole issue is whether McAnally’s employment caused the heart attack he suffered and his resulting death. Essentially, the question is whether there is any substantial evidence to support the finding of the Workmen’s Compensation Commission (affirmed by the circuit court), that McAnally’s death resulted from an accidental injury arising out of and in the course of his employment. We find that there is, and affirm.

On the day of his death, McAnally had been performing his usual duties, which consisted of laying wood strips across lumber as it was stacked by an automatic stacking machine controlled by a co-worker, who was also laying strips. The strips were 7 feet long, 1 Vi inches wide and about 3/4 inches thick and were accumulated on a rack behind a platform on which McAnally worked. The five strips laid by McAnally between each layer of lumber weighed about 12 pounds 11 ounces in all. McAnally performed his regular duties on the morning of his death prior to the 11:30 to 12:30 lunch hour. After the lunch hour, and during a stoppage of the work about 1:00 p.m., he had walked to a point where some of the strips had become disarranged as they were being' transported to his work station. After straightening the strips, he returned to the platform on which he worked and was talking with his co-worker, Pearlie Mae Harris, when he collapsed and died.

McAnally had been under treatment by Dr. Driver Rowland, a cardiologist of Hot Springs, between February 1, 1972 and June 1, 1973, for pains in his chest with radiation into his arms, diagnosed as angina pectoris, first precipitated by exertion at his work. Later, these attacks occurred both with and without exertion and were related, on occasion, to emotional upset. It was determined that McAnally, who was 61 years of age when he died, had arteriosclerotic heart disease involving the coronary arteries. Medical testimony as to the cause of death was given by two physicians. They were Dr. Driver Rowland and Dr. Eli Gary, a general practitioner at Arkadelphia, who had never treated McAnally and had not been acquainted with him. Dr. Rowland testified that McAnally’s work did not precipitate the heart attack or aggravate his condition or cause his death. Dr. Gary expressed the opinion that McAnally’s work did cause or contribute to his death. The death certificate, made by Dr. W. R. Keddle of Greenwood showed the cause of death as myocardial infarction.

McAnally’s widow testified that he had been experiencing pain during the week previous to his death, that he had eaten little on the morning of his death and the evening before, and that he had complained of pain in his chest when he left home, going to work. She said that, after his first episode of pain, McAnally was able to do less and less as time progressed, and had ceased mowing his lawn and doing other chores around the house. Pearlie Mae Harris testified that, while McAnally never complained about any difficulty in doing his work, she could tell that at times he was “kindly tired.” Tommy Barksdale testified that, while for someone unaccustomed to it, the work was “pretty fast,” the more one did it, the more routine it became. He said the work was actually not heavy or strenuous but more strenuous than sitting.

Appellants recognize the governing rules stated in Bettendorf & Company v. Kelly, 229 Ark. 672, 317 S.W. 2d 708, and many other cases, that an accidental injury arises out of employment when the required exertion which produces the injury, as the sole or a contributing cause, is too great for the person undertaking the work, whatever the degree of exertion or the claimant’s condition of health and that an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary. Appellants, however, argue that the lay testimony does not constitute substantial evidence that McAnaliy’s heart attack was an accident that occurred by reason of and in the course of his employment and that the medical testimony is the only evidence to be considered in determining the question. Assuming, without deciding, that appellants are correct in their evaluation of the lay testimony, we cannot say that there was no substantial evidence to support the commission’s finding on this question.

Appellants contend that we should reverse the award in this case because Dr. Rowland, on whose opinion they rely, was an eminent cardiologist and McAnally’s treating physician, while Dr. Gary was a general practitioner, who, having never seen the patient, stated an opinion based upon an assumption that the history of McAnally’s arteriosclerotic heart disease and its symptoms and manifestations had been correctly given, and who recognized Dr. Rowland’s expertise and would give great weight to the treating physician’s opinion over his own.

Appellants are apparently laboring under some misconceptions that we must lay aside in approaching the basic problems. Their argument is directed almost entirely toward the proposition that the claimant failed to meet her burden of proof that the heart attack was an accident, occurring by reason of, or in the course of, McAnally’s employment, by a preponderance of the evidence. This question is of no moment to us, because that determination is for the commission and we affirm if there is any substantial evidence to support the commission’s ultimate finding that the heart attack was, in fact, an accidental injury arising out of, and in the course of his employment. Reynolds Metals Co. v. Cash, 239 Ark. 489, 390 S.W. 2d 100; Turner v. Lambert Construction Co., 258 Ark. 333, 524 S.W. 2d 465; Arkansas Foundry Co. v. Cody, 251 Ark. 57, 470 S.W. 2d 812; Reynolds Metals Co. v. Cain, 243 Ark. 483, 420 S.W. 2d 872; Olin Mathieson Chemical Co. v. White, 239 Ark. 833, 394 S.W. 2d 632. The commission’s finding in this respect has the same force and effect as a jury verdict, so we cannot reverse the commission’s findings, unless we could reverse a judgment based upon a jury verdict on the same question. Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W. 2d 863; Warwick Electronics, Inc. v. Devazier, 253 Ark. 1100, 490 S.W. 2d 792; Arkansas Coal Co. v. Steele, 237 Ark. 727, 375 S.W. 2d 673.

We agree with appellants that Dr. Rowland’s qualifications are impressive and entitled to great weight and, were we privileged to weigh the evidence on trial de novo, we might well agree that the preponderance of the medical evidence showed that McAnally’s fatal heart attack was not an accident that occurred by reason of and in the course of his employment, and that the fact his death occurred while he was at work was merely a coincidence. Still, as we have pointed out, this is not within our province. See also, Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W. 2d 408. It is quite clear that the evidence would support a finding contrary to that made by the commission, but the question before üs turns solely upon the existence of substantial evidence to support the award made, even though the commission has resolved all inferences in favor of the claimant and had given the evidence the most liberal construction possible in favor of the claimant. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950; Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S.W. 2d 304.

In determining whether the evidence was substantial, we must consider only that evidence which is most favorable to the commission’s finding, and view, weigh and interpret it along with all reasonable inferences deducible therefrom, in the light most favorable to those findings. Clark v. Shiloh Tank & Erection Co., 259 Ark. 521, 534 S.W. 2d 240; Westark Specialities, Inc. v. Lindsey, 259 Ark. 351, 352 S.W. 2d 757; Pufahl v. Tamak Gas Products Co., 238 Ark. 895, 385 S.W. 2d 640; Superior Improvement Co. v. Hignight, 254 Ark. 328, 493 S.W. 424; Warwick Electronics, Inc. v. Devazier, supra. It will be given its strongest probative force in favor of the commission’s action. Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S.W. 2d 822.

Viewing it as we must, the evidence, except for the conflict in the medical testimony, shows:

McAnally had first experienced the pains symptomatic of his condition in 1972, and he continued to have them intermittently until his death, sometimes as the result of exertion and sometimes not. He was then found to have hypertension and coronary artery disease, also known as arteriosclerotic heart disease, involving the coronary arteries. He had probably suffered a myocardial infarction at that time. His condition gradually became more severe and his symptoms more easily produced by less exertion. This was compatible with his disease. In such cases, the victim reaches the point where he is disabled, even at rest. With this disease, the flow of blood to the heart is curtailed. It was after the onset of the first symptoms, that McAnally ceased mowing his lawn and doing chores around the house. He often complained of pain in the morning before he went to work and, more often, in the evening after work, when he would sit on his doorstep for a while before going into the house. Before his death, he was eating little. He complained of pain in his chest when he left home on the morning of his death. There were times when he showed signs of fatigue at his work. One’s body requires a greater supply of blood and oxygen for acts of physical exertion, such as walking, than for sitting.

Dr. Gary testified that, in his opinion, McAnally’s arteriosclerotic heart disease cut down the circulation of his blood and its supply to his heart, and that the greater the exertion, the worse the condition became, because the heart requires more blood when one is working; and, if it does not get enough blood, a myocardial infarction would result. He agreed with the statement of Dr. Rowland that an arteriosclerotic heart condition often reached the point where any exertion would create too great a demand on the heart for oxygen and can be so severe that the patient becomes disabled even at rest, much less slight exertion. He suspected that the work McAnally was doing may have been, to a reasonable degree of certainty, a contributing cause of his death, and, in his opinion, he thought it was. It appeared to Dr. Gary that the demand created by the exertion of McAnally’s employment on the day of his death was greater than the heart could supply. He said that the fact that McAnally’s collapse actually occurred when he was standing and talking and not performing any of the duties of his employment was not unusual because the acute effects of a myocardial infarction may not appear for 30 or 40 minutes after it actually occurs and that, in McAnally’s case, it could have actually occurred before the lunch hour.

Weighing the evidence fell within the province of the commission. In doing so, it must necessarily weigh medical evidence as it does any other evidence. When medical testimony is conflicting, the resolution of the conflict is a question of fact for the commission. Turner v. Lambert Construction Co., supra; Grimsley v. Manufacturer’s Furniture Co., 224 Ark. 769, 276 S.W. 2d 64; Mechanics Lumber Co. v. Roark, 216 Ark. 242, 224 S.W. 2d 806. When the commission chooses to accept the testimony of one physician in such cases, the courts are powerless to reverse the commission’s conclusion in this regard. Arkansas Workmen’s Compensation Comm’n v. Sandy, 217 Ark. 821, 233 S.W. 2d 382; Mechanics Lumber Co. v. Roark, supra.

It is extremely difficult to come to grips with appellants’ argument that Dr. Gary’s testimony is not substantial evidence. It is tacked on to their argument that the commission’s finding was clearly against the preponderance of the evidence at the very end of appellants’ brief, as if it were an afterthought. The only argument advanced is that reasonable men would not believe the testimony of Dr. Gary over that of Dr. Rowland. A similar argument was advanced and rejected in McCloud v. Beth-Elkhorn Corp., 514 S.W. 2d 46 (Ky., 1974). Appellants do not refer to any objection they made to the testimony of Dr. Gary even though they now seem to question his competency. This is a question they cannot raise for the first time on appeal. Foster v. Ft. Smith Cotton Oil Co., 224 Ark. 394, 273 S.W. 2d 529. Dr. Gary testified that he had been engaged in the general practice of medicine in Arkadelphia for about 23 years and had treated quite a few heart cases.

We assume that the same arguments advanced in support of appellants’ contentions on the preponderance of the evidence are also directed toward its substantiality. One of these attacks is that Dr. Gary was not the treating physician. This factor goes to the weight to be given to the testimony, not its substantiality, unless, of course, the doctor’s opinion, unlike that of Dr. Gary, was based upon a mistake of fact or arrived at without information as to a factor essential to his conclusion. See Rhea v. M.-K. Grocer Co., 236 Ark. 615, 370 S.W. 2d 33; Holstein v. Quality Excelsior Coal Co., 230 Ark. 758, 324 S.W. 2d 529; Backstrom v. Turner Construction Co., 284 App. Div. 368, 132 N.Y.S. 2d 126 (1954). Where an injury or disease is such as to require a person skilled in medicine to determine its cause, a medical expert may testify to his opinion thereof based upon his scientific deductions from given facts. Bethlehem-Sparrow Point Shipyard v. Scherpenisse, 187 Md. 375, 50 A. 2d 256 (1946). A medical expert’s opinion may be based on testimony in the case or an assumed state of facts which the evidence tends to establish. Excelsior Leather Washer Co. v. Industrial Commission, 54 Ill. 2d 318, 297 N.E. 2d 158 (1973); Texas State Highway Dept. v. Fillmon, 150 Tex. 460, 242 S.W. 2d 172 (1951); Accord, Ben M. Hogan Co., Inc. v. Nichols, 254 Ark. 771, 496 S.W. 2d 404; Williams v. Cantwell, 114 Ark. 542, 170 S.W. 250. Where a medical expert witness gives an opinion based upon facts established by the record upon a matter recognized as a proper subject of expert opinion, it is ordinarily sufficient to sustain an award, unless impeached to such an extent as to have no probative value. Martin v. Frear, 184 Neb. 266, 167 N.W. 2d 69 (1969). See also, Chapman v. Foremost Dairies, Inc., 249 S.C. 438, 154 S.E. 2d 845 (1967). The fact that Dr. Gary never examined McAnally was a matter going to the weight to be given his testimony, but its probative value was not necessarily destroyed. Anderson v. Campbell Tile Co., 202 S.C. 54, 24 S.E. 2d 104 (1943).

The fact that he was a general practitioner, rather than a specialist in heart diseases, also is a matter relating to the weight of his testimony and its probative force, rather than its substantiality, at least where the matter in question was not totally outside the field of his practice. Board of Public Education v. Rimlinger, 232 A. 2d 98 (Del., 1967); McCloud v. Beth-Elkhorn Corp., supra; Hamilton v. Doty, 65 N.M. 270, 335 P. 2d 1067 (1958); Cabell Concrete Block Co. v. Yarborough, 192 Md. 360, 64 A. 2d 292 (1948); In re Ambrose’s Case, 335 Mass. 121, 138 N.E. 2d 630 (1956). See also, Haynes v. Industrial Commission, 19 Ariz. App. 559, 509 P. 2d 631 (1973); Theodore Fleisner v. Dept. of Industry, 65 Wis. 2d 317, 222 N.W. 2d 600 (1974). Cf. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W. 2d 643 (1965). Qualifications of a physician who is without special training with reference to the particular disease or condition are a matter for the commission. In re Ambrose’s Case, supra.

The fact that Dr. Gary’s testimony may have been erroneous and in conflict with the opinions of more celebrated experts does not destroy its probative value or make it incredible as a matter of law, where it is not so contrary to common sense or so clearly based upon conjecture that it must be disregarded. Bohan v. Lord & Keenan, 98 N.H. 144, 95 A. 2d 786 (1953); Murphy’s Case, 328 Mass. 301, 103 N.E. 2d 267 (1952); Smith v. Southern Builders, 202 S.C. 88, 24 S.E. 2d 109 (1943).

In its admission and consideration of the evidence, including the medical testimony, the commission was not bound by the rules of evidence that might have applied in a civil action. Instead, it was free to make such inquiry and to conduct the hearing in such manner as would best ascertain the rights of the parties. Ark. Stat. Ann. § 81-1327 (a) (Repl. 1976). We have said that the commission has broad discretion with reference to admission of evidence. Northwestern National Insurance Co. v. Weast, 253 Ark. 710, 488 S.W. 2d 322 (1972).

Our statute provides that verified medical reports shall be accorded such weight as may be warranted from all the evidence in the case. Ark. Stat. Ann. § 81-1323 (c) (Repl. 1976). Although the statute seems to have specific application to verified reports, the principle is in accord with the weight of authority holding that, when medical opinions conflict, the commission may resolve the conflict in the light of the record as a whole, and, in that light, reach the result that accords with reason, justice and common sense. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W. 2d 22 (1949); Buda v. Industrial Commission, 377 Ill. 215, 36 N.E. 2d 253 (1941); Gunther v. Strachan Shipping Co., 85 So. 2d 543 (La. App., 1956); Fisher v. Buffalo Electric Co., Inc., 2 A.D. 2d 612, 151 N.Y.S. 2d 959 (1956). This statutory principle should apply to all medical evidence.

The medical soundness and probative force of Dr. Gary’s testimony was a question for the commission. Smith v. Southern Builders, supra; Johnson v. Gulfport Laundry & Cleaning Co., 249 Miss. 11, 162 So. 2d 859 (1964).

The gist of the whole matter is succinctly stated by Prof. Larson thus at 3 Larson’s Workmen’s Compensation Law 15-413, § 80.20:

In summing up the problem of conflicting medical testimony, one may recall Alexander Pope’s famous line in which he asks: “Who shall decide when doctors disagree?” In workmen’s compensation the answer is easy: The Commission decides.

Since we cannot say that the testimony of Dr. Gary was without any probative value, we must affirm the judgment.

We agree. Harris, C.J., and Holt and Hickman, JJ.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Henry NELSON v. STATE of Arkansas
    CR 77-148
    557 S.W. 2d 191
    Opinion delivered November 7, 1977
    (Division II)

      Bill Webster and Anthony Bartels, for appellant.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant, who received a ten year sentence on a rape conviction, contends the court erred when it denied his request for a copy of a pretrial statement of the prosecuting witness after that witness had testified on direct examination. The prosecutor objected to the request on the ground that he had furnished appellant an opportunity to examine his files and the statement before trial. The court denied appellant’s request citing Crim. Proc., Rule 17 (1976). However, the appellant responded that Ark. Stat. Ann. § 43-2011.3 (b) (Supp. 1975) requires that the defendant have the right to the statement of the prosecutrix for purposes of cross-examination of the witness. The statute reads:

After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the state to produce any statement (as hereinafter defined) of the witness in the possession of the state which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

Here it appears undisputed that a statement of the prosecuting witness existed and was in the possession of the prosecutor. A material and crucial issue in the case was the credibility of this witness in determining the guilt or innocence of the appellant. In the circumstances it was mandatory that the statement be furnished to the appellant for cross-examination purposes if it related to the subject matter about which the witness testified.

Appellant next contends that there was no proof of forcible compulsion as required by Ark. Crim. Code § 41-1803 (1) (a) (1976) and, therefore, the evidence is insufficient to support the verdict. That statute reads in pertinent part: “A person commits rape if he engages in sexual intercourse .... with another,person ... by forcible compulsion.” § 41-1801 (2) reads: “ ‘Forcible compulsion’ means physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person.”

It appears that the prosecuting witness’ mother and appellant lived together, though not married, for about five years before the mother died. The prosecuting witness, then six years old, and her sister continued to reside with appellant and for the last year resided alone with him. During the last five months of this time, the witness, then twelve years of age, testified that she submitted to appellant’s sexual advances because she “was afraid he was going to have another heart attack.” She was scared of him on one occasion when she refused appellant’s advances by locking him out of her room. Appellant then banged on the door and stated, “Tammy if you don’t open this door so help me.” She then unlocked the door because “I was afraid that if I didn’t let him in after he said ‘so help me’ that he would keep on doing it. Like twice a night or so instead of once a night.” However, after unlocking the door, she refused to let appellant touch her and he left the room. Further, the appellant never physically injured her and never threatened to do so at any time. In summary she was afraid of what would happen to appellant; i.e., he would have another heart attack. Appellant denied ever engaging in any sexual activity with her or that he talked with the prosecutrix about his heart condition.

When we view this evidence in the light most favorable to the state, as we must do, we cannot say it is sufficient to demonstrate there was forcible compulsion by either physical force or a threat, either express or implied, of death or physical injury to the prosecutrix or another person. We do not construe the words “any person” in § 41-1801 (2), supra, to include the alleged attacker.

Since there was error in refusing the appellant the use of the pretrial statement of the state’s witness for cross-examination purposes and the evidence, in its present posture, is deficient, the judgment is reversed and the cause remanded.

Reversed and remanded.

We agree: Harris, C.J., and George Rose Smith and Fogleman, JJ.


author: Elsijane T. Roy, Justice.

text:
    STATE of Arkansas v. Marshall Neal BULLOCK
    CR 77-144
    557 S.W. 2d 193
    Opinion delivered November 7, 1977
    (Division I)

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellant.

      Williams & Gardner, for appellee.
   Elsijane T. Roy, Justice.

Appellee Marshall Neal Bullock was charged by information with sexual abuse in the first degree under Ark. Grim. Code § 41-1808 (1976). After entering a plea of not guilty at the preliminary hearing on December 13, 1976, appellee was given a polygraph test on December 28, 1976. The State’s motion in limine seeking to exclude the results of the test was denied by the trial court which held that the results of the polygraph test should be admitted into evidence.

The court’s order stated inter alia:

That the polygraph test was taken on the representation by the Prosecuting Attorney’s Office that if the Defendant would submit to the test the charges against him would possibly be dropped; that no written agreement was entered into between the parties but the Court finds that the Defendant submitted to the test believing that if it developed that he was truthful that the charges would be dropped and in doing so was misled into submitting to the said test and that the results thereof should now be admitted in the course of the trial as evidence in the case for whatever value that evidence may be.
The trial court also said:
***... I want the record to further reflect that I am not finding as a fact that the State promised the defense what they would allow if the defendant passed the test; nor am I finding that the defendant agreed to permit the introduction of it, had he flunked the exam. I think this is one of those instances where there was a lack of communication more than anything else, between counsel at the time. I don’t want this to be precedent for any future cases that may arise, because this is a highly unusual and exceptional circumstance. * * *

Pursuant to Rules of Crim. Proc., Rule 36.10 (1976), the State brings this appeal from the interlocutory order of the trial court. The State alleges that the results of the test are inadmissible because the polygraph test has not achieved scientific acceptance as a reliable and accurate means of ascertaining truth or deception. It is also alleged that the absence of a stipulation between the parties regarding the use to be made of the test results further precludes admission.

Appellee contends the prosecuting attorney informed his defense counsel that if he (Bullock) would submit to a lie detector test and the results indicated he was not guilty, the charges against him would be dismissed. The State denies that any such agreement was reached. Both attorneys testified at the hearing on this issue:

MR. WILLIAMS [Defense counsel]: * * * Mr. Shermer proposed to me that they had in the past given polygraph test to people in similar circumstances and if he came clear on the test, they would dismiss the charges against him. He proposed that Bullock take this test. * * *
PROSECUTOR: * * * I did ask him [Mr. Williams] to tell him [appellee] that I would like to have the polygraph test to help me make that decision. At no time did we ever discuss the — there were no stipulations made, no agreement was made. I did make a statement that at times the possibility existed that the charges might be dismissed. I didn’t at any time tell him that the charges would be dismissed. * * *

In both Lang v. State, 258 Ark. 504, 527 S.W. 2d 900 (1975), and Foots v. State, 258 Ark. 507, 528 S.W. 2d 135 (1975), we held the trial court properly refused to admit the results of a lie detector test because the test was administered before the written stipulation was made.

McCormick on Evidence, § 207 (2d Ed. 1972) states the general rule traditionally holds that the results of a lie detector test showing opinion and supporting data are inadmissible when offered either as substantive evidence or as relating to the credibility of a witness. Several reasons have been advanced for the exclusion of polygraph evidence. According to McCormick, supra, “The exclusion seems to rest more upon a judicial estimate of the weight that the trier of fact will give to the opinion, and a demand that the opinion be almost infallible because the trier will think it so. ” (McCormick, supra, at p. 507). In other words, it has been suggested that “even with accurate tests and qualified operators, there is an inherent danger that the jury will rely too heavily on the results of the tests.” Note, The Emergence of the Polygraph at Trial, 73 Colum. L. Rev. 1120, 1125 (1973).

One recognized exception to this general rule of exclusion is that the results may be used when the parties have entered into an “adequate stipulation to that effect.” McCormick, supra, § 207. Arizona is among the jurisdictions which permit the results to be used under these circumstances. There the State Supreme Court in a well reasoned and exhaustive opinion, State v. Valdez, 91 Ariz. 274, 371 P. 2d 894 (1962), held that polygraph evidence and its relevant expert testimony were admissible in criminal cases upon stipulation subject to certain qualifications which were enunciated in the opinion. The first qualification listed stated:

(1) That the county attorney, defendant and his counsel all sign a written stipulation providing for defendant’s submission to the test and for the subsequent admission at trial of the graphs and the examiner’s opinion thereon on behalf of either defendant or the state.

In the instant case the prosecuting attorney approached appellee’s counsel on October 8, 1976, stating he had serious questions about the case and he did not want to unjustly file any charges. He then requested that appellee take a polygraph test. On November 2, 1976, defense counsel informed the prosecutor of appellee’s refusal to submit to the examination. Charges were filed against appellee the next day, November 3. Later, appellee agreed to take the test and it was administered on December 28, 1976.

It is undisputed that there was no written agreement as to the use to be made of the test results. The record discloses that not only was there dispute as to the terms of any oral agreement made by the parties but also whether any agreement was reached at all.

Appellee’s defense attorney testified that he was never misled in any way by the prosecutor’s statements regarding the use to be made of the test results. Rather, he stated that his client (appellee) had been misled by the information he (the defense attorney) had passed on to him. Since appellee’s counsel apparently understood the statements made by the prosecutor, he had a duty to fully explain them to his client and prevent the occurrence of any misunderstanding.

The trial court did not find any binding agreement was made by the parties that the results of the polygraph examination would be admissible. Accordingly the ruling that the results should be admissible is reversed.

We agree. Harris, C.J., and George Rose Smith and Fogleman, JJ.

       To help decide whether to file charges against appellee.


author: Darrell Hickman, Justice.

text:
    TRAVELERS INSURANCE COMPANY & MANPOWER, INC. v. Jimmy Lee PERRY
    77-250
    557 S.W. 2d 200
    Opinion delivered November 7, 1977
    (Division I)

      Byron S. Southern, of Southern, Alexander & Gunter, for appellants.

      James F. O’Hara, for appellee.
   Darrell Hickman, Justice.

This is an appeal from a Workmen’s Compensation case. The only issue before us questions the finding by the Commission, affirmed by the circuit court, that the claimant had an average wage of $88.00 a week.

We find no substantial evidence to support this finding and, therefore, reverse the judgment entered.

It is undisputed that Jimmy Lee Perry was injured in the course of his employment. The administrative trial judge determined that he should receive the minimum benefits of $15.00 a week during the period of his disability. This award was based on a finding that Perry’s average weekly wage was $30.00 a week.

The Workmen’s Compensation Commission disagreed with the finding of the administrative judge and found that Perry’s average weekly wage was $88.00 a week thereby entitling him to compensation of $57.20 a week. The Pulaski County Circuit Court affirmed this finding. The employer, Manpower, Inc., and its insurance company, Travelers, then appealed questioning the conclusion of the Commission as to Perry’s average weekly wage. The Commission concluded that this figure was proper because of the nature of Perry’s employment.

On May 27, 1975 Perry signed up to work for Manpower, Inc. — an organization in Pulaski County, Arkansas that provides workers for employers who need temporary help. From May 27th until July the 2nd, Perry worked only four days and was paid a total of about $63.00. His pay was $2.20 per hour. It is not disputed that Perry worked one day, the week ending June 1st; two days, the week ending June 22nd; and the day he was injured, which was July 2nd.

The Commission found that this case was very similar to the case of a lumberman who seldom worked a full five day week due to the nature of the timber industry. Gill v. Ozark Forest Products, 255 Ark. 951, 504 S.W. 2d 365 (1974). However, the facts in Gill are easily distinguished. In Gill it was undisputed that the worker had a “contract of hire in force” which provided for a 40-hour work week at an agreed rate whenever work was available. The claimant always worked when needed.

In this case there was no contract between Perry and Manpower. Perry simply made himself available for work and Manpower assigned him to an employer. Perry did not have a contract that required him to work or to be available for work.

There is a dispute as to whether Perry made himself available at all times during this six-week period for work. It is undisputed that he was only paid for a total of four days over the six-week period of time.

We find no substantial evidence to support the finding by the Commission that Perry’s average weekly wage was $88.00.

Therefore, the Commission and lower court were in error. Judgment should be entered for Perry for the minimum amount authorized by law, which is $15.00 a week.

Reversed and remanded for further action not inconsistent with this opinion.

Reversed and remanded.

We agree. Harris, C.J., and George Rose Smith and Fogleman, JJ.


text:
    STATE of Arkansas v. Richard Alan LECHNER et al
    CR 77-106
    557 S.W. 2d 195
    Opinion delivered November 7, 1977
    (In Banc)

      Bill Clinton, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellant.

      Morgan E. Welch, of Patterson & Welch, and William R. Wilson, Jr., for appellees.
   Darrell Hickman, Justice.

The state brings this interlocutory appeal pursuant to Rules 16.2(d) and 36.10 of the Arkansas Rules of Criminal Procedure (1976). The issues raised concern the identity and credibility, or reliability, of two undisclosed informants whose “leads” served as the basis for the state’s search warrant. The three defendant-appellees were charged with possession and possession with intent to deliver controlled substances after various drugs were seized pursuant to this warrant. At a pretrial hearing the trial judge ordered the state to disclose the names of the two informants. When the state refused, the trial judge quashed the search warrant and suppressed the evidence seized pursuant to the warrant. It is from this order that the state appeals.

There are two issues which we will consider: was the trial court correct in ordering the state to disclose its informants; and, was the affidavit for the search warrant constitutionally sufficient.

The trial court was in error in ordering the state to disclose its informants. The defendants were merely charged with possession with intent to deliver. If the defendants were charged with having delivered drugs to the informants, then disclosure would be necessary because the informants would be participants in the offense. In this case, disclosure of the informants’ identity was not critical to the defense and should not have been the basis for quashing the search warrant. Brothers v. State, 261 Ark. 64, 546 S.W. 2d 715 (1977).

We consider the affidavit’s sufficiency to be the controlling issue. The parties strongly disagree as to its legal sufficiency; the trial court’s ruling on it; and, whether it is a proper issue on appeal.

A police officer used information supplied by two undisclosed informants whom he asserted were reliable to show probable cause for the issuance of the search warrant. His affidavit, in relevant part, provides:

Affiant states that on 1-28-76 a reliable confidential informant, who has proven to be very reliable in the past and whose information has resulted in the arrests of two felony cases, observed in the above-mentioned residence a large quantity of amphetamines (cross-tops) and cocaine.
Affiant states that on 2-3-76 the same reliable confidential informant observed several sales of marijuana and amphetamines (cross-tops) by Richard Lechner and Troy Smith at the above-mentioned residence.
Affiant states that on 2-7-76 the same confidential informant observed sale and use of controlled substances, namely, marijuana and amphetamines.
Affiant states that on 2-16-76 the same reliable confidential informant observed a large quantity of amphetamines (cross-tops) and marijuana and also observed sales and use of these controlled substances at the above-mentioned residence.
Affiant states that on 2-16-76 he received information from another reliable confidential informant, whose information has been verified, that a large: quantity of amphetamines were at this residence.

The use of the undisclosed informant’s information was hearsay and is permissible. However, in order to satisfy the guarantees of the Fourth and Fourteenth Amendments to the United States Constitution, a test has been devised to make certain that the hearsay information supplied by an informant is more than a rumor and satisfies the requirement that a search be based upon probable cause. The so-called “two-pronged” test, which is a good test to prevent abuse, is set forth in Aguilar v. Texas, 378 U.S. 108 (1965). First, the judge who issues the search warrant must be informed of some of the facts or circumstances from which the informant concluded that narcotics or contraband could be found where he claimed they were; and, second, the judge must be informed of some of the underlying circumstances that would show or prove that the officer’s informant was “credible” or the information was “reliable.” Aguilar, supra, at 114.

Having created this test, the United States Supreme Court was immediately presented the problem of how to apply it practically and evenly to a given situation. The court rejected an informant’s “tip” when the informant had not personally observed illegal activity. Spinelli v. United States, 393 U.S. 410 (1969). The court has since retreated from Spinelli. See United States v. Harris, 403 U.S. 573 (1971). The problem in applying the “two-pronged” test was foreseen by Justice Clark in Aguilar:

. . . that the Court has substituted a rigid, academic formula for the unrigid standards of reasonableness and ‘probable cause’ .... Aguilar, supra. (Clark, J. dissenting) at 122.

It is not easy for the courts to apply this test because obviously some affidavits barely pass while others barely fail.

We can only take the language in Aguilar, use a degree of common sense, refer to our previous decisions and those of other courts, and trust that the boundaries of constitutional acceptability will become clear to those responsible for drafting and issuing search warrants.

Some boundaries have already been established. If a reliable informant personally observed the illegal goods or activities, then the first part of the test is satisfied. United States v. Ventresca, 380 U.S. 102 (1965). This “prong” may also be satisfied by corroborating the informant’s “iead” with information within the knowledge of the police officer. See United States v. Harris, supra. When an informant’s statement goes into great detail as to the place, people, contraband, types and quantity of drugs and so forth, it can satisfy this first requirement. See Harris, supra.

The real problem with these affidavits involve establishing the reliability of the informant or the credibility of his information. Obviously an informant who has produced information that has resulted in convictions in the past could be considered “reliable. ” Shackleford v. State, 261 Ark. 721, 551 S.W. 2d 205 (1977). We have held that an incriminating statement by an informant can satisfy this test. Baxter v. State, 262 Ark. 303, 556 S.W. 2d 428 (1977). The informant’s reliability may be established by information within the knowledge of the person signing the affidavit. Baxter v. State, supra. In Spinelli the court stated that a judge confronted with minute details could reasonably infer that the informant had gained information in a reliable way. Recent and personal observations by the informant of criminal activity are factors showing that the informant’s information has been gained in a reliable manner. Harris, supra; Jones v. United States, 362 U.S. 257 (1960).

However, the bare statement by a police officer that he has received information from a reliable informant is not enough to satisfy the test. Walton & Fuller v. State, 245 Ark. 84, 431 S.W. 2d 462 (1969); Byars v. State, 259 Ark. 158, 533 S.W. 2d 185 (1976).

But what of the informant who has just gone into the business or one who might be called the citizen-informer, and has no prior record of deals with the police in such matters ? This is a tough problem, and perhaps the one we have before us. In that case there must be something in the affidavit or evidence presented to show the judge that the tip can be relied upon or the informant is telling the truth. If other evidence, besides the affidavit is before the issuing judge, it must be presented under oath and a record made of that evidence. Lunsford v. State, 262 Ark. 1, 552 S.W. 2d 646 (1977); Rules of Crim. Proc., Rule 13.1 (1976).

Applying the standards set forth in Aguilar to this affidavit and comparing it to the affidavits in other cases, we hold that this affidavit is sufficient. It contains a detailed description of the type of drugs; personal observations by the informants were recent in time, the last one being made the day before the search warrant was issued; and, sales of drugs were personally observed on three different dates. One of the informants had provided information resulting in two felony arrests. The fact that two informants gave identical information concerning illegal activity on the last date mentioned in the affidavit certainly helps to satisfy the credibility requirement. See Jones v. United States, supra.

We have viewed this affidavit in a “commonsense and realistic fashion” as suggested by the United States Supreme Court. See Harris, supra. However, this approach does not mean that we will abandon the obvious requirement that there must be some substance in such affidavits. Catch phrases alone such as “reliable confidential informant, who has proven to be very reliable in the past,” carry no weight.

We reverse the order of the court ordering disclosure, hold the affidavit was sufficient, and remand the case to the trial court.

Reversed and remanded.

Byrd, J., not participating.


text:
    Tommy RIOS v. STATE of Arkansas
    CR 77-163
    557 S.W. 2d 198
    Opinion delivered November 7, 1977
    (Division I)

      Clark & Miller, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Tommy Rios was convicted in the Garland County Circuit Court of a single charge of delivery of marijuana and sentenced to three years in the state penitentiary.

He alleges two errors on appeal: the trial court erred in admitting evidence of other crimes for which he was not charged; and, the trial court refused to admit evidence of Rios’ reputation for truthfulness.

We agree with Rios that the trial court improperly admitted evidence of other crimes and, therefore, reverse.

The state’s main evidence against Rios was the testimony of Randy Wayne Brookman, an Arkansas State policeman. Brookman testified that he purchased SI 5.00 worth of marijuana from Rios on the 4th of May, 1976. Rios was charged only with this offense. Brookman was also allowed to testify, over the objections of Rios, that later that same day he had purchased some phencyclidine, or PCP, from Ribs. The state called a chemist to identify the marijuana and then rested its case. Rios presented his defense, and testified in his behalf.

After Rios had presented his case the state called Brookman back to the witness stand in rebuttal. He related that on May the 5th, the date after the original sale, he went back to Rios and purchased some more PGP. A chemist was also permitted to testify on rebuttal that he had examined a sample delivered to him by Brookman and found it to be PCP.

Rios was only charged with making one delivery. The state offered two other instances of criminal conduct which occurred at a later time under the pretext of showing Rios’ intent, plan, motive, knowledge or absence of mistake. Other crimes, wrongs or acts are admissible under certain circumstances:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ark. Stat. Ann. § 28-1001, Rule 404(3) (b) (Noncum. Supp. 1976).

However, we see no reason why evidence of these other crimes should have been admitted to prove any of the purposes referred to in the rule.

Our basic rule regarding the admissibility of other wrongs or offenses was set forth in Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), and confirmed in Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913 (1971). In the latter we said:

Proof that Sweatt had sold marijuana on other occasions had no relevancy except to show that Sweatt had dealt in drugs before and hence was likely to have done so again. That is precisely the type of proof that must be excluded. Sweatt, supra, at 652.

It was clearly error for the trial court to admit the evidence of other sales or delivery of drugs to simply prove Rios made a delivery on May the 4th. Therefore, we will reverse the judgment of the trial court and remand this case for new trial.

Because the issue as to the admissibility of character evidence may come up again during a retrial of this matter we must address it also.

After Rios testified, he called his employer purportedly to testify that Rios was truthful. The trial court did not permit this evidence because apparently the employer could not testify that he knew of Rios’ reputation in the “community” but only as his employer. Obviously, there was a misunderstanding of the rules by the court and counsel. The Arkansas Uniform Rules of Evidence have changed somewhat the law concerning admissibility of character evidence. For example, no longer is a person’s reputation limited to the “community. ” Reputation may be of a person’s character among his associates or in the community. Ark. Stat. Ann. § 28-1001, Rule 803(21) (Noncum. Supp. 1976); see also Harvey v. State, 261 Ark. 47, 545 S.W. 2d 913 (1977).

A defendant who takes the witness stand cannot support his testimony by offering evidence that shows his character for truthfulness unless his character has been attacked. See Ark. Stat. Ann. § 28-1001, Rule 608 (Noncum. Supp. 1976).

We cannot say from thin record that Rios’ truthfulness had been attacked simply because he took the witness stand. Certainly if the rebuttal evidence of the state regarding other offenses was admitted, it could be said that his credibility was attacked; but we have excluded that evidence so it will not come up on retrial. We cannot anticipate whether Rios will take the stand on retrial, nor can we predict how his cross-examination will develop. The evidence may or may not be admissible during a new trial. We simply point out to the court and counsel that the rules of evidence which control this issue* are set forth in the Arkansas Uniform Rules of Evidence. Ark. Stat. Ann. § 28-1001, Rules 404; 609; 802(21) (Noncum. Supp. 1976).

Reversed and remanded.

We agree. Harris, C.J., and George Rose Smith and Roy, JJ.


author: George Rose Smith, Justice.

text:
    Ronald PATE et al v. Fred HOOK
    77-216
    557 S.W. 2d 391
    Opinion delivered November 14, 1977
    (Division I)

      Tackett, Moore, Dowd & Harrelson, by: Gene Harrelson, for appellants.

      Arnold, Arnold, Lavender & Rochelle, Ltd., by: Charles D. Barnette, for appellee.
   George Rose Smith, Justice.

In this workmen’s compensation case Fred Hook’s claim for disability benefits arises from a work-related injury to his neck and shoulder. The medical and lay testimony, when considered together, would have supported an award ranging from as little as 5% disability all the way up to total disability. (For the rule that the commission may take into account both the medical and the lay testimony in arriving at a percentage, see Ark. Best Freight System v. Brooks, 244 Ark. 191, 424 S.W. 2d 377 [1968].)

Two members of the commission concurred in an opinion finding the claimant’s permanent partial disability to be 45% to the body as a whole. The third members considered that figure to be too high. By direct appeal from the circuit court’s affirmance the employer and insurance carrier argue that the award is too high. By cross appeal the claimant argues that it is too low.

We think the case to be governed in principle by decisions such as Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49 (1928). In Fulbright the conflicting testimony in a suit upon a promissory note would have supported a verdict either for the full amount of the note or for nothing at all. The jury, however, awarded only half the amount of the note. Recognizing that the partial verdict doubtless resulted from a compromise in the jury room, we affirmed the award as being supported by substantial evidence. We later applied the same rule in an action for disability benefits under an insurance policy. Alexander v. Mutual Benefit Health & Acc. Assn., 232 Ark. 348, 336 S.W. 2d 64 (1960).

In a case such as the one now before us the members of the commission, like the jurors in an action at law, must sometimes modify their individual views in order to reach a majority opinion. Under the Fulbright principle such a compromise award is supported by substantial evidence if it falls within the range of choice supported by the proof. We cannot increase or decrease the award without substituting our judgment for that of the commission with regard to the very issue of fact which was before that tribunal. Such a step is not within our province under the workmen’s compensation law.

Affirmed on direct and cross appeal.

We agree. Harris, C.J., and Fogleman and Hoi.t, JJ.


text:
    Marion HUCKABY v. STATE of Arkansas
    CR 77-112
    557 S.W. 2d 875
    Opinion delivered November 14, 1977
    (In Banc)
    [Rehearing denied December 12, 1977.]

      Wilbur Botts, Jesse Thompson and Claude W. Jenkins, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was convicted by a jury of first-degree murder and was sentenced to a 40-year term of imprisonment. His arguments for reversal present six issues of law for our decision.

Huckaby was charged with having shot Willis Eugene Jackson on May 26, 1976. At that time Huckaby and his wife were separated. On the night of the homicide Mrs. Huckaby had been to a nightclub with Jackson, who was her boss. As the two drove into the driveway at Jackson’s home Huckaby suddenly appeared and shot them both, killing Jackson and wounding Mrs. Huckaby. Huckaby denied his presence at the scene and also testified that he had been drinking all that day and did not even remember going to bed that night.

First, several weeks before the trial the court allowed the State to reduce the original charge of capital murder to the lesser offense of first-degree murder. Although it is provided by Ark. Stat. Ann. § 43-1024 (Repl. 1964) that no indictment shall be amended to change the degree of the crime charged, the statute obviously should not be construed to permit a defendant to complain of a change that is wholly to his advantage. In fact, the appellant’s brief does not indicate that any such objection was made in the trial court.

Second, on the first day of the trial defense counsel made an oral motion that the jury panel be quashed, because the jurors were improperly selected and improperly excused. After a brief hearing of testimony counsel insisted that the method of selection was improper, because the names of the jurors, as they were drawn from the jury wheel, were not recorded in a jury book. Ark. Stat. Ann. § 39-209 (Supp. 1975). instead, the clerk made a typewritten list of the names, which was used all during that term of court.

No prejudicial error is shown. Act 568 of 1969 is a comprehensive statute by which the legislature directed the use of a jury wheel and made other changes in the selection of juries. In Horne v. State, 253 Ark. 1096, 490 S.W. 2d 806 (1973), we held to be mandatory that section of Act 568 which requires the jury commissioners to meet each year and select prospective jurors for the following calendar year. Ark. Stat. Ann. § 39-205.

In Home, however, we did not hold, as counsel now seem to argue, that every provision in Act 568 is mandatory in the sense that noncompliance requires that the jury panel be quashed. Some sections of the act are more important than others. It is certainly desirable, as a matter of preventing fraudulent practices, that the names of jurors be recorded in some sort of jury book (there being no specific description of the book in the statute). But here the objection to the typewritten list was not made until the morning of the trial, when it was too late for the matter to be corrected. There is not the slightest question about the integrity of the list. There was, in the circumstances, a substantial compliance with the statute.

Third, in Arkansas county it is the practice for the sheriff’s office, shortly before a trial, to summon as many prospective jurors as the judge thinks will be needed. In notifying the persons whose names have been drawn from the jury wheel the sheriff’s deputies confine themselves largely to those who have telephones. It is now argued that this practice is contrary to law, because it amounts to a systematic exclusion of a large class of eligible jurors — those who do not have telephones. See Hall v. State, 259 Ark. 815, 537 S.W. 2d 155 (1976), where farmers were excluded.

The objection that is now being made was not argued to the trial court at the outset. After some 80 veniremen had been examined on voir dire, it became necessary for the court to declare a short recess to allow the sheriff to summon 10 more prospective jurors. During the recess defense counsel questioned the method of summoning jurors principally by telephone. In overruling counsel’s motion to quash the panel the court stated that “the sheriff has been trying to get any of the jurors any way he can. I am not going to adjourn this trial until in the morning so he can go out and summon the first one on the list. He is just picking from that list as he can get them located. We were in the process of selecting a jury in this case. We ran out. We had to take the most expedient method. One juror is just as good as another.”

The court’s ruling was right. The statute allows jurors to be summoned by certified mail, by telephone, or by personal summons or other method permitted by law. Ark. Stat. Ann. § 39-210. Whatever might have been the proper procedure before the trial, it was certainly within the trial judge’s discretion to approve the most expeditious method of bringing in more jurors after the trial was already in progress.

Fourth, it is argued that the defendant’s wife was not a competent witness against him. That may have been true when the offense was committed. Ark. Stat. Ann. §§ 43-2019 and -2020; Jenkins v. State, 191 Ark. 625, 87 S.W. 2d 78 (1935). Those statutes, however, were expressly repealed by § 2 of Act 1143 of 1975, which adopted the Uniform Rules of Evidence. Rule 501 of those rules provides that no person has a privilege to prevent another from being a witness. Rule 504 limits the husband-wife privilege to confidential communications, which are not involved in this case. Thus the defendant’s wife was a competent witness when the case was tried.

The defendant is mistaken in arguing that, as to him, the change in the governing rule is invalid as an ex post facto law. “Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage.” Hopt v. Utah, 110 U.S. 574 (1884). That principle has twice been applied to uphold a statutory change by which a wife was permitted to testify against her husband in a criminal case. Webster v. State, 142 Ala. 56, 38 So. 1010 (1905); State v. Clevenger, 417 P. 2d 626 (Wash., 1966).

Fifth, the court did not err in allowing a witness to be cross-examined about his own ability to drive a car while intoxicated, that being pertinent to his direct examination. And, sixth, the defendant’s proffered instructions on the effects of voluntary intoxication were adequately covered by the court’s instruction on that subject.

Affirmed.


author: John A. Foqleman, Justice.

text:
    CROUCH FUNERAL HOME, INC. and AETNA INSURANCE COMPANY v. James Phillip CROUCH
    77-220
    557 S.W. 2d 392
    Opinion delivered November 14, 1977
    (Division II)

      Smith, Williams, Friday, Eldredge & Clark, by: George Pike, Jr., for appellants.

      Murphy, Blair, Post & Stroud, by: Robert D. Stroud, for appellee.
   John A. Foqleman, Justice.

Appellants contend that there is no substantial evidence to support the Workmen’s Compensation Commission finding that appellee James Phillip Grouch suffered a compensable injury arising out of and in the course of his employment with Crouch Funeral Home, Inc. We agree, reverse the award and dismiss the claim.

Appellee is a licensed mortician employed by the corporation which was owned by appellee, his mother and his brother, except for a 10% interest owned by an employee, John W. Baker, who is not related to the Crouches. Appellee was vice-president of the corporation. His duties included direction of funerals, embalming and many menial duties, which included stamping envelopes, washing funeral cars and sweeping the parking lot. His mother, Mrs. Frances Crouch, was the president of the corporation and manger of its funeral home, which was located at Batesville. All employees, except corporation officers, worked and were paid on an hourly basis. All had a work schedule and were paid each Saturday by Mrs. Crouch, who was the only person who knew the rate of pay of each employee. She was also the only person who was authorized to sign checks for the corporation. She kept the payroll records under lock and key in her office and no one else had access to them. A bookkeeper had authority to prepare checks for the payment of bills, but not to sign them.

On or about March 4, 1975, Mrs. Crouch left Batesville on a purely personal trip to visit her son in Philadelphia. She planned to return to Batesville on March 14. Before she left she prepared payroll checks based on a forty-hour week for delivery to the employees on March 8, 1975. Her expected date of return was posted on the bulletin board on which the employee work schedule was posted. She flew to Philadelphia from the Memphis airport and returned to that airport as scheduled. She left no instructions for anyone to meet her at the airport. On previous occasions, she had been met at the Memphis airport upon her return from such vacation trips by members of her family, who returned her to Batesville in their own private automobiles. On other such occasions, she had been met and returned in company automobiles by company employees, who were paid by the company for the time required. At least two of these employees were paid hourly wages for the time spent on these trips. Mrs.'Crouch compensated family members who made such trips from her personal funds. On some occasions company employees had taken her to her destination on such trips.

Appellee arose at 5:00 a.m. on March 14. He found snow on the ground, and put chains on two of the company vehicles, which were then taken by two company employees to Mountain View. After doing some paper work and shoveling some snow around the funeral home, appellee picked up three friends and drove to Memphis in a 1971 Cadillac automobile owned by the corporation and used as a “family” car for the transportation of families of deceased persons whose funerals were conducted by the company, but when not being so used, Mrs. Crouch used it whenever she wished for either business or personal missions. Appellee dropped the friends at their destination in Memphis and went to the airport and picked up his mother. Taking and returning these friends was strictly a personal accommodation unrelated to the corporate business in any way. Appellee then picked up the friends and started toward Batesville. At Fair Oaks, the Crouch vehicle was involved in a collision with another automobile, as a result of which Mrs. Crouch and two of the friends were killed, and appellee suffered the injuries on which his claim is based. It was stipulated that Mrs. Crouch was not within the scope of her employment at the time of the collision.

The commission considered appellee as an employee, rather than as an executive officer, of the corporation for the purposes of this case. We do, too, in the sense that the test of the right to compensation is not the title or the injured party, but the nature and quality of the act he is performing at the time of the injury. See Brooks v. Claywell, 215 Ark. 913, 224 S.W. 2d 37.

We find no basis for a finding, and the commission did not find, that Mrs. Crouch directed appellee to pick her up at the airport. Neither is there any evidence that she directed or expected any employee of the corporation to do so. Appellee had taken her to the airport when she left for Philadelphia in the same car he was driving when he picked her up upon her return. We find no substantial evidence to support the commission’s findings. Cases relied upon by appellee where an employee was directed by his employer, whether related to the employee or not, to perform some personal service to the employer, or for his personal benefit, are not applicable here. There is no basis whatever for a finding that Mrs. Crouch directed her son to meet her and bring her home from the airport or to direct an employee to do so. The idea, that appellee as an officer of the company, directed himself, as an employee, to do so, is too far-fetched to merit serious consideration.

The theory of the commission in this case would be much more easily reached were it not for a combination of factors in this case that readily distinguish it from other situations in which the accident could reasonably be said to arise out of and in the course of the employment of the injured employee. They are: (1) the family relationship; (2) the absence of any direction or order to the employee to go on this mission; (3) Mrs. Crouch was returning from a personal visit; (4) Mrs. Crouch was not in the scope of her employment; (5) the clear indication that the expectation that she would be met and returned home by a relative, who would be compensated from Mrs. Crouch’s personal funds, was at least as great as the expectation that she would be met by an employee; (6) the taking and returning of friends on the trip strictly as a personal favor, without any possible relationship to the company business; (7) the common use of the automobile by Mrs. Crouch for her personal missions.

We know of no case in Arkansas that is applicable to the facts in this case, but are aware of the fact that the weight of authority would support the award in the absence of some of the above factors, particularly the family relationship. Because of these factors, it cannot be said that appellee went on this trip strictly because of his employment, rather than as a personal favor. Thus, many cases which would support an award are inapplicable. The reason for many such holdings is that, whatever the normal course of employment may be, the employer and its supervisory staff have it within their power to enlarge it by assigning tasks outside the usual scope and because the employee runs the risk of being fired if he does not comply. 1 Larson’s Workmen’s Compensation Law 5-264, § 2740.

The burden was upon appellee to show that his injury arose out of and in the course of his employment. American Red Cross v. Wilson, 257 Ark. 647, 519 S.W. 2d 60; Wilson v. United Auto Workers International Union, 246 Ark. 1158, 441 S.W. 2d 475; Hughes v. Hooker Bros. and McKenzie Road Service, Inc., 237 Ark. 544, 374 S.W. 2d 355. He could not meet that burden by showing that as a voluntary accommodation to his mother he performed a duty outside the scope of his employment. Thompson v. George E. Thompson Co., 198 Minn. 547, 270 N.W. 594 (1936); Elliott v. Elliott Bros., 165 Tenn. 23, 52 S.W. 2d 144 (1932). See also, Zenker v. Zenker, 93 Pa. Super. 255 (1928). In the case at bar, as in those, the family relationship cannot be ignored, even though, standing alone, it would not justify a denial of compensation, if all other facts clearly indicated that the claimant’s injury arose out of and in the course of his employment.

If we followed appellee’s theory, virtually any personal service Mrs. Crouch had asked appellee to perform, or any that he had voluntarily assumed for her personal benefit, would have been compensable. We cannot overlook the fact that an insurance carrier is a party to this action and is responsible, along with the corporation, which is not wholly family owned, for the payment of any compensation allowed. It was not the intent of the Workmen’s Compensation Law to provide general accident insurance. Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S.W. 2d 834. Therefore, in spite of the liberal construction to be given the act, a compensable injury must be within the course of the claimant’s employment, and there is no prima facie presumption that a claim comes within the provisions of the law. Duke v. Pekin Wood Products Co., supra. In considering this requirement, it is significant that, under the Workmen’s Compensation Act, excluding one whose employment is casual from the definition of employee, our act requires the employment be “not in the course of the trade, business, profession or occupation of his employer. ” Neither the carrier nor the corporation should be expected to bear the burden of compensating injuries to this employee when the whole errand was so unrelated to and disconnected from the business of the employer and his own employment. See Zenker v. Zenker, supra. There is no evidence that he had ever previously performed this service for his mother. The fact that it was anticipated that Mrs. Crouch would perform her usual tasks relative to the payroll on the following day does not provide the necessary nexus. The situation would have been the same had she been met by her daughter-in-law driving the latter’s own vehicle with the expectation that she would be compensated, as usual, out of Mrs. Crouch’s personal funds. This would not make the daughter-in-law an employee of the company, because, to say the least, the employment would have been casual and outside the course of trade, business, profession or occupation of the employer and compensated by a gratuity from the employer. See Gibbs v. Downs, 94 Conn. 487, 109 A. 170 (1920).

We are not unaware of the statement by Professor Larson that the employer’s “order” need not take the form of an outright command, if, in the circumstances, the employee’s impression of what is expected of him in serving the interests of his employer or supervisor may be sufficient to motivate his undertaking the service and bring it within the course of the employment. Another court has properly questioned the appropriateness of the only authority cited as a basis for this statement. Fremont Indemnity Company v. Workers’ Compensation Board, 69 Cal. App. 3rd 170, 137 Cal. Rptr. 847 (1977). An “impression” may be a vague, imprecise and indefinite notion or opinion;.indistinct or indefinite belief; fancy; or surmise. See Webster’s New International Dictionary, 2d Ed.; Webster’s Third New International Dictionary; The Synonym Finder, Rodale (Special Deluxe Edition). This seems to be too frail and flimsy a basis for extension of a course of employment. It certainly is on the record before us.

The judgment is reversed and the claim dismissed.

We agree. Harris, C.J., and Holt and Roy, JJ.

       The only case cited by the textwriter was Lowicki v. National Sugar Refining Co., 281 App. Div. 113, 118 N.Y.S. 2d 86 (1952). In that case the claim was supported by a statutory presumption of coverage. In this case, there is no such presumption.


text:
    MEADORS LUMBER COMPANY and SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Joseph WYSONG
    77-226
    557 S.W. 2d 395
    Opinion delivered November 14, 1977
    (Division II)

      Hardin, Jesson & Dawson, for appellants.

      Jones, Gilbreath & Jones, by: Robert L. Jones, III, for appellee.
   Frank Holt, Justice.

Appellants contend that there is no substantial evidence to support the Workmen’s Compensation Commission’s finding, and the circuit court’s affirmance, that a hemorrhoidectomy was necessitated by the appellee’s on-the-job injury. Appellants argue that the appellee was restored to his pre-injury condition by an incision and drainage of the thrombosed hemorrhoid and, therefore, the expense of the elective hemorrhoidectomy and additional benefits are not compensable.

Ark. Stat. Ann. § 81-1311 (Repl. 1976) provides in pertinent part that “[t]he employer shall promptly provide for an injured employee such medical, surgical, hospital, and nursing services ... as may be reasonably necessary for the treatment of the injury received by the employee.” Here the Commission made a factual determination that the hemorrhoidectomy was a reasonably necessary treatment of appellee’s on-the-job aggravation of his pre-existing condition. On appeal from that finding, we view the evidence, although contradicted, in the light most favorable to the appellee, and if there is any substantial evidence to support the Commission’s findings, its decision must be affirmed. Stephens & Stephens v. Logan, 260 Ark. 78, 538 S.W. 2d 516 (1976).

Here the appellee testified that he had experienced no problems with his hemorrhoid condition since and incision and drainage two years previously. His wife corroborated this testimony. The present physician testified by deposition that he anesthesized, opened, drained, and removed the blood clot from the appellee’s thrombosed hemorrhoid. He recommended a definitive hemorrhoidectomy after the initial relief of appellee’s severe pain. It was his opinion that “based on my examination and the history of the patient, the straining while lifting a load of heavy wire on a truck at work by Joseph Wysong aggravated his previous condition of hemorrhoids which necessitated a hemorrhoidectomy.” Further, the reason for the recommendation of the operation was “obvious” since “[h]e had already had one incised and drained, and here was another one.” Although the appellee could have been back to work within a week had he not undergone the hemorrhoidectomy, the physician stated that appellee needed the operation more than the average person “[b]ecause thrombosed hemorrhoids is an indication of a hemorrhoidectomy, because they occur and reoccur and keep reoccurring. They can completely circutnpass the entire anal canal, and then you have a complete necrotic, gangrenous, stinking, painful area that is ¡incompatible with normal breathing.” He stated that he did not believe it fair to say the appellee was no more in need of a hemorrhoidectomy after the second attack than he was after the first attack because “he’s had two previous attacks of this incision and draining of thrombosed hemorrhoid, and this indicates a considerable amount of anal-rectal disease, and that indicates hemorrhoidectomy. Period.”

We hold there is ample substantial evidence to support the Commission’s finding that the hemorrhoidectomy was reasonably necessary for proper treatment of appellee’s condition.

Appellants also assert that the physician’s letter report addressed to appellee’s attorney should have been given no weight by the Commission. We disagree. Ark. Stat. Ann. § 81-1323 (c) provides that verified medical reports, as here, may be admitted into evidence and accorded such weight by the Commission as is warranted from all the evidence. Further, the letter report was admitted without objection. Suffice it to say that the weight to be accorded the report was within the province of the Commission and we cannot invade the province of the Commission as a factfinder with respect to the acceptance of physicians’ opinions and diagnoses. Williams v. Ark. Nursing Home, 255 Ark. 880, 503 S.W. 2d 474 (1974).

As provided by Ark. Stat. Ann. § 81-1332 (Repl. 1976), appellee’s attorney, as requested, is awarded $250 for his services on appeal.

Affirmed.

We agree: Harris, C.J., and Roy and Hickman, JJ.


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    Joe Edward PRIDGEON v. STATE of Arkansas
    CR 77-150
    559 S.W. 2d 4
    Opinion delivered November 14, 1977
    (Division II)
    [Rehearing denied January 9, 1978. J

      Reinberger, Eilbott & Smith, for appellant.

      Bill Clinton, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of possession of a controlled substance with intent to deliver and his sentence assessed at thirty years ’ imprisonment and a $15,000 fine. We first consider and find merit in appellant’s contention that the court erred in refusing his motion for a mistrial after written statements, containing offers of immunity, of two prosecuting witnesses were admitted into evidence.

A chronology of pertinent events is that approximately three months before trial, appellant’s counsel filed a pretrial motion for discovery, specifically requesting the names of witnesses and any statements that tended to exculpate or mitigate the alleged offense. In response only the names of the witnesses were supplied although at that time it appears there were statements in the prosecution’s file of two key state witnesses, Walker and Haire, which contained offers of immunity to each of them. The assurances of immunity were made by a deputy prosecuting attorney in return for their testimony against appellant. During appellant’s voir dire of the prospective jurors, appellant’s counsel asked a juror whether offers of immunity to key state witnesses would have any effect on her with respect to the credibility of these witnesses. A hearing was then held in chambers on the propriety of this question. The prosecutor assured the judge that he had made no offers of immunity and if one was made it was without his authority. One of the key state witnesses testified that he had not been offered immunity. Each of appellant’s two counsel then stated that during an interview with this witness on the previous day, he had told them that he had been offered immunity on the possession charge in return for his testimony. Appellant’s counsel had no other evidence of any offer of immunity. His counsel stated: “[0]n the basis of what we have heard in here that I will make a statement in open court and [apologize] to the Court for the statement that the State promised immunity and state that it was not the State’s offer, the Prosecuting Attorney’s offer nor the Court that offered any immunity . ...” As to the questioned “weight” of the subject of immunity, the court responded: “I disagree with you because I think it carries a lot of weight. . . . and if it’s there then I want to know about it.” The court then ruled that there was no evidence of any agreement not to prosecute the state’s witnesses and asked appellant’s counsel if they objected to the court’s announcing this to the jury. Appellant’s counsel replied: “I can’t object to it, we have no way of going to the State.” The judge then instructed the jury that there was no such agreement and to disregard the question.

Subsequently two witnesses, essential to the state’s case, including the one who had disclaimed immunity in the voir dire proceeding, testified. They were “users” or addicts and present when appellant was arrested on this alleged offense. On cross-examination by appellant’s counsel, each witness admitted that he had been offered immunity by a deputy prosecutor in exchange for his testimony. The court ordered the written statements made available to appellant’s counsel. These statements, each containing offers of prosecutorial immunity by a deputy prosecutor, were admitted into evidence. A motion for mistrial was made by appellant’s counsel. The basis was that a key witness’ pretrial written statement containing a promise of immunity, was in possession of the prosecutor’s office and the court, being assured no promise existed, had told the jurors that no immunity had been promised. The court denied the motion as well as a subsequent motion for a new trial on the same basis.

We first observe that a deputy prosecutor’s promise of leniency to a key witness in return for his testimony is attributal to the government with a duty to disclose regardless of whether the assistant had authority to make the promise or informed his superior of its existence. Giglio v. United States, 405 U.S. 150 (1972). Here it is undisputed that promises of immunity were made to essential witnesses by a deputy prosecutor even though it be said the prosecutor himself was not aware of such a promise until it became known during the trial.

Appellee contends, however, that there was no prejudice demonstrated here since appellant was afforded the written statements preceding cross-examination. Even so, appellee overlooks the fact that appellant was denied the opportunity to pose questions to prospective jurors regarding whether they would consider offers of immunity in determining the witnesses’ credibility and, thereby, prevented effective use of that information in exercising his peremptory challenges. Griffin v. State, 239 Ark. 431, 389 S.W. 2d 900 (1965). Here the prejudice is heightened by the fact that the court, in the belief that no offer of immunity existed, had instructed the jury that no offers of immunity had been made. “Fairness is a requirement of due process.” Petition of Wright, 282 F. Supp. 999 (W.D. Ark. 1968). See also Smith v. Urban, 245 Ark. 781, 434 S.W. 2d 283 (1968). Here prejudicial error was sufficiently demonstrated to warrant a new trial.

Appellant next contends that the court erred in refusing his motion to suppress evidence obtained under an invalid search warrant. The police officer’s affidavit for the search warrant, dated August 15, 1976, stated that the affiant had reason to believe that heroin was being concealed where appellant resided. The underlying facts supporting this conclusion are: since January, 1972, sixty reports of violation were received about appellant selling heroin; since January, 1976, ten such reports were received; on August 14, 1976, a “cooperating individual” gave information the officers “knew to be true and accurate” and said he could buy heroin from appellant at his mother’s residence; this individual and his vehicle were searched by police and no drugs were found; he was then given money to buy heroin; he was followed by officers to the described residence where the officers observed the individual go inside and shortly come out; he was then followed by the officers to a prearranged meeting place where he gave one of them a foil package containing brown powder which, in affiant’s presence, field tested positive for heroin; and he told the officers he had purchased the heroin from appellant. Appellant argues that the affidavit did not allege facts sufficient to constitute probable cause because it did not disclose the affiant’s knowledge of the informant’s reliability and credibility. We disagree. The facts recited in the foregoing affidavit surrounding the purchase of heroin by the informant the previous day indicated the reliability and credibility of the informant and, therefore, the existence of probable cause for the issuance of the search warrant. See Shackleford v. State, 261 Ark. 721, 551 S.W. 2d 205 (1977); and Baxter v. State, 262 Ark. 303, 556 S.W. 2d 428 (1977).

Appellant further contends that the warrant itself was invalid because it did not state the time within which the warrant was to be returned to the judicial officer as required by Rules of Crim. Proc., Rule 13.2 (b) (v). Further it was defective because the warrant authorized its execution at any time day or night without the issuing officer indicating reasonable cause therefor as required by Rule 13.2 (c). The warrant was returned to the issuing officer within the five days allowed by Rule 13.2 (b) (v) and the search was conducted at 12:15 p.m., which is within the hours provided by Rule 13.2 (c). Under Rule 16.2 (e), a motion to suppress evidence is to be granted only if the court finds that the violation is substantial or if otherwise required by the Federal and State Constitutions. Here we perceive no substantial violation of the rules or a constitutional requirement. Baxter v. State, supra; Shackleford v. State, supra; and Brothers v. State, 261 Ark. 64, 546 S.W. 2d 715 (1977).

Appellant also suggests the search was invalid because the warrant was not exhibited to the owner of the residence searched as required by Rule 13.3 (b). However, two of the officers conducting the search testified that the warrant was shown and explained to the owner of the residence. Appellant also asserts that the officers did not leave a copy of the warrant as required by § 13.3 (b) nor a receipt describing the items seized which is required by § 13.3 (d). Appellant offers no evidence that they did not do so and the search warrant states that a copy of the warrant and a receipt were given appellant in compliance with Rule 13.3. We perceive no irregularity and certainly no prejudice requiring invalidation of the search. See Baxter v. State, supra.

We deem it unnecessary to discuss other arguments for reversal.

Reversed and remanded.

We agree: Fogleman, Roy and Hickman, JJ.


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    DILLAHA FRUIT CO. and MILLER’S INSURANCE CO. OF TEXAS v. John LaTOURRETTE
    77-196
    557 S.W. 2d 397
    Opinion delivered November 14, 1977
    (Division I)

      Ralph R. Wilson, for appellants.

      Lady, Webb & Blackman, by: Frank Lady, for appellee.
   Elsijane T. Roy, Justice.

In this action the Arkansas Workmen’s Compensation Commission found appellant, Dillaha Fruit Company, liable to appellee, John LaTourrette, for compensation benefits as a result of injuries sustained by appellee in an accident on May 15, 1975. This appeal is brought from the Circuit Court’s affirmance of that decision.

Appellee’s specific contention, upheld by the court, was that he was jointly employed by Dillaha and Jessie Lanier. For reversal Appellant Dillaha contends there is no substantial evidence to support the determination that appellee was an employee of Dillaha Fruit Company at the time of the accident.

Appellee commenced employment for Dillaha on January 17, 1974, as a truck driver delivering produce locally to designated stores. In July or August, 1974, appellee, as part of his regular employment began making deliveries, or runs, to Crossett. He was taught the route by a former Dillaha employee.

Shortly thereafter Ted Dillaha, president of the appellant produce company, and Jessie Lanier approached appellee concerning his making the Crossett run in a delivery truck owned by Lanier on a regular basis for $30 per trip. LaTourrette agreed to accept this employment on a temporary basis and thereafter began delivering produce on the Crossett run for both Dillaha and Lanier under the separate invoices of each. The runs in the Lanier truck were made on Tuesdays and Thursdays, while appellee worked the rest of the week, except Sunday, exclusively for Dillaha, a period in excess of 40 hours per week.

As to the Crossett run after appellee’s employment by both Dillaha and Lanier, the Commission found, and the record substantiated its finding, that:

. . . Mr. Dillaha continued to give the claimant limited instructions concerning the run; that the Jessie Lanier truck remained at the Dillaha warehouse where it was loaded in the morning and where it was left in the evening; that the claimant continued to make adjustments for damaged goods under either the Lanier or Dillaha invoices as authorized by Ted Dillaha, Jr.; and that the customers serviced and the route taken were the same as when the claimant was driving the Dillaha truck and clocking his time with Dillaha Fruit Company.

On the day of the accident appellee left on the Crossett run at approximately 2:30 a.m., stopping first in Warren. There he made deliveries to four different stores, two of which were under the Lanier invoice and two under the Dillaha invoice. He left Warren at approximately 5:30 or 6:00 a.m., and while he was en route to Crossett his truck ran off the shoulder of the road and overturned. Appellee testified at the hearing that he did not know how the accident happened. As a result of the accident appellee sustained injuries which caused him to be paralyzed from the chest down, leaving him with no control over his kidney or bladder functions. At the hearing before the Commission appellee was restricted to a wheelchair.

As to the relationship between Lanier and the Dillaha Company, the Commission found that they had worked together prior to 1974 with Lanier purchasing his fruits and vegetables from various companies including Dillaha. Lanier then peddled his produce by himself independently. While Lanier was hospitalized for surgery the Dillaha Company continued to supply his customers with produce. After Lanier’s recovery he was unable to continue his previous working arrangement and began to contact his customers by using the telephone at the Dillaha warehouse. Also, Lanier’s orders were thenceforth filled exclusively with Dillaha produce.

During the time appellee was making the Crossett run he collected payments under both the Lanier and Dillaha invoices. The money collected was commingled and placed in the Dillaha Company vault. The invoices were then processed by Dillaha employees who charged Lanier for the produce delivered to his customers and credited his account for amounts received on his invoices. Appellee took the $30 wages to which he was entitled out of money he collected each day on the Crossett runs. This sum was charged against the Lanier account.

In addition to recovery of benefits for his injuries appellee sought imposition of the 15% statutory penalty for violation of safety regulations pursuant to Ark. Stat. Ann. § 81 -1310(d) (Repl. 1976). Appellee claimed that a federal regulation which set the maximum number of hours a driver can be on duty during a specified period of time had been violated. It was undisputed that Jessie Lanier did not carry workmen’s compensation insurance.

The Commission found that the claimant was jointly employed by Lanier and the Dillaha Company; that he had suffered a compensable injury while in this joint employment; that he earned sufficient wages as an employee of Dillaha to entitle him to the maximum compensation amount of $66.50 per week; that he had suffered temporary and total disability; and that Dillaha was liable for all reasonable hospital and medical expenses incurred by the claimant. Since appellee testified he did not know how the accident happened, the Commission found no evidence that violation of a safety regulation contributed to the claimant’s accident and denied that claim summarily. The award of the Commission was entered accordingly and affirmed by the circuit court.

In 99 C.J.S., Workmen’s Compensation, § 46 (1958), the following is stated regarding simultaneous employers of the same employee:

The relation of employer and employee may be simultaneously sustained between several employers and the same employee. Where this situation exists, the employers have, in several cases, been held jointly liable for compensation to an employee injured while on the property of, or doing work for, one of them, at least where there was a joint hiring or a joint employment, or where the employee was injured while performing a duty for the common benefit of all the employers, as where he was traveling from one employer’s place of business to that of the other, as he was required to do in order to perform properly his duties for both, or where he was on his way to demonstrate or sell products of both employers, first the products of one at one city, then the products of the other at another city, or where he was returning from points where he had been instructed to go by both employers.

Further support for finding joint liability against simultaneous employers is found in 1A Larson’s Workmen’s Compensation Law, § 48.40 at p. 8-254 (1973):

* * * Courts are showing an increasing tendency, however, to dispose of close cases, not by insisting on an all-or-nothing choice between two employers both bearing a close relation to the employee, but by finding a joint employment on the theory that the employee is continuously serving both employers under the control of both.

The same section also states where such joint employment occurs “both employers are liable for workmen’s compensation.” Larson’s, supra, p. 8-253.

In reviewing an award of workmen’s compensation benefits we must view the evidence in the light most favorable to the Commission’s actions. We do not determine whether the testimony would have supported a contrary finding but rather whether the evidence supports the finding made. Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S.W. 2d 304 (1968).

We find there is substantial evidence to support the award made and also the refusal to impose a penalty.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Hickman, JJ.


text:
    James E. ERVIN v. STATE of Arkansas
    CR 77-145
    557 S.W. 2d 617
    Opinion delivered November 21, 1977
    (Division I)

      Harold L. Hall, Public Defender, by: William R. Simpson, Jr., Dep. Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Robert Lyford, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On November 2, 1976, the appellant shot and killed Willie E. Briggs, in the course of an argument, as the two were sitting in a car at a parking lot in Little Rock. The appellant testified that he shot because he thought Briggs was about to draw a gun. Charged with second degree murder, the appellant was found guilty and given a 20-year sentence.

The court instructed the jury, in the language of the Criminal Code, that a person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety by retreating. Ark. Stat. Ann. § 41-507 (Crim. Code 1976). The appellant argues that the court should have added the statutory exceptions: That one is not required to retreat if he is in his dwelling and was not the original aggressor, or is a law enforcement officer, or is assisting at the direction of such an officer. Id. The exceptions were not pertinent to the facts in the case; so there was no need for the court to include them in the charge to the jury. Gross v. State, 186 Ind. 581, 117 N.E. 562, 1 A.L.R. 1151 (1917); Adams v. State, 200 Md. 133, 88 A. 2d 556 (1952); Huckleberry v. State, 64 Okl. Cr. 396, 81 P. 2d 493 (1938).

Affirmed.

We agree. Harris, C.J., and Fogleman and Holt, JJ.