text:
    Floyd SPRATLIN and SOUTHERN FARM BUREAU v. Lillie T. EVANS, Alleged Widow, and Dian Cohns, et al., Alleged Dependent Children of Hosea EVANS, also known as Hosea Evans STOKES, Deceased
    76-11
    538 S.W. 2d 527
    Opinion delivered June 28, 1976

      Daggett, Daggett & Van Dover, by: Jesse B. Daggett, for appellants.

      Brick, Wallin & Rainey, by: Jake Brick, for appellees.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which the appellant-employer, Floyd Spratlin, and the appellant-compensation carrier, Southern Farm Bureau, appeal from a circuit court judgment affirming the Commission’s award of compensation benefits to Dian Cohns, Wilma Jean Cohns and Larry D. Cohns as acknowledged and dependent illegitimate children of the decedent-employee, Hosea Evans Stokes, and in reversing the Commission’s finding that Lillie Tarpley Evans was not the widow of the decedent, and in ruling to the contrary as to the widow.

The appellants have designated the points they rely on for reversal as follows:

The circuit court erred as a matter of law in its ruling that Lillie Tarpley Evans was the “widow” of Hosea Evans Stokes as that term applies to the Workmen’s Compensation Act.
The award of benefits to Dian Cohns, Larry Donnel Cohns and Wilma Jean Cohns was procured by fraud, is based upon perjured testimony and is not supported by substantial evidence.

The pertinent facts as reflected by the testimony may be stated as follows: The decedent-employee, Hosea Evans Stokes, also known as Hosea Evans, sustained a compensable accident resulting in his death on June 12, 1972. Lillie Tarpley Evans filed workmen’s compensation claim for death benefits for herself as widow and Leona Cohns filed claim for the statutory funeral allowance and for compensation benefits for her minor children already mentioned.

The Administrative Law Judge found that Lillie Tarpley Evans was the widow of the decedent as defined by the Workmen’s Compensation Act; that the aforementioned minor children were acknowledged illegitimate children of the decedent and entitled to benefits under the Act. On review by the full Commission, the Commission found that LillieTarpley Evans was not the widow of the decedent within the meaning of the Compensation Act, but found that the aforenamed children were the acknowledged illegitimate children of the decedent and were wholly dependent on him at the time of his death and were entitled to benefits under the Act. The circuit court, upon appeal, reversed as to the widow and held that Lillie Tarpley Evans was the widow of the decedent within the meaning of the Act and affirmed the Commission as to the aforesaid minor children.

Leona Cohns testified that she is the mother of the children here involved, and in addition she has seven other children. She said she was originally married to L. C. Cohns; that they were never divorced but that she had not lived with him for 18 years and that he died in 1965. She said she had lived with the decedent for about 18 years and was living with him at the time of his death in 1972. She said she had four children by the decedent including Dian, Wilma and Larry, the children here involved, as well as a fourth child Sandra Kay, who was adopted at eight months of age by her sister in Memphis, Tennessee. She said Dian, Wilma and Larry lived in the house with her and decedent; that Dian was born on July 13, 1956; Wilma on July 8, 1957, and Larry on October 15, 1959. She admitted that the delayed birth certificates of these children showed their father to be L. C. Cohns, and that this information was given to the registrar of birth certificates by her under affidavit. She said, however, that the doctor delivering the children suggested that she give the true name of her legal husband as the father of the children since she was still legally married to him, and that she simply followed the doctor’s advice. The delayed birth certificates placed in evidence showed the one for Dian was applied for and issued in August, 1962; the one for Larry was applied for and issued in June, 1968; and the one for Wilma was applied for and issued in September, 1963.

Lillie Tarpley Evans testified that she was 79 years of age and lives in Memphis, Tennessee; that she married the decedent in 1935 and lived with him as husband and wife until 1957 when they concluded that they could no longer live together. She said she never did obtain a divorce. She said that from 1957 until the decedent’s death he never did support her but that her daughter supported her. She said she had not lived with the decedent for 18 years; that she was not dependent upon him for support; that he made no contribution toward her support since they separated in 1957; that she was able to take care of herself with the assistance of her daughter.

The testimony of all the witnesses is not abstracted but appellee Lillie Tarpley Evans’ own testimony is substantial evidence that she and the decedent separated by mutual consent and had not lived together since 1957, and that she was not dependent upon him for her support during the intervening period between their separation and his death. If Lillie’s testimony was correct as to the date she and the decedent separated, and Leona’s testimony was correct as to the approximate 18 years she lived with the decedent and as to the birth dates of her children, then it is obvious that Leona started living with the decedent, and at least Dian was born, before he and Lillie separated.

Leona’s testimony leaves much to be desired in attempting to establish the decedent as the father of the children here involved in the face of her affidavit to the contrary in her applications for the delayed birth certificates. There is substantial evidence, however, that Leona and her children here involved, lived with and were supported by the decedent.

We now come to the law in Arkansas as it applies to the evidence in this case. The rights of a dependent lawful widow and dependent legitimate children are not questioned or involved in this case. Consequently, our decision as to the rights of the claimants who are involved must depend, to a large extent, on statutory definitions. We shall first consider the claim of the appellee Lillie Tarpley Evans.

Ark. Stat. Ann. § 81-1315 (c) (Repl. 1960) provides as follows:

Subject to the limitations as set out in section 10 [§ 81-1310] of this act, compensation for the death of an employee shall be paid to those persons who are wholly dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference.
First. To the widow if there is no child, thirty-five (35) per centum, and such compensation shall be paid until her death or remarriage.
To the widower if there is no child, thirty-five (35) per centum, and such compensation shall be paid during the continuance of his incapacity or until remarriage.
Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen (15) per centum on account of each child.
Third. To one child, if there is no widow or widower, fifty (50) per centum. If more than one child, and there is no widow or widower, fifteen (15) per centum for each child, and in addition thereto, thirty-five (35) per centum to the children as a class, to be divided equally among them.
Fourth. To the parents, twenty-five (25) per centum each.
Fifth. To brothers, sisters, grandchildren and grandparents, fifteen (15%) per centum each.

Section 81-1302 (1) defines widow as follows:

“Widow” shall include only the decedent’s legal wife, living with or dependent for support upon him at the time of his death.

This language is clear and unambiguous. It disposes of Lillie’s claim under her own testimony, given with commendable candor, as already set out. We are not unmindful of our decision in Chicago Mill & Lbr. Co. v. Smith, 228 Ark. 876, 310 S.W. 2d 803 (1958). The claimant in that case, as in the case at bar, was a “legal wife” at the time of the decedent’s death. The Commission denied the widow’s claim on the theory that she was not a dependent within the meaning of the Act. The circuit court affirmed the Commission and we reversed, not on the ground that the widow was dependent as a matter of law simply because she was the decedent’s legal wife at the time of his death, we reversed because there was no substantial evidence to support the Commission’s finding that she was not dependent on the decedent at the time of his death. The evidence pertaining to dependency in Smith is not set out in our opinion and it is not now available to us for discussion.

Certainly we do not now say that a widow who was not living with her husband at the time of his death may nevertheless be dependent upon him for support and entitled to compensation benefits as his widow under the Act. We do say, however, that such dependency is a matter of proof and there was no proof of such dependency in the case at bar. As already pointed out, the proof was to the contrary. The Commission was right in denying the claim of the appellee Lillie Tarpley Evans, and the circuit court erred in reversing the Commission as to her claim.

We now consider the more difficult claim of the children. We are met at the threshold in this connection with the common law presumption, long valid in this state, that a child born to a legally married woman is the legitimate child of the husband and the presumption is one of the strongest presumptions known to the law. It is only rebuttable by the strongest type of evidence such as conclusive evidence of impotency of the husband, or nonaccess between the parties at the time of conception. The moral and social reasons for retaining this common law presumption in domestic relations and in the property laws relating to descent and distribution are too obvious and well known to justify comment, and our-decisions on this point are so numerous and uniform we. deem it unnecessary to cite them. Larson, in his work on compensation law, devotes § 62-22 to “Inroads into Common-Law Tests: Legitimacy,” and points out some of the inroads by judicial decision but primarily by statutory enactment.

We deem it generally accepted that one of the primary reasons for workmen’s compensation law is to protect the injured employee, or his dependents in case of death, from becoming public charges dependent upon charity rather than on remuneration from the industry responsible for the loss, and to spread the loss more evenly throughout industry. With this broad purpose in mind we now examine our statutory provision pertaining to the children involved in the case at bar.

Ark. Stat. Ann. § 81-1302 (j) (Repl. 1960) reads as follows:

“Child” means a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a step-child, an acknowledged illegitimate chi,[d of the deceased or spouse of the deceased, and a foster child. “Child” shall not include married children, unless wholly dependent upon the deceased.

Thus, it is clear that acknowledged illigetimate children of a deceased employee or the spouse of the deceased employee are also entitled to compensation benefits under § 81-1302 (j), supra.

Ordinarily, in workmen’s compensation cases on appeal to this court, we are only concerned with whether there was any substantial evidence to sustain the Commission’s findings or award. But in the case at bar the Commission found that the children here involved were the acknowledged illegitimate children of the decedent wholly dependent upon him at the time of his death and were, therefore, entitled to compensation benefits. The question before us on this appeal, therefore, goes beyond the mere question of whether there was substantial evidence to support the Commission’s findings. The paramount question now before us in the case at bar is whether there was sufficient competent evidence to overcome the presumption against the illegitimacy of the children here involved and we conclude there was not.

The case at bar is easily distinguishable from Stephens & Stephens and Rockwood Ins. Co. v. Logan, 260 Ark. 78, 538 S.W. 2d 516, which is also being decided today. The quantity and quality of the rebutting evidence in Logan was much clearer, stronger and convincing than that offered in the case at bar. The evidence of illegitimacy in the case at bar consisted solely of the testimony of the children’s mother that the decedent, and not her husband, was the father of the children here involved. Her sworn affidavits to the contrary in obtaining delayed birth certificates certainly add nothing to the verity of her testimony. It might well appear that the drafters of our Compensation Act recognized the problems likely to arise in relation to innocent children wholly dependent on a deceased employee at the time of his death and for that reason spelled out in considerable detail exactly who is and who is not a “child” within the meaning of the Act.

This case was submitted to the Commission and decided on the single theory that the claimant-children were the acknowledged illegitimate children of the decedent wholly dependent upon him at the time of his death. The Commission apparently did not consider any of the other definitions of “child” under the Act. We hold that the evidence submitted was not sufficient to overcome the presumption against the illegitimacy of the children in this case and that the judgment of the trial court must be reversed as to the widow and as to the children also. As we have already stated, it is apparent that the claims of the children were presented to, and considered by, the Commission solely as claims of acknowledged illegitimate children of the decedent. It is entirely possible that the Commission would have reached the same results had the claims been considered as claims filed on behalf of foster children, or one of the other definitions for “child” set out in the Act. We conclude that the Commission should have the opportunity of reviewing the evidence in the light of all the definitions of “child” under the Act, and that this case should be remanded to the Commission for that purpose.

The judgment is reversed and the cause dismissed as to the widow. The judgment is reversed as to the children and this cause remanded to the circuit court of Arkansas County with directions to remand to the Commission for such further action pertaining to the claims of the children as the Commission deems necessary not inconsistent with this opinion.

The judgment is reversed and the cause remanded.

      See J. J. Murphy & Son, Inc. v. Gibb, 137 So. 2d 553; Thuillez v. Yellow Transit Freight Lines, 358 P. 2d 676; Kotarske v. Aetna Cas. & Sur. Co., 244 F. Supp. 547; Crilly v. Ballou, 91 N.W. 2d 493; Hubbard v. Midland Contractors,

        Inc., 131 N.W. 2d 209; Smith v. Home Bldg. Contractors, Inc., 363 S.W. 2d 11; Mahlum v. Broeder, 412 P. 2d 572; Ricciardi v. Damar Products Co., 211 A. 2d 347; Stellmah v. Hunterdon Coop. G.L.F. Service, Inc., 219 A. 2d 616; Cates v. Hunt Const. Co., 148 S.E. 2d 604; Newell v. Taylor, 321 P. 2d 294; Jussila v. Dept. of Labor and Industries, 370 P. 2d 582.


source: Caselaw Access Project

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

license: Public Domain

text:
    ARKANSAS SAVINGS AND LOAN ASSOCIATION BOARD and SECURITY SAVINGS AND LOAN ASSOCIATION v. CENTRAL ARKANSAS SAVINGS & LOAN ASSOCIATION
    75-293
    538 S.W. 2d 505
    Opinion delivered June 28, 1976

      Smith, Williams, Friday, Eldredge & Clark, by: William L. Patton Jr. and Hermann Ivester, for appellants.

      Lester & Shults, by: Edward Lester, for appellee.
   Conley Byrd, Justice.

This application for a savings and loan charter by appellee, Central Arkansas Savings & Loan Association, was before us in Ark. S&L Bd. v. Central Ark. S&L, 256 Ark. 846, 510 S.W. 2d 872 (1974) and in Security S&L v. Central Ark. S&L, 257 Ark. 1014, 521 S.W. 2d 220 (1975). On the first appeal we remanded the case to the Arkansas Savings and Loan Association Board because, in denying appellee’s application, the Board had only stated conclusions and had failed to give findings of fact. On the second appeal appellant Security Savings and Loan Association, whose protest had been sustained by the Board, complained that its appeal to the Pulaski Circuit Court was erroneously transferred to the Faulkner Circuit Court. Following those decisions, on this appeal the Faulkner Circuit Court again reversed the action of the Board in denying appellee’s application for a charter. For reversal, appellants, Arkansas Savings & Loan Association Board, hereinafter referred to as the Board, and Security Savings & Loan Association, hereinafter referred to as Security, contend that the findings of the Board are sustained by substantial evidence.

In making their contention, appellants take the position that, for purposes of determining whether the Board’s administrative findings are supported by substantial evidence, we should be governed by the same rule of review as in cases involving jury verdicts. In this connection appellants state:

“Because of this holding the evidence which tended to support a finding that a public need and probability of success did exist is irrelevant and was not included in the abstract.”

With respect to judicial review of administrative findings our Administrative Procedure Act, Ark. Stat. Ann. § 5-713 (Supp. 1973), provides:

(g) The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony may be taken before the court. The court shall, upon request, hear oral argument and receive written briefs.
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) in violation of constitutional or statutory provisions;
(2) in excess of the agency’s statutory authority;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) not supported by substantial evidence of record; or
(6) arbitrary, capricious, or characterized by abuse of discretion.”

The provisions of the federal Administrative Procedure Act were discussed in Universal Camera Corp. v. National L. R. Bd., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1950), with reference to whether a review of an administrative decision based upon the substantial evidence rule could be predicated upon only the evidence supporting the administrative finding when viewed by itself. In holding that such a review should be on the record as a whole, the court said:

“Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation definitely precludes such a theory or review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. ...”

Under the language of the Administrative Procedure Act, supra, we construe the language thereof to give to the courts the same type of review that is applied by the federal courts to the federal Administrative Procedure Act.

The order entered by the Board following the remand of the first appeal is as follows:

“The Board, upon review of the record, finds that the application should be denied for the following reasons:
3. There is not a public need at the present time for the proposed association and the volume of business in the areas in which the association would conduct its business is not sufficient to indicate a successful operation.
The Board hereby makes the following findings of underlying facts upon which this finding is based:
(a) Conway and Faulkner County are within the metropolitan Little Rock trade and market area and a substantial number of Faulkner County residents commute to work in Little Rock and Pulaski County.
(b) There is keen competition for home loans in Conway and Faulkner County by Security Savings & Loan Association of Conway (‘Security’), Morrilton Federal Savings & Loan Association (‘Morrilton Federal’), the two banks in Cohway, savings and loan associations from the Little Rock area, and other institutions from the Little Rock area. The approval by the Federal Home Loan Bank Board of the branch office of Morrilton Federal will increase this competition. There is no need for additional competition for home loans and the volume of home loans is not sufficient to support additional competition.
(c) There is keen competition for savings deposits from Conway and Faulkner County residents by Security, the two banks in Conway, and thrift institutions in Pulaski County. Morrilton Federal has competed for savings deposits from Conway and Faulkner County residents to some extent in the past and will compete for such savings deposits to a much greater extent with the establishment of its branch office in Conway. Thrift institutions in Pulaski County obtain significant amounts of savings from residents of Faulkner County who commute to work in Pulaski County during the normal operating hours for financial institutions. There is no need for additional competition for savings and the volume of savings is not sufficient to support additional competition.
(d) From the standpoint of the services offered to Faulkner County residents, and in light of the services provided to Faulkner County residents in the past, and in view of the relative geographic locations of Morrilton and Conway, the establishment of Morrilton Federal’s branch office in Conway will be comparable to the establishment of a second association in Conway.
(e) The populations of Conway and Faulkner County are not large enough to support an additional association.
(f) With the establishment of an additional association the population per savings and loan association office in Faulkner County would be 10,524 compared to a range from a low of 12,180 to a high of 33,256 for the eight market areas covering the state as defined by Dr. Gene C. Lynch. Without the establishment of an additional association the population per savings and loan association office in Faulkner County will remain at 15,786, which figure falls within the existing range for the above market areas. (All population figures used in these findings are based on the 1970 census).
(g) With the establishment of an additional association the population per savings and loan association in Faulkner County would be 15,786, compared to a range from a low of 17,826 to a high of 39,908 for the above market areas. Without the-establishment of an additional association the population per savings and loan association in Faulkner County will remain at 31,572, which figure falls within the existing range for the above market areas. The figures for population per savings and loan association are inflated because they do not take into account the fact the Morrilton Federal’s Conway Branch is comparable to a local association under the peculiar circumstances recited in finding D.
(h) The age group 15 to 24 makes up 24.9% of the population of Faulkner County and approximately one-third of the population of Conway while the corresponding figure for the state as a whole is 16.9%. The difference in these two figures is the result of the presence of three colleges in Conway. Persons in this age group do not, in general, utilize the services of savings and loan associations. For purposes of comparing population per office and per association in Faulkner County and in the above market areas the population figure for Faulkner is inflated by 8%.
(i) Security was formed and commenced business in 1961. Security’s performance in attracting savings-since its formation has been excellent. During the period 1965-1970 Security obtained savings deposits at a rate of 128% of the national average (based on the comparison of the amount of increased personal income that went into savings deposits in savings and loan associations for the nation as a whole and for Faulkner County). During the period 1966-1970 all savings and loan associations in Arkansas as a whole obtained savings at a rate equal to 124% of the national rate.
(k) In 1971 and 1972 the increase in Security’s deposits was significantly more each year than it had been in any previous year. While the rate at which Security’s deposits increased during .these two years fell below the national average this can be attributed to a reduction in Security’s advertising budget which has since been restored and the impossibility of accounting for deposits of local income in Pulaski County savings and loan associations and Morrilton Federal. Each dollar of local income in these institutions has the same significance as a dollar deposited in Security in making the local to national comparison.
(l) The establishment of Morrilton Federal’s branch office in Conway will place Morrilton Federal in a position to attract significant amounts of savings deposits from Faulkner County residents that it would otherwise be unable to attract.
(m) Per capita income for Faulkner County is $2,602 and for the state as a whole is $2,791.
(n) The performance of Security and Morrilton Federal in meeting home loan needs in Faulkner County has been excellent. Faulkner County residents who finance homes through institutions in Little Rock generally do so for personal reasons having nothing to do with the adequacy of services or amount of financing available locally.
(o) During the period 1968-1972 Security financed over 93% of the value of new residential construction in Conway, while savings and loan associations nationally financed 81% of the value of new residential construction.
(p) The two Conway banks actively seek home loans, primarily on a short term basis of five years or less. Persons obtaining home loans from the banks on these terms generally do so because they prefer such terms or for other personal reasons having nothing to do with the adequacy of services or amount of financing available from the savings and loan associations.
(q) Security’s services regarding home loans are speedy and adequate and, except for an unusual period during which adequate amounts of money for home loans were unavailable on a national basis, Security has always had money available to lend to qualified borrowers.
(r) Interest rates charged by Security for home loans are competitive with other financial institutions which make home loans in Faulkner County.
(s) Morrilton Federal has filled a major portion of the loan needs of Conway and Faulkner County residents for many years, commencing a number of years prior to the formation of Security in 1961. The establishment of Morrilton Federal’s branch office in Conway will enable it to service a larger number and amount of loans.
(t) General economic conditions are highly unfavorable to the establishment of a new savings and loan association at this time. Conditions regarding interest rates are highly unfavorable to the inflow of deposits to savings and loan associations and conditions in the home construction industry are highly unfavorable to prospects for future building activity.
(u) The economic data presented by the applicant did not take into account the impact that Morrilton Federal’s branch office in Conway will have on the Faulkner County economy, the extent to which the branch will fill the need for the services offered by savings and loan associations or the extent to which it will affect the applicant’s chances for a successful operation. The economic data and statistics also inaccurately classify Morrilton Federal as an outside institution when it will provide the same services to Faulkner County residents as a local institution and has to some extent done so in the past.
(v) The economic data presented by the applicant contain a number of errors that make portions of it unreliable and raise doubts as to the other portions. The economic data presented by Security does not contain such errors and is entitled to greater weight.
(w) The opinions given by Dr. Lewis Amis on behalf of the applicant were not supported by a satisfactory explanation of the underlying facts and should not be given substantial weight. Dr. Amis established that he was not familiar with economic conditions in Faulkner County and his cross-examination raised serious doubts as to the validity of the economic data presented by the applicant, especially the statistics relating to mortgage loans.
(x) A sufficient basis for comparing the present application with applications for charters previously granted was not established.
4. The operation of a new association in Conway, Arkansas, will not unduly harm any other existing association or federal savings and loan association or any other financial institution.
The Board hereby makes the following findings of underlying facts upon which this finding is based:
(a) The two banks in Conway did not contend that they would be unduly harmed by the establishment of the proposed association.
(b) The operation of a new association in Conway would result in existing and future deposits and future loans being spread among a larger number of financial institutions, but the operation of a new association in Conway would not result in undue harm to the service area in that the harm would not be severe enough to render the existing institutions incapable of functionally continuing operation.
IT IS THEREFORE ORDERED that the Application for Charter by Central Arkansas Savings and Loan Association be and it is hereby denied.”

The record shows that a total of 59 stockholders subscribed and paid $231,150.00 in cash for 13,400 shares of stock in appellee. The subscribed savings accounts had increased to $1,120,345.00 at the date of the hearing of the application. Ten new industries and 14 new commercial establishments were opened for business in 1972. The 1960 census of Faulkner County showed a population of 24,303 while the 1970 census showed a population of 31,472, representing a 29.9% increase in the population of the county compared to a state-wide increase of 7.7%. Between 1960 and 1970 the personal income of the county increased from $30.3 million to $82.1 million. The total payroll for the same period for covered employment increased 94.3% or from $8.8 million to $25.1 million. Concurrently, the average covered payrolls for the manufacturing industry increased from $4.3 million to $13.2 million, a 205.2% gain. For the same ten year period, retail sales increased from $18.3 million to $46.0 million. Income from governmental employment increased from $3.3 million to $11.8 million. In 1970 the total deposits in banks in the county were $40.9 million, and of those deposits, $22.6 million were in savings and time deposits. Total deposits in the banks had increased to $68,964,000 by December 31, 1972. The savings capital of Security increased from $5,759,-854 in 1967 to $12,045,000 by June 30, 1972. The number of persons on institutional and industrial payrolls increased from 1,709 in 1960 to 6,245 in 1971. The electrical connections inside the city of Conway increased by 190 in 1971 and by 100 in 1972. In Faulkner County, outside the city of Conway, there was an increase of 274 electrical connections in 1971 and of 393 in 1972.

Security is the only chartered savings and loan association in Faulkner County. Security’s deposits were increased by $1,638,000 in 1971, and $2,801,000 in 1972. Dr. John Kane, professor of Economics at the University of Arkansas and former executive vice president of the McElroy Bank in Fayetteville, testified that in Boone County in 1972, the Harrison Savings and Loan Association increased its deposits by $5,346,000 and a second association in Harrison increased its deposits by $2,612,000. The First Federal Savings and Loan Association of Magnolia in 1972 increased its deposits by $3.75 million. The First State Savings and Loan Association of Mountain Home in 1972 increased its deposits $7,-671,000. First Federal Savings and Loan Association of Rogers in 1972 had an increase of $6,999,000. The deposits in First Federal Savings and Loan Association of Russellville did not quite increase $3 million in 1972, but a second association in Russellville had an increase of $1,564,000 for a total county increase of $4,765,000 in savings and loan deposits. The two associations in Searcy had an increase of $3,860,000 for the same year.

Table 13, 13A, 13B and 13C, attached as an appendix to this opinion, were introduced by Dr. Gene Lynch, who testified for Security. Table 15, shown in the appendix to this opinion, was introduced by Dr. Louis Amis who testified for appellee.

Security was chartered in 1961 with a capital of $250,-000. After six months operation it had assets of $645,000, savings of $465,000 and first mortgage loans of $423,000. At the end of 1972 Security had total assets of $14,173,298, savings of $13,269,691 and first mortgage loans of $11,847,-387. Security’s undivided profits in 1972 were $129,000 after taxes.

George Shaw, Jr., testified that he was a director of Security. He owns 10% of the stock in the association, and his family owns another 10%. He testified that when Security started Morrilton Federal Savings and Loan Association conducted the principal savings and loan activity in Conway. That of Morrilton Federal’s 100% of the market he would now say that Security has 70% and Morrilton Federal has 30%.

Arch Ford, a director and founder of Security, estimated that in 1972 Morrilton Federal made loans of about $1,600,-000 to $1,800,000 in Faulkner County while Security made loans of about $2,500,000.

Between the date of the application for appellee’s charter and the hearing date, Morrilton Federal obtained a federal charter for a branch bank in Conway. Security elected not to protest the application of Morrilton Federal for the branch bank.

In the first appeal we remanded this case to the Board because the findings of fact did not comply with the Arkansas Administrative Procedure Act, Ark. Stat. Ann. § 5-710 (Supp. 1973). In so far as here pertinent, that statute provides:

“(b) In every case of adjudication, a final decision or order shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. ...”

In stating our reasons for remanding to the Board, we pointed out that the record contained “not only what appears to be basically factual testimony but also what appear to be conclusions on the part of witnesses.” A clear example of what happens when the Board does not analyze the testimony in connection with its fact findings can be demonstrated by the conclusions set forth in subsections (o) and (r), supra.

In subsection (o) the Board states that “Security financed over 93% of the value of new residential construction in Conway, while savings and loan associations nationally financed 81% of the value of new residential construction.” This information could only come from the testimony of Dr. Lynch, who relied upon Tables 13, 13A, 13B and 13C. (See appendix). Since Table 13 represents only the residential construction done inside the city and since Table 13A represents the total loans made by Security both inside the city of Conway and outside of the city in Faulkner County, the 93% figure can only be computed by presuming that the total loans by Security from 1968 through 1972 were made only inside the city of Conway. Needless to say, the statement in subsection (o) of the Board’s order is so erroneous that its error was admitted during oral argument.

In subsection (r) the Board states that “interest rates charged by Security for home loans are competitive with other financial institutions which make home loans in Faulkner County.” In this connection George Shaw, Jr., a director of Security, after stating that Security’s rates were competitive, stated:

“I’m basing my statement that our rate was competitive with Morrilton Federal and the associations in Little Rock on the results of our loans here.”

However, John Shock, a certified public accountant, testified that the loan on his home was not with Security because he was told that Security’s interest rate was “8%, take it or leave it.” Shock financed his home with Morrilton Federal at a lower rate. The testimony of John Shock is corroborated by that of Security’s manager, who admitted that in a new subdivision containing 50 or 60 homes, Security only made loans on 10 homes in that sub-division. He stated that one reason for Security’s not having more loans in the subdivision was its interest rate.

Security suggests that the granting of Morrilton Federal’s branch-charter should be considered as, in effect, creating another savings institution. However, Security’s failure to protest Morrilton Federal’s branch charter while protesting appellee’s application places Security in the position of admitting that there is room for additional competition in the area but leaves it in the position of selecting its own competition. That the actions of Security speak louder than words on that issue can be seen from the testimony of its manager, Mr. Sly, as follows:

“Q. Do you not believe that this will add to the competitiveness of Morrilton Federal?
A. I don’t think there’s any question about it. I don’t think it will hurt our savings. And this is — I don’t know how to word it exactly. I worry more about our lack of savings than I do our availability of loans. I don’t think Morrilton will hurt us on savings as much as maybe the banks would or another local savings and loan. But I think loans, they’re going to get those anyway. I don’t think there’s going to be that much difference in what they have been doing just by opening an office here.”

Needless to say, the statements of the Board, when viewed from the whole record as distinguished from the conclusions of certain witnesses, are such that they show an abuse of discretion in the consideration of the evidence before the Board.

To take each subsection of the Board’s order and demonstrate how the Board has abused its discretion, including such things as comparing the population of Faulkner County to a market area covering some five counties, including Pulaski County — which is like comparing apples to oranges — would make this opinion longer than appellant’s brief, which consists of 280 pages. What we have set forth demonstrates that the Board abused its discretion and also violated its statutory duty to make “a concise and explicit statement of the underlying facts supporting the findings.” For the violation of the Board’s statutory duty, we remanded this case on the first appeal. However, to remand again would but reward the Board and Security by giving them another two years in which to delay the appellee’s application for a charter. As pointed out by Mr. Justice Frankfurter, in Universal Camera Corp. v. National L. R. Bd., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1950), “Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function.”

When we consider that the statistics show a steady and vigorous industrial growth in Faulkner County; that Security, while obtaining loans in new subdivisions at a rate of only one out of every five or six new homes constructed, had been continuously loaned up for the last six or seven years; and that Morrilton Federal was doing less than one-half of the business done by Security, we cannot find enough substantial evidence in the record to support the Board’s finding that there was not a public need for and that the business in the area was not sufficient to support the successful operation of appellee.

Security also contends that the Board erred in finding that the operation of a new savings and loan association will not unduly harm any other existing association or other financial institution. We find no merit to this contention. In fact, there does not seem to be any substantial evidence to the contrary. The evidence of Security shows that it has had a steady increase in income and that its present annual income, after taxes, exceeds 50% of the original investment. Then too, there is the admission that Security only obtained one loan for each five or six homes built in a new subdivision.

Affirmed.

Fogleman, J., dissents.

APPENDIX

Table 13

RESIDENTIAL CONSTRUCTION CONWAY, ARKANSAS 1968-1972

Units Authorized

One family Multi-family Total value

44 units $1,168,000

13 847,000

73 1.204.000

102 2.004.000

107 3.215.000

1968-1972: 412 units $8,438,000

Table 13A

LOANS MADE IN FAULKNER COUNTY (PRIMARILY CONWAY) BY SECURITY SAVINGS AND LOAN

Year

1968~

1969

1970

1971

1972

Total $7,888,675

Table 13B

VALUE OF NEW RESIDENTIAL CONSTRUCTION IN THE UNITED STATES AMOUNTS FINANCED BY SAVINGS AND LOAN ASSOCIATIONS

Value of new Loans closed by Percent residential savings 8s loan financed by Year construction associations (billions) (billions) savings 8s loan associations

1968 $30.6 $21.3 69.6%

1969 33.2 21.8 65.6

1970 31.9 21.4 67.0

1971 43.1 39.5 91.6

1972 53.9 51.4 95.3

Total $192.7 155.4 80.6%

Table 13C

VALUE OF NEW RESIDENTIAL CONSTRUCTION, CONWAY, ARKANSAS (THOUSANDS)

Loans closed by Loans closed by Security Security Savings 8s Loan as a percentage of new Conway resiSavings & Loan dential constr.

$1,449 124.0%

1,103 130.2

763 63.3

2,128 106.1

2,446 76.0

$7,889 93.4%

Table 15

COMPARISON OF LOCAL SAVINGS AND LOAN MORTGAGE LENDING TO OUTSIDE SAVINGS AND LOANS LENDING IN FAULKNER COUNTY, 1967-1971

Local Savings 8s Loan Outside Savings 8s Loans All Savings 8s Loans Local as Percent of

Number Value Number Value Number Value All Savings & Loans

1967 50 $ 687,750 19 $ 301,550 69 $ 989,300 69.5

1968 100 1,518,814 25 1,023,750 125 2,542,564 59.7

1969 75 1,173,300 40 613,861 115 1,787,161 65.7

1970 58 812,730 21 1,994,899 79 2,807,629 28.9

1971 49 934,650 219 6,701,597 268 7,636,247 12.2

John A. Fogleman, Justice,

dissenting. I might feel that I am doing no more than again voicing my protest previously expressed in such cases as Arkansas Savings & Loan Association Board v. Coming Savings & Loan Ass’n, 253 Ark. 987, 490 S.W. 2d 460; Arkansas Savings & Loan Association Board v. Grant County Savings & Loan Ass’n, 256 Ark. 858, 510 S.W. 2d 863, were it not for the fact that the majority has ignored our own statement as to substantial evidence review in favor of that of another court which is in decided conflict with our own rule. In First Federal Savings & Loan Ass’n v. Union Fidelity Savings & Loan Ass’n, 257 Ark. 199, 515 S.W. 2d 75, decided November 4, 1974, and where we were cognizant of the Administrative Procedure Act, we said:

The appellant recognizes our rule that in this type case we affirm the Board’s action if there is any substantial evidence to support its findings. Morrilton Fed. S&L v. Arkansas Valley S&L, 243 Ark. 627, 420 S.W. 2d 923 (1967). Furthermore, in determining if substantial evidence exists, we consider only the appellee’s testimony or that evidence adduced which is most favorable to the appellee. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935); and Washington Natl. Ins. v. Meeks, 252 Ark. 1178, 482 S.W. 2d 618 (1972). In the case at bar, when we consider the evidence with all reasonable inferences deducible therefrom in the light most favorable to the appellees, as we do on appeal, we are firmly of the view there is substantial evidence to support the Board’s findings.

Not only is that authority ignored, the majority has acted to the contrary. While I will continue my protest as long as I feel that the courts are invading the province of other agencies, I submit that if our own approach to determining substantial evidence is followed in this case, the result reached by the majority is not possible.

I think I should also point out that there is a very significant difference between the statute considered in Universal Camera Corp. v. National L.R. Bd., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1950), relied upon by the majority, and our own act. This decision in itself, was a departure from previous practice of that court. This, however, was accomplished by legislative mandate which was based upon dissatisfaction with the substantial evidence rule as it previously existed. It required that substantial evidence determinations be made by consideration of the record as a whole in both the Administrative Procedure Act and the Taft-Hartley Act. The United States Supreme Court frankly stated that these acts were demonstrative of a legislative mood, which must be respected by the judiciary, when expressed in legislation. But the “new legislation” upon which the court acted, after it had found that the Administrative Procedure Act actually contained the clear expression of legislative intention in both acts, is far different from our own Administrative Procedure Act. The federal act contained and still contains the critical language which required the change of stance of the United States Supreme Court. As recited in 5 USCA § 706, it reads:

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

Significantly, this language is absent from our Administrative Procedure Act, adopted after the United States Supreme Court decision. Its omission should mean that the General Assembly was satisfied with substantial evidence determinations as made under the traditional rule we so recently expressed. It seems to me that this court is in poor position to take such a drastic step based upon the authority of a case which simply recognized the legislative prerogative, particularly when our General Assembly deliberately omitted the mandate upon which that authority is based. The result of such action was aptly expressed in the cited case thus:

We conclude, therefore, that the Administrative Procedure Act and the Taft Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals.

I respectfully submit that the majority has arrived at its conclusion only by picking fragments of testimony that would have supported a result contrary to that of the Board. This approach is even more revolutionary than would be the case if it had simply weighed the evidence on trial de novo. Even though done unconsciously, this is not the purpose of judicial review of administrative action. The effect of utilizing this type of review is to substitute the judgment of the court, which is without expertise on the subject, for that of the Board, which presumably is possessed of expertise. This approach was disavowed in Arkansas Savings & Loan Board v. Southerland, 256 Ark. 445, 508 S.W. 2d 326, where we reversed the action of the circuit court, which had done exactly what this court is doing in this case in reversing the action of the Board.

I do not agree with appellants that the finding of the Savings & Loan Association Board that the operation of a new savings and loan association in Conway will not unduly harm any other financial institution is not supported by substantial evidence, whether the Board’s definition of undue harm was correct or not. However, I am unable to fathom the reasoning process by which the majority concluded that the Board erroneously found that there was no public need for the proposed savings and loan association and that. the volume of business in the area in which the association would conduct its business was not sufficient to indicate a successful operation. The Board made numerous specific findings by which its conclusion was reached. The weakening or elimination of one of them does not destroy the foundation of substantial evidence on which the conclusion was reached. I submit that the majority has done nothing more than attempt to demonstrate the weakness of one or more of those numerous findings, as if the Board’s conclusions were a three-legged stool, which would fall if one leg was sawed from under it. If those particular findings are eliminated, there is still a foundation for the ultimate holding. For instance, short of trial de novo by the courts, no amount of picking at minute details in expert and other testimony will destroy findings of underlying facts (a), (b), (c), (d), (h), (i), (1), (m), (n), (p), (q), (r), (s), (t), (u), (v) and (x), all of which are supported by substantial evidence. These seem to be actually supported by a clear preponderance of the evidence. Furthermore, there is no proper approach for our saying that (w), a matter clearly within the province of the Board, was incorrect, arbitrary, capricious or an abuse of the Board’s discretion. They simply found Dr. Lynch’s testimony plausible and that of Dr. Amis entitled to little weight.

Morrilton Federal Savings & Loan Association had been in business 20 years and had 100% of the home loan market when Security Savings & Loan Association was founded. In the succeeding years, the ratio had become 70% by Security and 30% by Morrilton, excluding some 25% to 30% handled by other lending institutions. Morrilton had obtained approval of a branch office in Conway. The convenience of having this office will necessarily make this association much more competitive both in making loans and obtaining savings deposits, as many witnesses testified. In addition, there was testimony that the Morrilton association had stepped up its activities in Faulkner County and that three employees were actively soliciting business there. Obviously, there was basis for belief that the new branch office presented some of the aspects of a new savings and loan association in Faulkner County. The failure of Security to carry through on its protest of the branch office was explained and is understandable. Morrilton was already in business in Faulkner County and was seeking to retrieve business it had lost to Security. Security would have been in poor position to continue its protest.

I submit that there was evidence other than that pointed out in the majoity opinion, that Security’s loan interest rates were competitive, even though there was some controverting evidence. But it would serve no useful purpose to go through the record and point out factors that subject the analysis made of the evidence in the majority opinion to question. I would point out that no statistical yardstick has been established for making the determinations intrusted to the Board. I must point out some significant factors that furnish a basis for the Board’s action that have been ignored.

First, it was clearly shown that population figures relative to Conway and Faulkner Counties furnished a poor standard of comparison because college students comprise about one third of the population of Conway. Second, the growth rates of the county have declined. Third, Pulaski County institutions compete with Faulkner County institutions for both loans and savings dollars, and will continue to do so. Fourth, the banks in Conway are highly competitive for residential loans, because they are helpful in assuring that the borrowers will otherwise be their customers, and some borrowers prefer a one to five year loan with periodic payments no higher than on a long term loan, but with a “balloon” note for the bulk of the loan. This permits the borrower to readily renegotiate interest rates from time to time and to make larger payments of principal whenever advantageous to him. Fifth, home building was on a definite decline due to shortage and high cost of building materials and builders and developers were finding building of houses for the market less profitable. Probably the largest developer was phasing out its business. Others were building fewer houses. A trend to apartment living was noticeable. Sixth, the Quitman Bank and FHA and VA make residential loans in the county. Seventh, the attractiveness of putting savings into a savings and loan association was diminished because of money market conditions, which made other investments more attractive.

Every one of these factors was important to the determination of both public need and probability of success. They themselves furnish a very substantial basis for, not only the opinion of Dr. Lynch, an eminently qualified economist, but also for the findings of the Board, which was in these respects exercising its expertise.

I must also disassociate myself from the insinuation that the Board is acting to delay appellee’s application.

I would reverse the action of the circuit court.

      Through October 31, 1971


author: Frank Holt, Justice. J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    STEPHENS & STEPHENS and ROCKWOOD INSURANCE CO. v. Emma LOGAN et al, Appellees And Henry Lee DUNN Jr., Cross-Appellant
    75-333
    538 S.W. 2d 516
    Opinion delivered June 28, 1976
    [Rehearing denied July 19, 1976.]

      Shackleford, Shackleford & Phillips, for appellants.

      William E. Johnson, for appellee and cross-appellant; Henry Lee Dunn, Arnold, Hamilton & Streetman, for appellees Rochelle and Blankenship; Switzer, Switzer & Draper, for Linda Carol and Davis Christy.
   Frank Holt, Justice.

This is a workmen’s compensation case. In October, 1973, Eddie Lee Jackson, Oscar Logan and Elbert Davis were passengers in a pickup truck owned and driven by their employer Rogers Blankenship. Rogers had picked the three men up at their homes and they were on their way to a pulpwood cutting work site when the pickup truck collided with a school bus causing the immediate death of all four men. Rogers had purchased his father’s pulpwood business and was supplying pulpwood to Georgia-Pacific through the account of appellant Stephens and Stephens. It is undisputed that at the time of the accident appellant Stephens had workmen’s compensation insurance with appellant Rockwood. Numerous claims by the alleged dependents of the decedents were filed with the Arkansas Workmen’s Compensation Commission against appellants. At the request of Rockwood, W.R. Blankenship, father of deceased Rogers Blankenship, and his workmen’s compensation insurance carrier, Hartford Insurance Company, were made parties respondent to the claims.

The Commission found that the appellant Rockwood was estopped to deny that it extended workmen’s compensation coverage to Rogers Blankenship; Rogers Blankenship was an uninsured subcontractor of Stephens; and all the decedents were statutory employees of Stephens. The Commission also found that Rochelle Blankenship is the widow of Rogers Blankenship and Christie Joy Blankenship is his daughter, who are entitled to benefits; Emma Logan and Christie Lee Davis are not widows within the meaning and definition of the Workmen’s Compensation Act and, therefore, are not entitled to benefits; Elbert Davis is survived by his acknowledged, illegitimate daughter, Linda Carol Davis, who is entitled to benefits; and Henry Lee Dunn, Jr., is not the child of Elbert Davis. The Commission further found that none of the claims were barred by the coming and going rule and Hartford Insurance Company had no policy in effect with W.R. Blankenship that extended coverage to the families of any of the decedents.

The circuit court affirmed the Commission’s findings except it reversed the Commission’s findings that Emma Logan is not the widow of Oscar Logan and Christie Lee Davis is not the widow of Elbert Davis. From this order comes this appeal. Henry Lee Dunn, Jr., cross-appeals from the court’s order affirming the Commission’s finding that he is not the dependent child of Elbert Davis.

We first consider appellants’ contention that there is no substantial evidence to support the Commission’s finding that appellees’ decedents were not employees of W.R. Blankenship. We do not agree. Appellants recognize that the finding of the Workmen’s Compensation Commission will be affirmed if there is substantial evidence to support it. We further observe that in determining if there is substantial evidence to support the factfinder, we need only ascertain that evidence, although contradicted, which is most favorable to the appellee. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W. 2d 304 (1975). In the present case there is testimony by Rogers Blankenship’s father and his wife that Rogers had bought the pulpwood operation from his father in February, 1973, under a rental purchase agreement. By the terms of the agreement, he was paying his father $200 a week on the equipment until a total of $30,000 was paid. Rogers applied for and got a Federal Employer’s Identification Number in July, 1973, and began making his own payroll. He hired, fired and supervised the employees in his pulpwood operation. He had employed all three of the individuals who were killed in the truck with him. Edgar Stephens, sole owner of appellant Stephens & Stephens, testified that Rogers Blankenship was one of his pulpwood subcontractors. Stephens stated he knew that Rogers had bought or was buying this equipment from his father because Rogers’ mother had so told him (Stephens) about a month before the accident. There is ample substantial evidence that Rogers Blankenship was not his father’s employee and at the time of the fatal accident was the employer of the three men who were killed in the truck with him.

Appellants assert that the Commission’s finding that they are estopped to deny coverage is not supported by substantial evidence. Appellants argue it is not relevant that Rockwood had consistently paid claims on subcontractors knowing they were subcontractors. We cannot agree.

We deem it necessary to discuss some background facts concerning the pulpwood industry in Ashley County. For at least the last ten years, Georgia-Pacific has purchased pulpwood from only two sources in Ashley County, appellant Stephens and another individual, Marcel Baker. Each was assigned a zone of operation in the county and sometimes a quota. Their subcontractors (such as Blankenship) would cut and deliver pulpwood directly to the Georgia-Pacific mill; however, payment was made either to appellant Stephens or Baker, as the case may be. When Georgia-Pacific paid either appellant Stephens or Baker, it withheld premiums for workmen’s compensation insurance from the remuneration due the dealers based on the cords of wood delivered by the subcontractors. Georgia-Pacific would then pay these premiums directly to the Guy Nolley Agency, agent for appellant Rockwood. The dealer would then deduct the premium when he paid the subcontractor. It was estimated that the annual premium for workmen’s compensation coverage for forty-two contractors-producers was $215,000.

W. R. Blankenship, Rogers’ father, testified that in 1970 he made a verbal contract with appellant Stephens to cut and haul pulpwood to Georgia-Pacific through the Stephens’ account. At the time of the initial agreement, Stephens advised him that he would pay him once a week for the wood produced and that workmen’s compensation insurance would be deducted from the pay he received. Stephens told him that anyone who worked in connection with the cutting, hauling or loading of the pulpwood was covered under his (Stephens ’) policy of workmen’s compensation insurance. When Blankenship sold the equipment to his son Rogers, he told his son that workmen’s compensation insurance premiums were being withheld and Rogers and his men would be covered under Stephens’ workmen’s compensation policy. Stephens corroborated this understanding by testifying that he told his subcontractors he considered all of them and their employees as his employees for purposes of workmen’s compensation coverage. He never made any distinction between the subcontractors and their employees when he reported any injuries to appellant Rockwood. Stephens himself had had no employees since 1964. In other words he carried workmen’s compensation with appellant Rockwood for the benefit of his subcontractors and their employees. He considered Rogers Blankenship one of his subcontractors. Rogers’ wife testified that when one of Rogers’ men was injured, he would be referred to Edgar Stephens who handled the claim for them.

Harry Whatley, the adjuster for Rockwood in southern Arkansas, testified that he did all of the adjusting for Rockwood on the policies of insurance written for Stephens during the past ten to fifteen years. He knew as early as 1968 that Stephens was producing pulpwood exclusively through subcontractors. He said, as far as he was concerned, it didn’t make one bit of difference whether the man that got hurt was a subcontractor or a producer or whether he was an employee of a subcontractor, as long as he was hurt while he was working and producing wood for Stephens. When various claim forms were sent to Whatley’s office, he would correct them if necessary to show the name of Stephens & Stephens as the employer and listed the subcontractor as foreman.

Dale Schrock, claims supervisor for Rockwood, testified that Rockwood paid claims whether they were subcontractors or employees of subcontractors. As an examiner or claims supervisor, he didn’t make any distinction in their status in determining whether or not the claimant was covered. Rockwood had not denied a single claim filed by Stephens until this accident resulting in these death claims. It is undisputed that appellant Rockwood issued workmen’s compensation policies to Stephens during the past ten years, accepted premiums thereon, and has consistently paid numerous claims on Stephens’ subcontractors and their employees during this time without making any distinction between them. Some of these claims involved three of the four employees who were killed. There is evidence that the subcontractors and their employees were led to believe they had workmen’s compensation coverage by what they were told, by the premiums deducted and paid.

The evidence is amply substantial to support the;Commission’s finding that appellants were estopped to deny coverage. See Phoenix of Hartford v. Coney, 249 Ark. 447, 459 S.W. 2d 558 (1970); Hale v. Mansfield Lbr. Co., 237 Ark. 854, 376 S.W. 2d 670 (1964); and Stillman v. Jim Walter Corp. 236 Ark. 808, 368 S.W. 2d 270 (1963). Consequently, here, we find no merit in appellants’ assertion that the Commission’s finding that appellees’ decedents were statutory employees of Stephens & Stephens is erroneous and unsupported by substantial evidence.

Neither can we agree with appellants’ contention that the evidence is insubstantial to support the Commission’s finding that the claims are not barred under the going and coming rule. Appellants argue that there is no evidence at all to prove Rogers Blankenship’s death arose out of and in the course of his employment. Appellant argues further that the only possible way the claimant could escape the operation of the going and coming rule would be to invoke the dual purpose doctrine; it has not been proven that a business purpose would have been made had not the personal purpose, that is going to work, been accomplished. Also the record is totally bereft of any proof that Rogers Blankenship was transporting anything to the woods relating to the cutting operation other than giving his “own’’ employees a ride.

The testimony is undisputed that it was Rogers Blankenship’s regular and customary practice to pick up part of his crew each morning and transport them to the work site and home again. On the morning of the accident, Rogers had filled his truck’s gas tank, picked up his men and was taking them out to the job site. He paid another employee an extra hourly wage to transport the rest of his crew to the job site and return them home. Each day Rogers carried ice for the water kegs, as well as extra gas and oil necessary for the equipment, which he transported to the job site. W. R. Blankenship testified that it was absolutely necessary for someone to buy the gas and oil, pick up the ice, water and other supplies which were needed for the day’s operation. If Rogers did not do it, someone else would have to. The evidence is amply substantial to support the Commission’s finding that the claims were not barred under the going and coming rule. See Larson, Workmen’s Compensation, § 18.10 et. seq. (1972); Blankinship Logging Co. v. Brown, 212 Ark. 871, 208 S.W. 2d 778 (1948); and Hunter v. Summerville, 205 Ark. 463, 169 S.W. 2d 579 (1943).

Appellants assert, however, there is substantial evidence in support of the Commission’s finding that appellee Christie Lee Davis, was not entitled to widow’s benefits and, therefore, the trial court erred in reversing the Commission. We must agree. The Workmen’s Compensation Act, Ark. Stat. Ann. § 81-1302 (1) (Repl. 1960), defines a widow as follows:

‘Widow’ shall include only the decedent’s legal wife, living with or dependent for support upon him at the time of his death.

Appellants argue that in order to qualify for widow’s benefits two separate elements must be proved: (1) that the claimant was the decedent’s legal wife and (2) that she was either living with or dependent for support upon him at the time of his death. Appellant asserts that claimant, Christie Lee Davis, does not meet the statutory requirements that she was either living with or dependent upon the decedent at the time of his death and, therefore, has only met one of the criteria to be a widow entitled to benefits. Appellee Davis responds that Arkansas is one of those states which conclusively presume dependency based on the mere existence of the legal relationship, citing Chicago Mill & Lumber Co. v. Smith, 228 Ark. 876, 310 S.W. 2d 803 (1958). We must agree with appellants’ position since we hold, as did the Commission, that Chicago Mill is not controlling in the case at bar. There we observed “here, the husband and father was completely void of any sense of his family obligation. ” In the case at bar there is no evidence that Elbert Davis was insensitive to his family obligations. Christie testified that she had “completely separated” from Elbert in 1967 or 1968 and had not lived with him since that time. Since then she admits having two illegitimate children who were fathered by her “boyfriend,” Henry Lee Dunn. She is gainfully employed and Henry contributes to her support. According to her she refused Elbert’s support. She admitted that “[H]e has offered me money at times, but I would not accept it from him.” Clearly, the facts of this case are distinguishable from Chicago Mill. There is ample substantial evidence to support the Commission’s finding that Christie Lee Davis is not the widow of Elbert Davis within the meaning and definition of the Workmen’s Compensation Act and, therefore, is not entitled to benefits.

Henry Lee Dunn, Jr., contends on cross-appeal that there is no substantial evidence to support the Commission’s finding that he is not the son of Elbert Davis. Cross-appellant asserts that the presumption of legitimacy is so strong that it can only be overcome by “the clearest evidence” of either impotency or non-access. Morrison, Admx. v. Nicks, 211 Ark. 261, 200 S.W. 2d 100 (1947). Appellants recognize the strong presumption of legitimacy of a child during wedlock. However, they argue that the presumption has been overcome and, therefore, the finding by the Commission that Henry Lee Dunn, Jr., is not the son of Elbert Davis is supported by substantial evidence. We must agree with the appellants.

Christie Lee Davis, cross-appellant’s mother, and Elbert Davis, decedent, were married in 1959. They had no children when they separated approximately nine years later. Elbert was killed in 1973 or about four years following their separation. Christie Lee testified that she had access to or sexual relations with Elbert, the decedent, up until she left him in November, 1968, which was about seven and one-half months before Henry, Jr., was born in July, 1969. However, this contradicts her earlier signed statement in which she said she separated from Elbert in late 1967 or early 1968. According to her testimony at the hearing, there is a “possible chance” that Elbert is the father. About a month following the last asserted separation, she admittedly began having sexual relations with Henry Lee Dunn. She admitted in her signed statement that Elbert Davis was not the father of her son, Henry Lee Dunn, Jr. She testified that she had told the individual who took her statement that Henry Lee Dunn is the boy’s father and she had told Elbert the boy was not his. Henry Lee Dunn, himself, signed a statement at the hospital when the child was born acknowledging the child was his. She also admitted that she told the nurse attending her at the hospital that Henry Lee Dunn was the father of the child. The birth certificate, signed by her doctor, reflects the child’s name as Henry Lee Dunn. She, further, admitted that Henry Lee, the father, was living with her when the child was born and subsequently she had two other children by him. She agrees they are Henry Lee’s children and she claims no benefits for them. Henry Lee supports all three of the children.

When we review that evidence which is most favorable to the appellee, as we must do on appeal, we hold the Commission’s finding, that Henry Lee Dunn, Jr., is not the son of the decedent Elbert Davis, is supported by the clearest evidence of a substantial nature. Cf. Richardson v. Richardson, 252 Ark. 244, 478 S.W. 2d 423 (1972).

Appellants also contend that the Commission’s finding that Emma Logan was not entitled to widow’s benefits is supported by substantial evidence and, therefore, the court erred in overruling the Commission. The Commission found that they could assume that Emma Logan was the legal wife of decedent but that she was not living with nor dependent upon the decedent at the time of his death. As indicated, the Workmen’s Compensation Act, Ark. Stat. Ann. § 31-1302 (1) (Repl. 1960), defines widow as:

‘Widow’ shall include only the decedent’s legal wife, living with or dependent for support upon him at the time of his death.

In the present case appellee Emma testified that she married Oscar in 1947. Two years later they separated and remained separated for about twenty-five years. During this interval she was married to two other men. She had two children by one of these marriages. She never divorced Oscar nor had she ever received any papers stating that he had sued her for divorce. During the last three years preceding Oscar’s accidental death, she lived “off and on” with him on weekends at his residence or he would visit with her at her home in a nearby town. He contributed some to her support and without her knowledge he had included her in his 1970 and 1972 income tax returns.

The Commission found that Chicago Mill & Lumber Co. v. Smith, supra, is not applicable and we agree. As indicated, in Chicago Mill we observed the husband was insensitive to his marital obligations. Certainly, we do not believe that the legislature intended that a widow can claim benefits as a dependent when, as here, she abandons a marriage for twenty-five years during which time she marries two other men and has children by one of those marriages. This is true even though she testified that during the past three years she lived intermittently on weekends at his or her residence and he contributed some to her support. Suffice it to say that there is substantial evidence to uphold the Commission’s finding that she was not the widow of Oscar Logan within the meaning and definition of he Workmen’s Compensation Act.

Affirmed in part and reversed in part on direct appeal.

Affirmed on cross-appeal.

Smith and Jones, JJ., concur.

Fogleman, J., dissents.

J. Fred Jones, Justice.

I agree with the majority opinion in this case but for additional reasons than those expressed by the majority. I consider dependency more important than genealogy when considering the claims of children in compensation death cases.

It is my view that in compensation death cases, no one except dependents of a deceased employee is entitled to compensation benefits under the Act. Ark. Stat. Ann. § 81-1315 (Repl. 1960). Subsection (c) of § 81-1315 reads as follows:

Subject to the limitations as set out in section 10 [§ 81-1310] of this act, compensation for the death of an employee shall be paid to those persons who are wholly dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference.
First. To the widow if there is no child, thirty-five (35) per centum, and such compensation shall be paid until her death or remarriage.
To the widower if there is no child, thirty-five (35) per centum, and such compensation shall be paid during the continuance of his incapacity or until remarriage.
Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen (15) per centum on account of each child.
Third. To one child, if there is no widow or widower, fifty (50) per centum. If more than one child, and there is no widow or widower, fifteen (15) per centum for each child, and in addition thereto, thirty-five (35) per centum to the children as a class, to be divided equally among them.
Fourth. To the parents, twenty-five (25) per centum each.
Fifth. To brothers, sisters, grandchildren and grandparents, fifteen (15) per centum each.

Section 81-1315 (i) provides for partial dependents as follows:

(1) If the employee leave dependents who are only partially dependent upon his earnings for support at the time of injury, the compensation payable for such partial dependency shall be in the proportion that the partial dependency bears to total dependency.
(2) In any claim for partial dependency where the average weekly contributions for support were not such as to entitle all dependents to compensation in the aggregate sum of seven dollars [$7.00] per week, such dependents shall receive compensation for a period not to exceed 450 weeks, in an amount not to exceed the amount of average weekly contributions of the deceased employee for the support of such dependents.

Of course, a widow legally married to, and living with, the decedent at the time of his death is made wholly dependent under § 81-1315 (c) as a matter of law by definition under § 81-1302 (4) (1) but not so with the children.

It is my view that a child must be wholly or partially dependent under § 81-1315 (c) or (i), supra, and, if it is dependent upon the deceased, it makes no difference under § 81-1302 (j) whether it is a natural child, a posthumous child, a preinjury adopted child, a step-child, an acknowledged illegitimate child of the decedent or spouse of the decedent, or a foster child. Conversely, if an employee decedent under the Act should leave surviving him a child or children in each of the above categories, none of them would be entitled to compensation benefits under the Act unless wholly or partially dependent upon the decedent at the time of his injury (§ 81-1315 [h]). Proof of dependency and the burden of proof are entirely different matters.

I am not unmindful of the language employed concerning the dependent children in Chicago Mill & Lbr. Co. v. Smith, 228 Ark. 876, 310 S.W. 2d 803, and the child in Holland Const. Co. v. Sullivan, 220 Ark. 895, 251 S.W. 2d 120. Certainly I would agree that a child may be wholly dependent upon its parent for support whether it is actually receiving support or not, as was the situation in Chicago Mill, supra, as I interpret our decision in that case. It is my view that actual contribution of support money is, at the most, only some evidence of dependency. I would indulge a rebuttable presumption of total dependency of a natural child of a deceased employee when the child is under 18 years of age, but that is as far as I could go under the law, as I interpret it.

I have no quarrel with the Holland decision under the law as it was when that case was decided. The 1939 Compensation Act, Act 319 of 1939, applied to Holland, and in the 1939 Act § 15 (c) simply provided as follows:

(c) Subject to the limits prescribed in Section 15 (b) the following percentage of the average weekly wages of the deceased employee shall be paid as compensation for death to the persons entitled thereto under this Act, and the following order of preference:
(1) To the widow if there is no child, thirty-five (35) per centum, and such compensation shall be paid until her death or re-marriage;
(2) To the widower if there is no child, thirty-five (35) per centum, and such compensation shall be paid during the continuance of dependency or until re-marriage;
(3) To the widow or widower if there is a child, the compensation payable under paragraph (1) or (2) as the case may be, and, in addition thereto, ten (10) per centum on account of each such child; in case of the death or re-marriage of such widow or widower, fifteen (15) per centum for each child;
(4) To the children, if there is no'widow or widower, fifteen (15) per centum for each chilcl, and in addition thereto, thirty-five (35) per centum to be equally divided between said children, and if there be only one child, he or she shall receive the entire fifteen (15) per centum, plus the additional thirty-five (35) per centum.
(5) To the parents, twenty-five (25) per centum to each, and such compensation shall be paid during the continuance of dependency;
(6) To brothers, sisters and grandchildren, fifteen (15) per centum for each brother, sister, or grandchild.

In § 2 (j) of the 1939 Act “child” was defined as follows:

“Child” includes a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but shall not include married children unless wholly dependent upon deceased. “Grandchild” means a child as above defined of a child as above defined. “Brother” and “Sister” includes stepbrothers and step-sisters, half brothers and half sisters, and brothers and sisters by adoption, but shall not in-elude married brothers nor married sisters unless wholly dependent upon the deceased. “Child,” “grandchild,” “brother,” and “sister” shall include only persons who at the time of the death of the deceased are under the age of eighteen (18) years.

These sections of the 1939 Act were all changed by the adoption of Initiated Measure No. 4 in 1948, Ark. Stat. Ann. §§ 81-1301 — 81-1349. Section 81-1315 (c) now appears as above set out and “child” is defined in § 81-1302 (j) as follows:

(j) “Child” means a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a step-child, an acknowledged illegitimate child of the deceased or spouse of the deceased, and a foster child. “Child” shall not include married children, unless wholly dependent upon the deceased.

Thus, married children were excluded from the definition of “child” under the 1948 Act but were placed back within the statutory definition of “child” if still totally dependent upon the decedent after marriage. The same applies to children above 18 years of age under (j) (3) if they are mentally or physically incapacitated.

Partial dependency as provided in § 81-1315 (i) (1) and (2) was not mentioned in the 1939 Act, and partial dependency is not involved in this case, but certainly there is no evidence in the record that Henry Lee Dunn, Jr. was dependent to any extent on the decedent at the time of his injury which resulted in death. I do not say that the absence of affirmative evidence of dependency standing alone should defeat Henry Lee’s claim; I do say, however, that, in my opinion, the affirmative evidence that Henry Lee, Jr. was not dependent upon the decedent, with no evidence to the contrary, was alone sufficient to defeat his claim. Consequently, it is my view that whether Henry Lee, Jr. was illegitimate as a matter of proof or legitimate as a matter of unrebutted presumption, it makes no difference in this case. Regardless of who his father was, he was not a dependent of the decedent under the evidence in the record as I read it and he was not entitled to compensation as a dependent child under the compensation law as I interpret it.

I cannot escape the feeling that there must have been some reason for, and purpose in, adding the total and partial dependency provisions in the 1948 Act when it did not exist in the 1939 Act; and, if the Chicago Mill and Holland decisions are interpreted to only require proof of age of the children and their relationship to the decedent to the exclusion of proffered evidence of nondependency, I would overrule those decisions to that extent. It must be remembered that parents may be dependents of employed children and entitled to compensation benefits under the Act as well as the other way around. If a 17 year old child is a dependent within the meaning of the Act simply by virtue of the relationship to its father, what about a father’s claim for death benefits when wholly or partially dependent on the 17 year old child?

George Rose Smith, J., joins in this concurrence.

John A. Fogleman, Justice,

dissenting. I concur in all of the majority opinion except that part relating to the cross-appeal on Henry Lee Dunn, Jr. I must take exception to that portion and to the approach taken in the concurring opinion. First, I should say that even though I would probably agree philosophically with the approach taken by my brother Jones in his concurring opinion, it seems to me to have been foreclosed by the interpretation given Ark. Stat. Ann. §§ 81-1302 (j), 81-1315 (c) and 81-1315 (d) (Repl. 1960) in Chicago Mill & Lumber Co. v. Smith, 228 Ark. 876, 310 S.W. 2d 803, where we said:

*** This section of the Act [81-1302 (j)] is fairly open to the construction that unmarried children are entitled to compensation although the deceased parent was not supporting them at the time of his death, but married children are not entitled to compensation unless they were wholly dependent on deceased.
*****
It would be possible to construe this provision of the Act [81-1315 (c)] as depriving a widow or child of any compensation when, as here, the husband and father was completely void of any sense of his family obligation. But it is a rule that remedial legislation shall be liberally construed. We believe the Legislature used the term “wholly dependent” in the sense of applying to those ordinarily recognized in law as dependents, and this would certainly include wife and children. ***
In Holland Construction Co. v. Sullivan, 220 Ark. 895, 251 S.W. 2d 120, in construing the 1940 Workmen’s Compensation Law it was held that the child of a deceased natural parent was entitled to compensation, although he had not been dependent on the natural parent — in fact, the child had been adopted by another person, who was supporting him. Appellant contends that the 1948 Workmen’s Compensation Act amended the 1940 Act to the extent that the child of a deceased parent cannot recover when the parent at the time of his death was not contributing to the support of the child. True, the Act could be so construed, but such a construction would leave unsolved the meaning of Ark. Stat. § 81-1302 (j), which says that a married child does not come within the definition of “child” unless wholly dependent. Nor do we think that § 81-1315 (c), dealing with partial dependency, precludes recovery by the wife and children who are dependents within the usual meaning of the word. There is no contention in this case that the mother or children are capable of taking care of themselves. For all the record shows, they perhaps are the objects of charity.

Then we followed Holland Construction Co. v. Sullivan, 220 Ark. 895, 251 S.W. 2d 120, where we held that a child was a dependent of his natural father, even though he had been adopted by another, regardless of the fact that there was no actual dependency of the child upon his natural father, before the change in statute in 1949 mandated that result. In that case, we said:

Thus, there is entirely absent from the 1939 Workmen’s Compensation Law, any statement either (a) that the act of adoption takes a child out of the terminology of “child” of the natural father, or (b) that actual dependency must be proved as regards a natural child under 18 years of age. in fact, the Act looks entirely to the opposite conclusion: because in Sec. 81-1302 (j) [Ark. Stat. Ann. 1947], a stepchild or an acknowledged illegitimate child must be shown to be dependent on the deceased; and a married child is not included unless wholly dependent on the deceased. The requirement of proof of dependency for stepchildren, acknowledged illegitimate children and married children, indicates rather clearly that dependency does not have to be proved as regards a natural child under 18 years of age. Likewise, under § 81-1315 (d) [Ark. Stat. Ann. 1947], as above quoted, it is stated that the dependence of a child will terminate at 18 except for a physically or mentally incapacitated child. The statement—that a physically or mentally incapacitated child may be found to be dependent after 18—indicates that no proof of dependence need be made by any natural child who is under 18 years of age.

Changes in the law since this case was decided have not made its precepts less applicable. There is no longer a requirement that a stepchild or an acknowledged illegitimate child be wholly dependent upon the deceased, as there was in the 1939 law. Cf. Ark. Stat. Ann. § 81-1302 (j) (1947) and Ark. Stat. Ann. § 81-1302 (j) (Repl. 1960). Children over 18 years of age are still not dependents unless physically or mentally handicapped. See Ark. Stat. Ann. §§ 81-1302 (j) (3) and 81-1315 (d) (Repl. 1960). Furthermore, in Sullivan, we cited with approval a Delaware holding, which in turn quoted from a Pennsylvania decision, that a legitimate child is entitled to workmen’s compensation benefits from the employer of the child’s deceased parent, irrespective of actual dependency. So “genealogy” is, after all, more important than dependency as our act has been written and interpreted.

While the majority gives lip service to the presumption of legitimacy, I find no precedent for the casual treatment given it in finding somehow that there was support for the commission’s findings “by the clearest evidence of a substantial nature.” [Emphasis mine.]

In this case the commission failed to properly apply the presumption that has been said to be one of the strongest known to the law, i.e., that a child born during wedlock is the child of the husband. Thomas v. Barnett, 228 Ark. 658, 310 S.W. 2d 248. The general rules as to burden of proof in common law actions for personal injuries and in civil actions generally, ordinarily apply to workmen’s compensation proceedings. Bradshaw v. Claridy, 213 Tenn. 297, 375 S.W. 2d 852 (1964). See also, Pannell v. State Compensation Commissioner, 126 W. Va. 725, 30 S.E. 2d 129 (1944). The presumptions applied in common law and civil cases are also commonly applied in workmen’s compensation cases. See, e.g., Brynildsen v. Mt. Vernon Novelty Curtain Co., 239 App. Div. 566, 268 N.Y.S. 600 (1933); RCS Lumber Co. v. Sanchez, 136 Colo. 351, 316 P. 2d 1045 (1957). The general principle as to presumptions as to legitimacy and the burden of proof to rebut it which is applicable in other cases is likewise applicable in workmen’s compensation cases. Hooley v. Hooley, 141 Ind. App. 101, 226 N.E. 2d 344 (1967); 2 Workmen’s Compensation Law, Larson, 11-37, § 62.22. Evidence to rebut the presumption of legitimacy must be clear, cogent and convincing. Hooley v. Hooley, supra; Ash v. Modern Sand & Gravel Co., 234 Mo. App. 1195, 122 S.W. 2d 45 (1938).

By application of such presumptions, it has been held in workmen’s compensation cases that the presumption of legitimacy may be overcome by evidence that the husband could not have had access to the mother when, in the course of nature, the child must have been conceived. Hooley v. Hooley, supra; Ash v. Modern Sand & Gravel Co., supra; Smith v. National Tank Co., 350 P. 2d 539 (Wyo., 1960). Even in compensation cases, in order to overcome the presumption of legitimacy, it has been held, on the basis of rules in other civil cases, that it must be shown conclusively that the lawful husband could not have had intercourse with the wife at the beginning of any reasonable period of gestation. Ash v. Modern Sand & Gravel Co., supra.

We have said that the presumption may be overcome by sufficient evidence of impotency or entire absence of the husband at the time when the child, in the course of nature, could have been begotten. Earp v. Earp, 250 Ark. 107, 464 S.W. 2d 70. The presumption may be overcome only by the clearest evidence that the husband was impotent or without access to the mother. Thomas v. Barnett, supra. We have said that it must be plainly proved that it was impossible that the husband could have been the father. Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22. This may be done by blood tests or by showing that the husband could not have had access to the mother. Richardson v. Richardson, 252 Ark. 244, 478 S.W. 2d 423; Jacobs v. Jacobs, supra.

This degree of proof was not even remotely approached in this case. There was no evidence which could possibly have afforded a basis for overcoming the presumption other than the testimony of Christie Lee Davis. She testified that she and Elbert Davis lived in Crossett until the last of November, 1968, having then been separated a week or two. She said she would come and go and that he would come to Hamburg where she was and go back to Crossett and that the final separation was in the last part of November. Both continued to live in Ashley County until his death. She said that he continued to “come around her” until his death. Henry Lee Dunn was born on July 14, 1969, six to seven months after the separation. She started seeing Henry Lee Dunn, Sr. in December, 1968. She said that only Elbert Davis could be this child’s father, but on another occasion said that he “could have” been. She said she had sexual relations with Davis right up to the time of the separation, and had not during the preceding six months had sexual relations with anyone else. The physician’s records showed that this child’s birth was normal.

We have said that when the husband resided within thirty miles of the place the wife lived at all times within the period in which the child could have been begotten, it is a matter of common knowledge that access of the husband is not impossible. Scott v. State, 173 Ark. 625, 292 S.W. 979.

It is true that the credibility of this witness was suspect because of the fact that she had made conflicting and contradictory statements, but still her testimony is the only evidence that could have been the basis for rebuttal of the strong legal presumption. Discounting her testimony because of her obvious interest would strengthen, rather than weaken, the presumption.

Whatever adults may have said about the paternity of Henry Lee Dunn, Jr., he has never been consulted or given an opportunity to speak. Because he cannot, the strongest presumption known to the law was afforded for the protection of those like him, and no one else. It seems capricious to sweep it away on the unsatisfactory evidence presented. A liberal interpretation and application of the Workmen’s Compensation Act calls for better treatment of this helpless minor. I would reverse the judgment of the circuit court and the action of the commission on the claim of Henry Lee Dunn, Jr.

      The Commission’s award to the dependents of Eddie Lee Jackson is not a part of this appeal.