author: . Frank Holt, Justice. John A. Fogleman, Justice,

text:
    TRACE X CHEMICAL, INC. v. HIGHLAND RESOURCES, INC., ET AL
    78-292
    579 S.W. 2d 89
    Opinion delivered April 9, 1979
    (In Banc)

      E. E. Maglothin, Jr., for appellant.

      Hamilton H. Singleton and Dennis L. Shackleford of Shackleford, Shackleford & Phillips, P.A., for appellees.
   . Frank Holt, Justice.

Appellee Highland brought suit alleging that appellant, its lessee, had breached various lease agreements and sought possession and damages for accrued rent. Appellant answered and counterclaimed alleging compliance with the lease agreements and asserted that appellee Highland was the party who had breached the leases. By counterclaim appellant sought damages for improvements made by it to the leased premises and requested that the cause be transferred to a court of law. Appellee Highland filed a motion for summary judgment, stating that there was no issue of fact as to the breach of the leases since both parties had alleged a breach. The chancellor granted Highland’s motion, finding that both had alleged breaches and that, based upon those allegations the lease agreements were terminated. Possession of the property was awarded to appellee Highland with the right to remove appellant’s property from the premises. The chancellor transferred the issues of liability and damages to the circuit court for determination. Hence this appeal.

We first consider appellee Highland’s motion to dismiss this appeal, asserting that the chancellor’s order is not appealable. We hold that the order is appealable since it concluded the parties’ rights to possession of the property. See Ark. Hwy. Comm’n. v. Kesner, 239 Ark. 270, 388 S.W. 2d 905 (1965); and Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1967). Accordingly, we deny appellees’ motion to dismiss.

We next discuss appellant’s contention that the court erred in granting a summary judgment and awarding appellee Highland possession of the property. A summary judgment, being an extreme remedy, should only be granted when it is clear there is no issue of fact to be litigated; and, before one is entitled to a summary judgment, it is incumbent upon the movant, here the appellee, to show there is no existence of a fact issue. Robinson v. Rebsamen Ford, Inc., 258 Ark. 935, 530 S.W. 2d 660 (1975). The object of a summary judgment is not to try the issue but to determine if there are issues to be tried. Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76 (1969). If there is any doubt whatever, it should be denied. Southland Ins. v. Northwestern Nat’l. Ins. Co. 255 Ark. 802, 502 S.W. 2d 474 (1973).

Here, as noted, appellee Highland alleged, inter alia, that appellant had breached in various ways the lease agreements between them. Appellant denied that allegation and alleged that appellee Highland was the breaching party. Appellees argue that appellant conceded that the leases had been breached in its response to the motion for summary judgment and supporting brief, where it made the statement: “True, there may not be a question that the leases have been breached .. . Both . . . allege in their pleadings that the leases have been breached . . . This fact may not be controverted. ” We do not agree that this was a concession that no controversy existed; appellant merely recognized the fact that it “might not,” which is different from saying that it “does not” exist. Each alleged a different, basis of a breach or breaches. The issue was which one breached the leases. An issue is not decided simply because both parties to a lawsuit allege the same conclusion of law. Here, both or either party could fail to meet the required burden of proof to show that the other breached the leases.

Appellant sought in its counterclaim to have the entire case transferred to a court of law. The chancellor, as indicated, after granting Highland possession of the property based upon its motion for summary judgment, transferred the remaining issues of liability and damages to a court of law. Since we hold the motion for summary judgment was incorrectly granted, we are of the view that the entire cause should be transferred to a court of law.

Reversed and remanded.

Fugleman, J., dissents.

John A. Fogleman, Justice,

dissenting. Many years ago, this court was admonished not to reverse a case for an error that is not prejudicial, i.e., does not affect a substantial right of any party. Ark. Stat. Ann. § 27-1160 (Supp. 1977). No citation of authority is necessary to show that we have, on hundreds of occasions, given heed to the admonition. I do not concede that there was any error in the action of the trial court here, but if there was, it was not only harmless, it was innocuous, insignificant and trivial. The reversal in this instance is purely ceremonial and wholly unnecessary.

The trial court transferred the issues of liability and damage to the circuit court. The majority holds that the summary judgment was incorrect and that the entire case should be transferred to a court of law. There really is no difference at all in what the chancery court did and what the majority says should be done.

The trial court held that there had been a breach of the lease contract. It left the question of liability to be determined by the trial court. The question of liability depends entirely upon the answer to the question, “Who breached the contract?” Who says the contract was not breached? Appellant does not; appellees do not; the trial court does not; and this court does not. Beyond the shadow of a doubt, the lease contract has been breached. Each of the parties contended that the lease was terminated by the other’s breach. This may be the only thing on which the parties agree, but they certainly agree upon that and there is not one word in their pleadings to indicate that they did not. What was wrong with the chancery court’s saying so?

Highland’s suit was one in unlawful detainer dressed in declaratory judgment clothing. It alleged that the lease had been breached by appellant and sought possession by mandatory injunction to appellant to remove its property from the leased premises. All the relief sought could have been obtained through an unlawful detainer action, without a mandatory injunction, an equitable remedy granted only when there is no adequate remedy at law and, actually, when there is no other remedy in equity.

'I’ext writers have spoken clearly on the subject of mandatory injunction. See 43 CJS 751, Injunctions § 8, where we find:

*** While it has been said that the granting of mandatory injunctions is governed by the same rules as the granting of preventative injunctions, mandatory injunctions are viewed as harsh remedial process, and are not favored by the courts.
Indeed, mandatory injunctions are rarely granted; and it has been noted that the courts are more reluctant to grant a mandatory injunction than a prohibitory one, that the requirements for the issuance of a mandatory injunction are stricter than for issuance of a prohibitory one, and that generally an injunction will not lie except in prohibitory form. . .
* * *< *
While mandatory injunctive relief may be appropriate in a clear case, and, indeed, will not issue except on the clearest equitable grounds, even if the right is clear, it does not follow that a mandatory injunction must be granted. In fact, such relief will be issued only in cases of extreme, great, or urgent necessity, or compelling circumstances, where the right invaded is material and substantial, and where adequate redress at law is not afforded, or where the injury is not compensable in damages.

And see, 42 Am. Jur. 2d 751, Injunctions § 20, where it is said:

*** q^e basic principles upon which the mandatory and prohibitory injunctions are granted do not differ materially, although the courts are perhaps more reluctant to interpose the mandatory injunction. It has been said that relief by mandatory injunction is not regarded with judicial favor and is used only with caution and in cases of great necessity. A mandatory injunction, it is said, should be granted only under compelling circumstances. When the court is thus asked to undo something that has been done, it must, for obvious reasons, act in a careful and conservative manner and grant the relief only in situations which so clearly call for it as to make its refusal work a real and serious hardship and injustice; otherwise, it may inflict on the defendant the very irreparable injury which it is alleged he has done or is about to do against the plaintiff.

The case should never have been in the equity court.

Then the court held that Highland was entitled to possession. All parties agree by their pleadings that Highland is entitled to possession. Highland brought the suit seeking a mandatory injunction as the instrument for obtaining possession by removing appellant’s property from the premises. Appellant alleges that there has been a breach of the covenant for quiet enjoyment by Highland. It also alleges that it has been constructively evicted by the actions of Highland. 3Jerhaps appellant has used two means of saying the same thing. In any event, retention of possession is inconsistent with the allegations of appellant’s pleadings and appellant does not allege that it is in possession. Appellant seeks only to be relieved of its obligations under the lease and to recover damages for breach of the covenant of quiet enjoyment and for constructive eviction.

The concepts of constructive eviction and breach of the covenant for quiet enjoyment are very closely related, if not just different names for the same concept. An excellent discussion of the relationship between the covenant of quiet enjoyment and constructive eviction can be found in Reste Realty Corp. v. Cooper, 53 NJ 444, 251 A. 2d 268 (1969). Portions of that discussion follow:

The great weight of authority throughout the country is to the effect that ordinarily a covenant of quiet enjoyment is implied in a lease [Citations omitted.] . . . Where there is such a covenant, whether express or implied, and it is breached substantially by the landlord, the courts have applied the doctrine of constructive eviction as a remedy for the tenant. Under this rule any act or omission of the landlord or of anyone who acts under authority or legal right from the landlord, or of someone having a superior title to that of the landlord, which renders the premises substantially unsuitable for the purpose for which they are leased, or which seriously interferes with the beneficial enjoyment of the premises, is a breach of the covenant of quiet enjoyment and constitutes a constructive eviction of the tenant.

Another discussion of the relationship between the two principles can be found in Petroleum Collections Inc. v. Swords, 48 Cal. App. 3d 841, 122 Cal. Rptr. 114 (1975). That court was faced with the appeal of the action by the lessor’s assignee against the lessee for rent due and owing. The trial court held for the lessee and the court of appeals held that, although the covenant of quiet enjoyment had been breached by the lessor’s removing a large advertising sign from the premises without adequate replacement, the lessee was not relieved of the obligation to pay rent because he and his sublessee remained in possession of the premises after removal of the sign. From the opinion:

It has long been the rule that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment. . .
If, on the other hand, the tenant elects to surrender possession of the premises, a constructive eviction occurs at that time and, as in the case of an actual eviction, the tenant is relieved of his obligation to pay any rent which accrues thereafter ... It is this doctrine, known as the doctrine of constructive eviction, “ . . . which expanded the traditional ‘covenant of quiet enjoyment’ from simply a guarantee of the tenant’s possession of the premises to a protection of his ‘beneficial enjoyment’ of the premises ...”
Stated in another manner, the covenant of quiet enjoyment is not broken until there has been an actual or constructive eviction; an actual eviction takes place when the tenant is physically dispossessed of the property; a constructive eviction occurs when the act of molestation merely affects the beneficial use of the property, causing the tenant to vacate the premises. If the tenant is evicted or if he surrenders possession of the premises within a reasonable time after the act of molestation has occurred, he is relieved of his obligation to pay rent accruing as of the date he surrendered; he also may sue for his damages or plead damages by way of offset in an action brought against him by the ... landlord to recover any unpaid rent that accrued prior to the surrender of the premises. [Citations omitted.] If, in the case of an interference with the tenant's benejicial enjoyment of the premises, the tenant does not surrender the premises within a reasonable time after the date of the interference, he is deemed to have waived his right to abandon; what constitutes a reasonable time is a question of fact to be determined by the trier oj fact after considering all of the circumstances. [Citations omitted.] [Emphasis mine.]

Arkansas cases on the subject are sparse, but in harmony with the majority view expressed above. In Dupree v. Worthen Bank & Trust Co., 260 Ark. 673, 543 S.W. 2d 465, we recognized that, in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, citing Petroleum Collections, Inc. v. Swords, supra. In Smiley v. Thomas, 220 Ark. 116, 246 S.W. 2d 419, the court cited an earlier case which apparently recognized the covenant for the quiet enjoyment of land. Although the Smiley case was concerned with the alleged breach of the covenant of warranty of title, the opinion contains the following quote:

*** This court held in Gibbons v. Moore, 98 Ark. 501, 136 S.W. 937, (Headnote 3): “A covenant for quiet enjoyment of land is a covenant which runs with the land, for breaches whereof the grantee, his heirs or assigns, may sue as if it were expressly inserted in the conveyance.” (Headnote 4) “Same — When Broken. — A covenant for quiet enjoyment *** was broken where a title paramount to that of the grantee’s was held valid in a suit against them to which their grantor was a party,” . .

Although not explicit in the Gibbons opinions, it appears that the court felt that eviction from the premises was a necessary element of a breach of the covenant for quiet enjoyment, as evidenced by the following language: “Appellee having been brought into a suit against appellants on their motion as a voucher, in which a title paramount to theirs received from said appellee was held valid and they were evicted by judgment therein from said lands, the breach of the covenant of quiet enjoyment and warranty created by the statute was established.”

It is well established that there can be no constructive eviction if the tenant continues in possession. Black's Law Dictionary, De Luxe 4th Edition, contains the following definition of constructive eviction:

Any disturbance of the tenant’s possession by the landlord whereby the premises are rendered unfit or unsuitable for occupancy in whole or in substantial part for the purposes for which they were leased amounts to a constructive eviction, if the tenant so elects and surrenders his possession. [Emphasis mine.] [Citing Murray v. Merchants’ Southwest Transfer & Storage Co., 98 Okla. 270 255 P. 547, 549.]

From 52 CJS 289, Landlord & Tenant § 445, there is this:

An eviction may be constructive in character, and a constructive eviction is some act of a permanent character which, although not amounting to an actual eviction, is done by the landlord or someone under his authority with the intention and effect of depriving the tenant of the beneficial enjoyment of the demised premises, or some part thereof, or materially obstructing or interfering with such enjoyment, and to which the tenant yields by abandoning possession within a reasonable time. It involves a surrender of possession by the tenant on justifiable grounds rather than a deprivation of actual occupancy. A claim of constructive eviction is only an election to terminate a lease because of a breach thereof. [Emphasis mine.]

Proceeding to 52 CJS 293, Landlord & Tenant § 447 (b), I read:

in order to constitute an eviction by a landlord, the tenant must cease to retain possession of the premises, and either he must be dispossessed or he must abandon the premises because of the landlord’s acts or omissions; there is no eviction where he continues in possession . . . [Emphasis mine.]

And further, at 52 CJS 306, Landlord & Tenant § 457, I find:

Constructive eviction of a tenant by his landlord requires that the tenant abandon, vacate or surrender possession of the premises. Accordingly, it is held that there is no constructive eviction where the tenant continues in possession, however much he may be distrubed in the beneficial enjoyment of the premises; nor is there a constructive eviction where the tenant is conducting litigation and seeking to remain in possession of the premises. [Emphasis mine.]

And from 49 Am. Jur. 2d 318, Landlord & Tenant § 303, the following:

Abandonment of premises by the tenant within a reasonable time after the wrongful act of the landlord is essential to enable the tenant to claim a constructive eviction based upon that wrongful act, or to defend against liability for rent, on account of such act. However much the tenant may be disturbed in the beneficial enjoyment of the premises by the landlord's wrongful act, there is no constructive eviction if he continues in possession of the whole of the premises. Possession must be given up by the tenant in consequence of the landlord’s act, and those acts must be such as to justify the tenant in doing so. [Emphasis mine.]

It seems quite obvious from a reading of these passages that retention of the possession of leased premises is wholly inconsistent with a claim of constructive eviction. In Lori, Limited v. Wolfe, 85 Cal. App. 2d 54, 192 P. 2d 112 (1948), the lessor sought to have a lease reformed in order to prevent assignment or subletting. The lessee filed a cross-complaint, praying for declaratory judgment, an injunction and damages.. The plaintiff appealed from an unfavorable judgment. The trial court found that the waiver of a right the appellant had under the lease relating to the sale of intoxicating beverages on the premises constituted a construetive eviction. The court of appeals disagreed. From the opinion:

*** In order that there be a constructive eviction it is essential that the tenant should vacate the property. There is no constructive eviction if the tenant continues in possession of the premises however much he may be disturbed in the beneficial enjoyment. Veysey v. Moriyama, 184 Cal. 802, 805, 195 P. 662, 20 ALR 1363; Tregoning v. Reynolds, 136 Cal. App. 154, 157, 28 P. 2d 79. [Emphasis mine.]

In Steinberg v. Medical Equipment Rental Services, Inc., 505 S.W. 2d 692 (Tex. Civ. App. 1974), that court set out the four essential elements of constructive eviction. They are:

(1) an intention on the part of the landlord that the tenant shall no longer enjoy the premises, which intention may be inferred from the circumstances; (2) a material act by the landlord or those acting for him or with his permission that substantially interferes with the use and enjoyment of the premises for the purpose for which they are let; (3) the act must permanently deprive the tenant of the use and enjoyment of the premises; (4) the tenant must abandon the premises within a reasonable time after the commission of the act. [Emphasis mine.]

And finally from Reste Realty Corp. v. Cooper, supra, in which the relationship between the covenant for quiet enjoyment and constructive eviction was first pointed out herein, the court said:

*** The general rule is, of course, that a tenant’s right to claim a constructive eviction will be lost if he does not vacate the premises within a reasonable time after the right comes into existence ... 1 American Law of Property, § 3.51, p. 282. What constitutes a reasonable time depends upon the circumstances of each case. [Emphasis mine.]

Although dealing with the concept of warranty of title under Texas law in Elliott v. Elliott, 252 Ark. 966, 482 S.W. 2d 123, we also dealt with constructive eviction, saying:

*** We have concluded that they correctly contend that before there can be any recovery for breach of warranty [of title] under Texas law [the opinion also held that the law was the same in Arkansas, citing Lammers v. American Southern Trust Co., 172 Ark. 1013, 291 S.W. 437], there must have been an eviction, a surrender of possession to the one asserting a paramount title or a purchase of paramount title asserted, but that one who remains in possession, and successfully defends his title is not evicted, actually or constructively.

For other cases supporting the proposition that a tenant must abandon or vacate the leased premises before he can claim constructive eviction, see generally: Annot., 91 ALR 2d 638; Indiana State Highway Com’n. v. Pappas, 349 N.E. 2d 808 (Ind. App. 1976); Lippman v. Harrell, 39 Ill. App. 3d 308, 349 N.E. 2d 511 (1976); Thompson v. Shoemaker, 7 N.C. App. 687, 173 S.E. 2d 627 (1970); Gillette v. Anderson, 4 Ill. App. 3d 838, 282 N.E. 2d 149 (1972); Meerbaum v. Crepes D’Asie, Inc., 85 Misc. 2d 345, 378 N.Y.S. 2d 874 (1975); Brine v. Bergstrom, 4 Wash. App. 288, 480 P. 2d 783 (1971); McNabb v. Taylor Oil Field Rental Co., 428 S.W 2d 714 (Tex. Civ. App. 1968); Sewell v. Hukill, 138 Mont. 242, 356 P. 2d 39 (1960); Richards v. Dodge, 150 So. 2d 477 (Fla. App. 1963); Venters v. Reynolds, 354 S.W. 2d 521 (Ky. 1961); McNally v. Moser, 210 Md. 127, 122 A. 2d 555 (1956); Maki v. Nikula, 224 Ore. 180, 355 P. 2d 770 (1960); Candell v. Western Federal Savings & Loan Association of Denver, 156 Col. 552, 400 P. 2d 909 (1965); Yaffe v. American Fixture, Inc., 345 S.W. 2d 195 (Mo. 1961); E. B. Jones Motor Co. v. Niedringhaus, 323 S.W. 2d 31 (Mo. App. 1959); Baker v. Simonds, 79 Nev. 434, 386 P. 2d 86 (1963); Weiss v. I. Zapinsky, Inc., 62 N.J. Super. 351, 167 A. 2d 802 (1961).

So, from either party’s view, Highland was entitled to possession. Why should the court not have said so? What issue remained as to possession?

A partial summary judgment specifying the facts not in issue is permissible when there is no material justiciable issue as to those particular facts on which the judgment is rendered or order made. Ark. Stat. Ann. § 29-211 (d) (Repl. 1962). Actually we have held that it is error for the trial court to fail to specify facts that appear to be without controvery. Young v. Dodson, 239 Ark. 143, 388 S.W. 2d 94. The summary judgment was partial and covered only those matters as to which there can be no issue, i.e., that the lease had been breached and Highland is entitled to possession. The remaining issues, liability and damages, were transferred to law. What error did the trial court commit? I submit, none. What substantial right of any parts has been affected? Again, I say none. In substance, if not in form, the chancellor did what we have said he should do.

I would affirm the decree.


source: Caselaw Access Project

author:
PER CURIAM. Carleton Harris, Chief Justice,
      Conley Byrd, Justice, Darrell Hickman, Justice,

license: Public Domain

text:
    In the Matter of Wayne R. WILLIAMS
    79-145
    592 S.W. 2d 438
    April 9, 1979
   PER CURIAM.

It appears to the court that:

This court accepted the surrender of the license of Wayne R. Williams to practice law in the State of Arkansas upon his petition and the recommendation of the Supreme Court Committee on Professional Conduct, upon conditions set out in a per curiam order entered July 19, 1976, viz:

Accordingly, we deem it appropriate to accept surrender of petitioner’s license for a two-year period, but this does not mean petitioner will be automatically reinstated at the end of this period. Petitioner will only be readmitted upon a satisfactory showing to the Board of Law Examiners that his character and integrity are such that he deserves readmittance. Another condition of the suspension is that petitioner refrain from assisting any other attorney engaged in the practice of law and from accepting employment by any other attorney in any capacity whatever during the term of his suspension. The burden of proof shall rest upon petitioner in making those showings to the Board of Law Examiners.

The State Board of Law Examiners has certified that it has conducted a hearing as a result of which it found:

(a) that Wayne R. Williams has satisfactorily shown that his character and integrity are such that he deserves readmission; and,
(b) that Wayne R. Williams has refrained from assisting any attorney engaged in the practice of law and has not accepted employment from any attorney in any capacity during the term of his suspension.

It is therefore ordered that Wayne R. Williams be readmitted to the practice of law and that his license to do so be reissued.

Harris, C.J., and Byrd and Hickman, JJ., dissent.

Carleton Harris, Chief Justice,

dissenting. The Committee order entered when Mr. Williams surrendered his license provided that petitioner will not be automatically reinstated at the end of the two year period, but “will only be readmitted upon a satisfactory showing to the Board of Law Examiners that his character and integrity are such that he deserves readmittance”.

Since this court has the final responsibility, I likewise feel that this language is properly interpreted to the effect that the showing must also be satisfactory to the members of this court.

While I have every confidence in the members of the Committee, and normally accept their findings, there are still, to me, some matters wherein the investigation failed to establish to my satisfaction that Williams should be reinstated at this time.

Conley Byrd, Justice,

dissenting. For the reasons hereinafter stated I cannot accept the recommendation of the State Board of Law Examiners that Wayne R. Williams should be reinstated as a member of the Bar of Arkansas.

In Williams’ 1976 petition for the surrender of his license [the petition is set out in full injustice Hickman’s dissent] we see that, through his lust for filthy lucre, Williams in 1973 cheated the man that he had been employed to help. When his infidelity was shown to public light, Williams, for no apparent purpose other than having someone to share his shame, falsely swore that he was cheating his benefactor to bribe the deputy prosecuting attorney. Based upon Williams’ statements of his conduct, on July 19, 1976, we entered the following order, to-wit:

“Accordingly we deem it appropriate to accept surrender of petitioner’s license for a two-year period, but this does not mean petitioner will be automatically reinstated at the end of this period. Petitioner will only be readmitted upon a satisfactory showing to the Board of Law Examiners that his character and integrity are such that he deserves readmittance. . . . The burden of proof shall rest upon petitioner in making those showings to the Board of Law Examiners. ”

The terms “character” and “integrity” both have well defined and readily understandable meanings. Black’s Law Dictionary, 3rd ed., defines “character” as:

“That moral predisposition or habit, or aggregate of ethical qualities, which is believed to attach to a person, on the strength of common opinion and report concerning him. A person’s fixed disposition or tendency, as evidenced to others by his habits of life, through the manifestation of which his general reputation for the possession of a character, good or otherwise, is obtained.
“ ‘Character’ is what a man is, and ‘reputation’ is what he is supposed to be. Hopkins v. Tate, 99 A. 210, 211, 255 Pa. 56; State v. Picket, 202 Iowa 1321, 210 N.W. 782, 783. ‘Character’ depends on attributes possessed, and ‘reputation’ on attributes which others believe one to possess. Bills v. State, 187 Ind. 721, 119 N.C. 465. The former signifies reality and the latter what is accepted to be reality at present. State v. Leabo, 120 Or. 160, 249 P. 363.”

The same authority defines “integrity” as:

“As occasionally used in statutes prescribing the qualifications of public officers, trustees, etc., this term means soundness of moral principle and character, as shown by one person dealing with others in the making and performance of contracts, and fidelity and honesty in the discharge of trusts; it is synonymous with ‘probity,’ ‘honesty,’ and ‘uprightness.’ ...”

Now, obviously, Williams’ moral predisposition and habits as shown by his own petition demonstrate that he lacks that moral principle of fidelity and honesty in the discharge of trusts that would qualify under the definition of “integrity” as shown above. How did the State Board of Law Examiners arrive at a different conclusion? The record, page 12, shows that the State Board of Law Examiners chose to consider none of Williams’ conduct prior to July 19, 1976, the date we accepted the surrender of his license and considered only his conduct subsequent to that date for the purpose of determining his “character and integrity.” Apparently, the majority, in accepting the recommendation of the State Board of Law Examiners to reinstate Williams, are condoning that action on the part of the Board. Now obviously, the majority cannot explain to me why the State Board of Law Examiners should place such a limitation on their inquiry into the character and integrity of Williams, but I submit that the majority owe an explanation to the citizens of this State why the State Board of Law Examiners can take such a short circuited view of Williams’ character and integrity.

For the reasons herein stated, I respectfully dissent.

Darrell Hickman, Justice,

dissenting. I respect the majority’s position in standing behind its per curiam decision which in effect suspended Wayne R. Williams’ right to practice law for two years. This was done upon the recommendation of the Supreme Court Committee on Professional Conduct that Williams be allowed to surrender his license for two years, and that, after such time and upon a satisfactory showing that his character and integrity deserved readmittance, he be readmitted.

My dissent is that the majority was wrong in the first place.

Williams’ misconduct can best be described in his own words. His original petition is set forth in full.

That there is presently pending before the Supreme Court Committee on Professional Conduct a complaint and investigation against me concerning my professional conduct including the following allegations, to-wit:
(a) That Frank S. Wheat was arrested on or about August 30, 1973, by Clark County and Arkadelphia authorities on criminal charges including narcotics violations. I was employed by Frank S. Wheat and his father, B. F. Wheat, Jr. to defend Frank S. Wheat. I quoted a fee of Five Hundred Dollars ($500.00) which was paid in two installments of Two Hundred and Fifty Dollars ($250.00) each.
(b) Thereafter on September 5, 1973, I falsely stated to B. F. Wheat, Jr. that an additional sum of Five Thousand Dollars ($5,000.00) would have to be paid to get probation for his son.
(c) That at the time I informed B. F. Wheat, Jr. he would have to pay Five Thousand Dollars ($5,000.00) in addition to the Five Hundred Dollars ($500.00) previously paid, I knew that arrangements had already been made (on September 3, 1973) for Frank S. Wheat to be recommended for a probationary sentence contingent upon both his and my assistance (working as a go between) with certain narcotics undercover agents. We fulfilled this role to the satisfaction of authorities between September 3, 1973 and September 13, 1973, and on the latter date I was advised that the probationary sentence would be recommended and that sentencing would take place on September 14, 1973, in Miller County. In view of the circumstances, this additional Five Thousand Dollars ($5,000.00) was clearly an excessive fee.
(d) That unknown to me and on September 6, 1973, B. F. Wheat, Jr. contacted another Arkadelphia attorney and discussed the Five Thousand Dollars ($5,-000.00) I had stated would have to be paid. Following this conference and discussions with other persons, B. F. Wheat, Jr. agreed to wear an electronic listening device upon his person and to return to my office on September lO, 1973, to engage me in a conversation regarding the nature of the additional Five Thousand Dollars ($5,-000.00) payment.
(e) That in the course of my discussion of September 10, 1973 with B. F. Wheat, Jr., I stated to B. F. Wheat, Jr. that this Five Thousand Dollars ($5,-000.00) was not a legal fee for me and I falsely implied to B. F. Wheat, Jr. that the Five Thousand Dollars ($5,-000.00) would be used by me to influence unnamed and undescribed third persons in order to secure favorable treatment for his son. B. F. Wheat, Jr. gave me One Thousand Dollars ($1,000.00) of the Five Thousand Dollars ($5,000.00) in my office on September 10, 1973.
(f) That on September 14, 1973, Frank S. Wheat received a probationary sentence in the Miller County Circuit Court. Following the sentencing, B. F. Wheat, Jr. gave me Four Thousand Dollars ($4,000.00). Following the delivery of the Four Thousand Dollars ($4,-000.00) to me, I was arrested by police officers with the City of Texarkana and was subsequently charged with bribery and related crimes.
(g) That on September 14, 1973 following my arrest, I gave a statement to the law enforcement authorities in which I did not make any admissions of bribery and did not implicate anybody else, and in which I claimed any money I received from B. F. Wheat, Jr. was solely to be my fee.
(h) That on September 17, 1973, in the presence of my attorney, I gave a free and voluntary oral statement to Texarkana police officers in which I stated this Five Thousand Dollars ($5,000.00) was the sum of money Deputy Prosecuting Attorney Travis Mathis had agreed to accept in order for him to recommend a probationary sentence for Frank S. Wheat; and that the One Thousand ($1,000.00) given to me by B. F. Wheat, Jr. on September 10, 1973 had been turned over to Travis Mathis by me on the same day; and that the FourThousand Dollars ($4,000.00) I received from Mr. Wheat on September 14, 1973, was also to be turned over by me to Travis Mathis. All of the information in this statement implicating Mr. Mathis was a falsehood.
(i) That on September 19, 1973, in the presence of my attorney, I gave another free and voluntary statement to law enforcement authorities in which I reiterated much of what I had said on September 17, 1973 and which was false. In that statement, I declared that the Honorable John Goodson, Circuit Judge, was in no way involved in any bribery scheme.
(j) That my actions as related above resulted in Attorney Travis Mathis being indicted on November 7, 1973 by Clark County Grand Jury on a bribery charge, accompanied by newspaper publicity giving details of my allegations against Mr. Mathis.
(k) That I did not publically acknowledge the innocence of Mr. Mathis of the bribery charge until my letter to him dated March 18, 1974, in which I related he was never involved in any bribe concerning the Frank S. Wheat case.
(1) That on the 27th and 28th days of June, 1974, I was tried on a bribery charge in the Clark County Circuit Court during which 1 testified that the Five Thousand Dollars ($5,000.00) from B. F. Wheat, Jr. was solely to be my fee, which fee was in addition to the Five Hundred Dollars ($500.00) previously paid to me, and no part of the money was to be used as a bribe. On June 28, 1974, the petit jury of Clark County was discharged by the Trial Judge before a verdict was reached, but while the jury stood eleven to one for acquittal. The case against me was later dismissed, the trial court holding a new trial would result in double jeopardy.
(m) That following the dismissal of the bribery case against me, the Prosecuting Attorney dismissed the bribery charge against Travis Mathis by court order dated September 27, 1974.
II.
I hereby admit that the allegations against me contained in this petition are substantially true and correct. I know that if charges were brought against me based on the allegations herein, I could not successfully defend myself against them. In order to avoid further proceedings in this matter, I have decided to resign and surrender my license to practice as an attorney in the State of Arkansas for a period of two (2) years in the hope that the Court will consider such suspension an adequate punishment for my actions as aforesaid. This resignation is freely and voluntarily given. I have not been coerced, nor intimidated into surrendering my license, nor have I been made any promise of benefit nor given any inducement whatever to do so, and I am fully aware of the implications of this resignation.
III.
I therefore petition this Court to accept my surrender of my Attorney’s License and to remove me from the list of attorneys authorized to practice law in the State of Arkansas for a period of two (2) years and that following the said period of two (2) years that I then be considered eligible for reinstatement as a licensed attorney in Arkansas subject to such conditions as may be set by this Court concerning any pertinent considerations for readmission including, but not limited to, establishment of my then good character and my good conduct during the suspension period.
IV.
I make this request without any reservations and hope this matter will be handled without any undue publicity. I herewith tender my license certificate to this Court.
/s/ Wayne R. Williams
Wayne R. Williams

Williams’ misconduct, then, was that he had committed several felonies, that he had led a layman to believe that the legal system was corrupt and that he had caused a fellow lawyer to be indicted by a grand jury. It would be difficult for me to think of misconduct of a more serious nature by any lawyer. While Williams had only been admitted to practice for a few months, he was of mature age; for his misconduct there can be no excuse.

The right to practice law is a privilege granted according to the laws of this State. While Williams has not been convicted of a felony, he has admitted that he committed several felonies. I believe the original judgment should have been that proceedings for disbarment should have been initiated — not to accept a voluntary surrender of the license.

Every week we review cases where individuals have been sentenced to the Arkansas penitentiary for less serious offenses. It is difficult for me to justify the majority’s action in comparison.

While our profession is not held in high regard by all, it is an honorable one, composed of many honorable people who support and defend the profession against corruption and unfounded rumors of corruption. Our system of government depends upon such people, and the integrity of such people. Their ranks must be limited to those deserving such a responsibility.

I find no evidence in the record regarding why Wayne R. Williams did what he did; perhaps such actions are self-explanatory. 1 only find in the record that he has not practiced law for two years, as he was prohibited from doing by law; that some local judicial officials and lawyers feel he deserves another chance. Certainly, Williams should not be unduly punished for his misconduct, but I am of the opinion that he has forfeited his right to practice law, and he has not demonstrated by evidence that he is of good moral character deserving readmittance to the bar.

Therefore, I respectfully dissent from the majority opinion.


author: John A. Fogleman, Justice.

text:
    Shirley CLARK, Widow v. PEABODY TESTING SERVICE
    78-288
    579 S.W. 2d 360
    Opinion delivered April 16, 1979
    (Division II)

      Joseph W. Swaty, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   John A. Fogleman, Justice.

This claim arises from the death of William Robert Clark, aged 38, on the job site where he was employed by appellee, Peabody Testing Company. The circuit court affirmed the Workmen’s Compensation Commission’s denial of the claim. Appellant asserts four points for reversal. We find no reversible error.

Point No. 1

THE CIRCUIT COURT ERRED IN AFFIRMING THE COMMISSION’S OPINION BECAUSE SUCH OPINION REFLECTS THE FULL COMMISSION GAVE WEIGHT TO THE ADMINISTRATIVE LAW JUDGE’S OPINION.

Appellant’s argument on this point is based upon these elements: The commission stated, in its opinion, that it agreed with the decision of the administrative law judge; it followed the statement of the case made by this judge in his opinion; it quoted verbatim a hypothetical question (which appellant says was improper) propounded to a physician and the physician’s answer (which appellant calls inconsistent); it used the same reasoning used by the administrative law judge; the commission cited, but did not follow, Harper v. Henry J. Kaiser Construction Co., 233 Ark. 398, 344 S.W. 2d 856.

Certainly the commission’s agreement with the referee’s findings based only upon the evidence presented to the referee is not to be taken to mean that the commission accorded any weight to the referee’s findings. Such cases as Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S.W. 2d 166, cited by appellant, have no bearing, because there is no indication whatever that the commission here only determined that there was substantial evidence to support the administrative law judge’s findings. Furthermore, we give the law judge’s findings no weight whatever. Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S.W. 2d 43. See also, Allied Telephone Co. v. Rhodes, 248 Ark. 677, 454 S.W. 2d 93.

Point No. 2

THE CIRCUIT COURT ERRED IN FAILING TO FIND THERE WAS SUBSTANTIAL EVIDENCE, BOTH LAY AND MEDICAL, ON WHICH TO BASE ITS AFFIRMANCE.

According to appellant, her main point is that the circuit court made no specific finding that the evidence upon which the commission based its decision was substantial. Apparently appellant feels that it was reversible error for the circuit court to affirm the judgment without setting out the specific evidence it found to be substantial. The court’s order stated that upon review of the entire file the order of the commission should be affirmed. There is no requirement in the Workers’ Compensation Law that the circuit court, on review of the commission’s decisions, make detailed findings of fact or state specific conclusions of law. In this case, the only question that could have been decided by the circuit court was whether the commission’s action was supported by substantial evidence, since there was no suggestion that the commission acted without, or in excess of, its powers, or that the award was procured by fraud. See Ark. Stat. Ann. § 81-1325 (b) (Repl. 1976). The question is one of law. Cummings v. United Motor Exchange, 236 Ark. 735, 368 S.W. 2d 82; Mohawk Rubber Co. v. Buford, 259 Ark. 614, 535 S.W. 2d 819. The findings of fact of the commission are conclusive and binding on the courts in the absence of fraud, and are not for de novo determination by the courts. Ark. Stat. Ann. § 81-1325 (b); Oak Law Farms v. Payne, 251 Ark. 674, 474 S.W. 2d 408; Lane Poultry Farms v. Wagoner, supra. The order of the circuit court is clearly indicative of a finding that there was substantial evidence to support the denial of compensation. In any event, we review the decision of the commission without regard to the action of the trial court. Miller v. Everett, 252 Ark. 824, 481 S.W. 2d 335; Allied Telephone Co. v. Rhodes, supra. See also, Lane Poultry Farms v. Wagoner, supra. Therefore, the failure of the circuit court to specify the evidence it found to be substantial, in support of the commission’s action, is of no consequence.

Point No. 3

THE CIRCUIT COURT ERRED IN FAILING TO DETERMINE, AS A MATTER OF LAW, THAT THE COMMISSION RESOLVED ALL DOUBTS IN FAVOR OF THE CLAIMANT.

In her argument of this point, appellant argues that before either the circuit court or this court can affirm the commission, there must be a finding that the commission has viewed the evidence liberally in favor of the claimant. In this, appellant is mistaken, and as a matter of fact, has correctly predicted that we will say that there is no inconsistency in these statements: (1) that the commission must resolve all doubts in favor of the claimant and (2) that we must affirm the commission’s decision if it is supported by substantial evidence. The resolution of doubts and factual issues favorably to the claimant is a function of the commission, not of the courts, which must view and interpret the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the commission and give the testimony its strongest probative force in favor of the action of the commission, whether it favored the claimant or the employer. Mass Merchandisers, Inc. v. Harp, 259 Ark. 830, 536 S.W. 2d 729; Turner v. Lambert Construction Co., 258 Ark. 333, 524 S.W. 2d 465; Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W. 2d 868; Home Insurance Co. v. Logan, 255 Ark. 1036, 505 S.W. 2d 25; Warwick Electronics, Inc. v. Devazier, 253 Ark. 1100, 490 S.W. 2d 792. On appeal, we resolve all doubts in favor of the commission’s findings. Bale Chevrolet Co. v. Armstrong, 241 Ark. 705, 409 S.W. 2d 328. We must affirm if we find any substantial evidence to support the commission’s ruling. Dura Craft Boats v. Daugherty, 253 Ark. 340, 485 S.W. 2d 739; Turner v. Lambert Construction Co., supra; Potlatch Forests, Inc. v. Smith, supra. So, the extent of our inquiry is limited to the determination whether there is any substantial evidence to support the commission’s findings. Sneed v. Colson Corp., 254 Ark. 1048, 497 S.W. 2d 673; Superior Improvement Co. v. Hignight, 254 Ark. 328, 493 S.W. 2d 424; Dura Craft Boats, Inc. v. Daugherty, supra. We will affirm the decision of the commission on the question of causation, unless there is no substantial evidence to support it. Turner v. Lambert Construction Co., supra. Even if the preponderance of the evidence would indicate a different result, we will affirm the commission if reasonable minds could reach the conclusion reached by the commission. Superior Improvement Co. v. Hignight, supra. Or conversely, we will not reverse the commission’s finding that the claimant failed to meet his burden of proof on causation unless fair-minded men could not have arrived at a finding adverse to the claimant. Turner v. Lambert Construction Co., supra. The circuit courts must take the same view of the evidence we do.

Point No. 4

THE CIRCUIT COURT ERRED IN AFFIRMING THE COMMISSION BECAUSE THE COMMISSION FAILED TO RESOLVE DOUBTFUL MEDICAL TESTIMONY IN FAVOR OF APPELLANT.

There is no distinction between medical testimony and other evidence insofar as the resolution of doubts is concerned in workers’ compensation proceedings. In arguing this point, appellant relies upon Dougan v. Booker, 241 Ark. 224, 407 S.W. 2d 369, where this court reversed the action of the circuit court and of the commission, without regard to the substantial evidence rule. While this 4-2 decision (one justice not participating) would seem to lend some support to appellant’s argument, there are some important distinctions. The claimant there had suffered a previous heart attack, for which he had been treated by a physician who advised him not to overtax himself and to stop and rest if he had any pain or fatigue. The undisputed evidence in Dougan was that the employee collapsed on the job as a result of unusual exertion and strain. The only evidence of a preexisting condition in this case is testimony relating to chest pains and shortness of breath, which may or may not have been symptoms of cardiac disease. There is testimony in this case from which it would not be unreasonable to infer that there was no unusual strain or exertion in the work being done by Clark. The two dissenting justices in Dougan pointed out that the court should affirm if there was any substantial evidence to support the verdict. They felt that the expert opinion testimony of a physician constituted substantial evidence to support the commission’s denial of the death claim in that case. In view of the many cases decided since that decision on the extent of appellate review, Dougan v. Booker cannot be considered as authoritative on the facts in this case, insofar as the substantial evidence rule is concerned.

SUBSTANTIAL EVIDENCE

Appellant does not state any point for reversal based upon her contention that there was no substantial evidence to support the commission’s denial of her claim. Since that argument, however, is woven into her argument on every point stated, we must consider it. We do find substantial evidence, when the evidence is viewed in the light in which we must view it. We must also keep in mind the requirement that the dependent claimant show by a preponderance of the evidence that the death of the employee arose out of and in the course of his employment. Asphalt Materials Co. v. Coleman, 243 Ark. 646, 420 S.W. 2d 921; Wilson v. United Auto Workers International Union, 246 Ark. 1158, 441 S.W. 2d 475; Brooks v. Wage, 242 Ark. 486, 414 S.W. 2d 100. See also, Voss v. Ward's Pulpwood Yard, 248 Ark. 465, 452 S.W. 2d 629.

The claimant, Shirley Clark, is the widow of William Robert Clark, who was 38 years of age when he died on July 19, 1977. He had been employed as a driller for Peabody Testing Service since January, 1977. Clark had lived continuously with Mary Collins, daughter of Olene Bates, in Sheridan since 1974. Mrs. Bates also lived in Sheridan. Mrs. Bates had a close relationship with Clark after she first met him in October, 1974. She testified that, during all the time she knew him, he never went to a doctor in Sheridan or Little Rock or any place she knew about, that he did not take medicine, and that she did not know of his being hospitalized. He smoked but r' d not use alcohol at all. He fished, hunted, wrestled with his 16-year-old son, played ball with his boys and played with his dogs. He was a real active individual. Some of these activities were rather strenuous. Mrs. Bates said that he never complained of excessive fatigue, chest pains, shortness of breath or dizziness. She never heard him complain about anything. She said he had no complaints after any of the activities in which he engaged, and that she was around him enough to have been aware of any such complaints if he had made them. She had never heard Clark say anything about his having any history of high blood pressure. She said she did not know of, or ever discuss with him, any history of diabetes. He was over six feet tall, was slender and not overweight. He took regular exercise. Mary Collins testified that Clark had no problem with his heart while he lived with her.

David Thompson, general manager for appellee, testified that Clark was accustomed to fairly strenuous work. Just prior to the commencement of the job on which Clark was working when he died, he had worked on a job at Ozark during May and June. He worked ten hours a day, five days per week. He called in sick on a Thursday after that job was complete and was given Friday off, after which he took a one week vacation. He was off the job for a total of ten days. According to Horace Helms, Clark’s helper in the two-man drilling crew, the work at Ozark was strenuous and the weather was hot. Helms never heard Clark complain of any illness while they worked at Ozark. Clark had never complained of shortness of breath, chest pains, excessive fatigue, or anything of that sort.

When Clark returned from his vacation, he and Helms commenced a job at Greenwood, which, according to Helms, should have been less strenuous work than that done at Ozark. The first day they just drove from Little Rock to Greenwood, located the site on which they were to drill and went to a motel. Helms said that Clark complained of chest pains that night and said that he was having a hard time breathing. Clark did not complain of any difficulty in breathing before he went to work, but Helms said that when they started drilling, Clark started talking about chest pains and having difficulty breathing. Clark and Helms had difficulty in keeping their rig drilling. Helms said this made Clark angry, but he characterized him as being rather calm. Helms said that he reckoned it was a pretty normal day, but that they had been working in hot weather all summer.

Both Clark and Helms called appellee’s office that day. Sharon Allen, who worked in the office of the First Baptist Church of Greenwood, said that Clark and Helms were drilling about 50 yards across a courtyard from her office. She said that they came in the office to call their boss after the drilling rig had stopped. She described the day as humid. She recalled that the temperature was Í01 or 102 degrees. She said Clark and Helms were in the office about 15 or 20 minutes before Clark died and that he looked real dark — his face was gray looking. He made no complaint about chest pains and the only thing Miss Allen noticed about him was the unusual facial color. According to her, Clark went back to the rig about five minutes before Helms did, and that just a few minutes later, she saw Helms pass the window, carrying Clark. Helms brought him inside the building and laid him on the floor. Ms. Allen said that Clark didn’t seem “to have any life” at that time.

Helms said that Clark had sat under a tree and said that he was going to rest. Helms stated that he then went to use a telephone, and when he returned, Clark was lying on the grass and beginning to turn blue.

Clark was taken by ambulance to the emergency room at Saint Edward Mercy Medical Center in Fort Smith. Resuscitation efforts in the ambulance and in the emergency room failed.

According to Dr. Stephen C. Graves, the emergency room physician, Clark arrived without heart beat or respirations and his pupils were fixed and dilated. A hospital report showed that Dr. Graves attributed death to cardiac arrest. The death certificate executed by the coroner showed that Clark died of “apparent natural causes.” No autopsy was performed. Appellant filed a letter report of Dr. Graves in which he stated that he did not know whether Clark had any preexisting cardiovascular or cerebrovascular disease, but expressed the opinion that strenuous physical labor on a hot day could result in, or could have contributed to, his death.

Dr. Graves also testified by deposition. He stated that he had been unable to determine the cause of Clark’s death in the emergency room and had notified the coroner. He had talked with Helms, who had come to the emergency room in the ambulance, and Helms had said that Clark had complained of chest pains on the day of his death and the preceding night. He was unable to give an affirmative or negative answer to the question whether high temperature or hard work, sweating and little rest can precipitate certain illnesses and cause death. He found nothing in the transcript of testimony in the case to indicate that Clark was engaged in extra hard work that might have caused him to have those “precipitating factors.” Although he felt that heat would have an effect, if accompanied by sweating and loss of a lot of body fluid, he said that Helms did not mention this. In his review of the transcript, the only suggestion he found that Clark was not in good health was Helms’ statement relating to chest pains and shortness of breath, which Graves said could be due to intrinsic cardiac disease or coronary artery disease, but might not. He said he had no way of knowing whether Clark was predisposed to heart attack and other cardiac ailment, since he had not had any information on the considerations for determining predispositions, i.e., history of parental heart disease, high blood pressure, smoking, excessive caffeine, and being overweight, except for knowing that Clark was not overweight. The only history that Graves found that might have been a factor was the history of pain the night before Clark’s death. A hypothetical question of the doctor on cross-examination, and his answer, were:

Q. Doctor, I believe one of the witnesses at the hearing, a Mrs. Olene Bates, testified that Mr. Clark had no history of heart disease; that he was accustomed to work; that he regularly exercised; that he was not taking any medication; that he did smoke; that he had no history of diabetes or high blood pressure, or any other chronic illness of that type. If you assumed those facts, and based on that information which Mrs. Bates testified, would you feel that Mr. Clark would be predisposed to any type of heart attack?
A. No. Given that information I would say that he was probably not predisposed.

On redirect examination, Dr. Graves stated that he was of the opinion that the chest pains Clark experienced the night before his death were either a heart attack or early warning signs of an attack that probably was the cause of Clark’s death, but said that he could not be certain. He also said that it was not unusual for one to die after suffering heart pains during the preceding night, whether or not he had any history of heart problems, but it was unusual, though not unheard of, for a person of Clark’s age to die of a heart attack; and, if there had been a heart attack the night before Clark’s death, it would not be unusual for him to die the next day. All his information about Clark and the possibility of his having had a heart attack came from Helms and the transcript. The doctor felt that using a large wrench in an effort to turn a bit would probably not bring about a second heart attack, but that getting out and working the day after a heart attack would more likely cause sudden death than staying in bed and seeing a doctor. He said that if Clark was performing the activity about which he read in the transcript, he would “probably be more likely” to have suffered a second heart attack.

On recross-examination, Graves said he “had an idea” that Clark had experienced a heart attack the night before his death and said that most “patients” who are undergoing a heart attack have an increased probability of additional heart disease or even death, as a result of physical activity, but that he would not say that Clark might not have died during the next day in any event and that he did not find anything in the transcript that happened to Clark on the day of his death that necessarily contributed to it. He found nothing to indicate that Clark had done anything extra hard that day that might have precipitated his death.

We should first dispose of appellant’s contention that the commission could not have made the decision it made if it had followed Harper v. Henry J. Kaiser Construction Co., 233 Ark. 398, 344 S.W. 2d 856. The impact of this decision insofar as this case is concerned, is that, since medical science has been unable to agree as to what causes, contributes to, or hastens a heart attack, the Workmen’s Compensation Commission must make the decision in each case based upon the evidence in that case, but that in every such case the causal relation of the employment must be shown by a preponderance of the evidence. The mere fact that only one doctor testified does not diminish the impact of that decision, lighten the burden of the claimant or dictate the result the commission must reach. It is for the commission to determine the extent to which credit is given to testimony, even when it is undisputed. Wilson v. United Auto Workers International Union, 246 Ark. 1158, 441 S.W. 2d 475. It is quite clear that there was, to say the least, considerable uncertainty in the mind of Dr. Graves as to the cause of Clark’s death. The commission took note of the fact that there were important factors militating against resolving that uncertainty favorably to the party having the burden of proof. Among them were Clark’s age, the lack of a history of heart disease, high blood pressure or chronic disease, his being accustomed to strenuous work, the lack of evidence that Clark had been sweating and losing body fluid, and the fact that he was not overweight. The uncertainty of the doctor’s opinion that Clark’s death was attributable to a heart attack causally related to his employment and the adverse factors admitted by the doctor were sufficient basis for the commission to find that there was no fair and reasonable basis for that opinion, and that the real import of his testimony was that it was his opinion that Clark was not predisposed to any type of heart attack, that there was nothing in the evidence before the commission to lead him to believe that either the weather or the work Clark was doing had anything to do with his sudden death and that the chest pains and shortness of breath experienced by Clark might or might not have been indicative of cardiac or coronary artery disease.

The evaluation of this testimony as to medical soundness and probative force was a question for the commission. Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W. 2d 868. It is the responsibility of the commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncontroverted; and, when it does so, its findings have the force and effect of a jury verdict. McCollum v. Jones Truck Lines, Inc., 244 Ark. 762, 427 S.W. 2d 18; Abbott v. C. H. Leavell & Co., 244 Ark. 544, 426 S.W. 2d 166; Missouri City Stone, Inc. v. Peters, 257 Ark. 917, 521 S.W. 2d 58. We cannot reverse such a finding unless we could reverse a jury verdict on the same question. Barksdale Lumber Co. v. McAnally, supra; Mass Merchandiser, Inc. v. Harp, 259 Ark. 830, 536 S.W. 2d 729; Ark. Coal Co. v. Steele, 237 Ark. 727, 375 S.W. 2d 673. The question presented to us is not whether there was either substantial evidence or a preponderance of the evidence to support appellant’s claim, or a result contrary to that reached by the commission; it is whether there was any substantial evidence to support the finding in favor of the employer. Barksdale Lumber Co. v. McAnally, supra; Mosley v. El Dorado School District, 254 Ark. 326, 493 S.W. 2d 427. Even though the evidence might support a result different from that reached by the commission, we must be convinced that fair-minded men could not have reached the conclusion it reached upon the evidence submitted, before we reverse the commission’s findings for want of substantial evidence. Purdy’s Flower Shop v. Livingston, 262 Ark. 575, 559 S.W. 2d 24; Mass Merchandisers, Inc. v. Harp, supra; Julian Martin, Inc. v. Indiana Refrigeration Lines, 262 Ark. 671, 560 S.W. 2d 228. In our determination of this question, we have considered only that evidence, and that version of it, which is most favorable to the appellee. See Stephens & Stephens v. Logan, 260 Ark. 78, 538 S.W. 2d 516; Mass Merchandisers, Inc. v. Harp, supra; Clark v. Shiloh Tank & Erection Co., 259 Ark. 521, 534 S.W. 2d 240.

We are unable to say that fair-minded men could not reach the conclusion upon which the commission denied this claim. We most assuredly would not overturn a jury verdict based on the evidence here. In so concluding, we find that portions of Dr. Graves’ testimony which were favorable to appellee were not incredible as a matter of law, or so contrary to common sense or so clearly based upon conjecture that we should disregard it. See Barksdale Lumber Co. v. McAnally, supra. Even though we might feel that the commission reached the wrong result, we are not at liberty to upset its finding; because we find substantial evidence to support it. Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S.W. 2d 166.

There are two other contentions made by appellant however, which we must consider, because if we agreed with either of them, our result might be different. First, appellant contends that the doctor’s answer to the hypothetical question earlier set out should not be considered because some of the assumed facts were not supported by the evidence. She then invokes Rhea v. M-K Grocer Co., 236 Ark. 615, 370 S.W. 2d 33, to support the conclusion that the key medical opinion was elicited by an improper hypothetical question. In the first place, we disagree with appellant’s interpretation of the evidence upon which the hypothetical question was based. It seems to us that the question was based upon inferences fairly drawn from the testimony set out herein rather fully. We must remember that the commission is not bound by strict rules of evidence in the admission or consideration of any evidence, including medical testimony. Barksdale Lumber Co. v. McAnally, supra; Davis v. Arkansas Best Freight System, 239 Ark. 632, 393 S.W. 2d 237, 17 ALR 3d 986. It has broad discretion with reference to admission of evidence. Northwestern National insurance Co. v. Weast, 253 Ark. 710, 488 S.W. 2d 322. It is free to make such inquiry and to conduct the proceedings in such a manner as to best ascertain the rights of the parties. Ark. Stat. Ann. § 81-1327 (a) (Repl. 1976). It certainly is not to be held in error where it does follow the rules of evidence, so long as there is no abuse of its discretion.

There was no objection made to the hypothetical question asked or to the answer given. If it should have included other facts or if it included facts not established by the testimony, an objection should have been made, and, not having been made, it cannot be made for the first time on appeal. Chapman v. Finkbeiner, 230 Ark. 655, 324 S.W. 2d 348. See also, Southwestern Gas & Electric Co. v. Halter, 200 Ark. 244, 138 S.W. 2d 793. If objection had been made, the question could easily have been reworded to meet any valid objection.

We do not read Rhea as dictating a reversal, where the basis given for the expert opinion is clearly stated. Furthermore, we do not consider the statement quoted from 3 Larson, Workmen’s Compensation Law, 15-406, § 80.20, that an award could not stand where the medical opinion on which it is based was elicited by an improper hypothetical question to apply to a question to which no objection was made and which was not totally improper.

Appellant also contends in her reply brief that the commission should not have considered the answer given by Dr. Graves, which was based upon his review of the transcript. She again relies upon Rhea, in which we said that permitting a doctor to simply read the entire record and base his opinion upon that record without stating the particular testimony or facts upon which the opinion is based, makes him a trier of the facts and usurps the function of the commission. Dr. Graves’ opinion favorable to appellee was not based entirely upon his review of the testimony, as can be seen from our extensive outline of the evidence. On the other hand, his review of the transcript, to a considerable extent, was directed to the absence of facts to support his opinion that there was a possible causal relation, rather than the presence of facts to support the contrary conclusion. A critical factor in Rhea, not present here, was the fact that the medical expert who based his opinion on a review of the record did not have the complete record before him, as some of the pertinent evidence had not even been introduced when he gave his opinion. Here, again, no objection was interposed. Even if there had been, the commission might well have chosen to follow the rule of evidence now in force in judicial proceedings, eliminating objections to opinion evidence on the basis that it embraces an ultimate issue to be decided by the trier of fact. See Ark. Stat. Ann. § 28-1001, Rule 704 (Supp. 1977).

Another argument advanced by appellant in response to appellee’s brief is the contention that the commission’s findings of fact were deficient in that they were not in sufficient detail to permit the courts to ascertain whether the commission had applied the correct rules of law. We think that appellant might have been in position to complain had the commission merely stated its conclusion that appellant had failed to meet her burden of proof or that the evidence was insufficient to show that Clark had suffered an accidental injury arising out of and in the course of his employment. We do not deem a full recitation of the evidence to be required, so long as the commission’s findings include a statement of those facts the commission finds to be established by the evidence in sufficient detail that the truth or falsity of each material allegation may be demonstrated from the findings, the losing party can specify the particulars in which they are not supported by the evidence and the reviewing court may perform its function to determine whether the commission’s findings as to the existence or non-existence of the essential facts are or are not supported by the evidence. 82 Am. Jur. 2d 287, et seq, Workmen’s Compensation, §§ 558, 560, 563; 100 CJS 910, Workmen’s Compensation, § 630 et seq; Simmons Co. v. Industrial Accident Commission, 70 Cal. App. 2d 664, 161 P. 2d 702 (1945); Metros v. Denver Coney Island, 110 Col. 40, 129 P. 2d 911 (1942); Swan v. Williamson, 74 Idaho 32, 257 P. 2d 552 (1953). The findings of the commission in this case cannot be held deficient.

The judgment is affirmed.

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

       It is true that we said that, in determining the sufficiency of the evidence, doubts should be resolved in favor of the claimant in Johnson Auto Co. v. Kelley, 228 Ark. 364, 307 S.W. 2d 867, relied upon by appellant. In that case, however, the commission had found in favor of the claimant, and the statement was correct in that situation. This case has never been cited on this point except in a dissenting opinion in Latimer v. Sevier County Farmers' Cooperative Inc., 233 Ark. 762, 346 S.W. 2d 673, where we affirmed the commission’s holding that a widow had failed to establish a causal relation between her husband’s employment and his death. The authority cited in Kelley was Herron Lumber Co. v. Neal, 205 Ark. 1093, 172 S.W. 2d 252, where we were also reviewing the evidence in a case where the commission awarded compensation. The correct rule is stated in Bale Chevrolet Co. v. Armstrong, and is consistent with our holding in both Kelley and Latimer.

       As we pointed out in Ocoma Foods v. Grogan, 253 Ark. 1111, 491 S.W. 2d 65, we have approved some commission awards where those furnishing the medical evidence used the terms “possible,” “might” and “could cause.” Such an uncertainty of opinion can hardly afford a basis for reversal of a commission’s finding, adverse to the claimant, after it evaluated the medical testimony.

       For an extended discussion of the various approaches to questions pertaining to the necessity, form and contents of findings of fact to support administrative determinations relating to workmen’s compensation, see Annot. 146 ALR 123.


author: Frank Holt, Justice.

text:
    THE EXCHANGE BANK & TRUST CO. v. GLENN’S MARINE, INC.
    78-300
    579 S.W. 2d 358
    Opinion delivered April 16, 1979
    (Division II)

      Spencer & Spencer, for appellant.

      Nolan, Alderson & Jones, for appellee.
   Frank Holt, Justice.

Appellant brought this replevin action against appellee to recover possession of an outboard motor. This appeal follows the jury’s verdict for appellee. Appellant asserts that neither the court’s instruction No. 8 concerning sale on approval nor the jury’s verdict was supported by substantial evidence. We discuss these contentions together.

James Beeson executed a promissory note to appellant in the amount of $4,088.52 on May 6, 1977, in order to finance his purchase of a boat, trailer and 55 h.p. motor from appellee. On that date he granted appellant a security interest on the boat rig. Appellant properly filed the financing statement covering the collateral. About three days later, unknown to appellant, Beason exchanged the mortgaged motor with the appellee-seller for a larger one. Beason defaulted on the note. Appellant brought a replevin action against the appellee-seller seeking return of the collateral (the smaller motor) or its value plus damages for wrongful detention by appellee. At trial the court gave the following instruction No. 8:

In this connection you are instructed that if it is agreed that personal property delivered may be returned by the buyer even though it conforms to the agreement, the transactions is a sale on approval.
And you are told title to personal property held on approval does not pass until the property is accepted by the buyer provided that, unless otherwise agreed, failure to notify the seller within a reasonable time of the election to return the property is acceptance. What is a reasonable time to give notice of the election to return the property is a question of fact for you to determine taking into consideration the nature, purpose and circumstances of the sale on approval.

Appellant does not question the instruction as a correct declaration of law. It argues that there was no substantial evidence presented which would support the instruction. Ark. Stat. Ann. § 85-2-326 (Add. 1961) provides:

(1) Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is
(a) a ‘sale on approval’ if the goods are delivered primarily for use ....

The comment to that provision states:

The type of ‘sale on approval’.... dealt with involves a contract under which the seller undertakes a particular business risk to satisfy his prospective buyer with the appearance or performance of the goods in question. The goods are delivered to the proposed purchaser but they remain the property of the seller until the buyer accepts them. The price has already been agreed. The buyer’s willingness to receive and test the goods is the consideration for the seller’s engagement to deliver and sell.

§ 85-2-327 provides:

(1) Under a sale on approval unless otherwise agreed
(a) although the goods are identified to the contract the risk of loss and the title does not pass to the buyer until acceptance; and
(b) use of the goods consistent with the purpose of trial is not acceptance but failure seasonably to notify the seller of election to return the goods is acceptance ....

Here the facts are undisputed. When Beason purchased the boat rig, the appellee-seller agreed that if Beason was satisfied after a weekend trial period, he could keep the smaller motor or return it and exchange it for a larger one. Appellee made Beason two price offers, one on the smaller motor, the other on the larger motor. Appellee did not consider the sale consummated at the time Beason took the smaller motor and required Beason to obtain insurance since the total loss would fall on appellee if anything happened to the “rig. ” At the time Beason took the smaller motor, he left a deposit with appellee to “assure .... that he was going to buy it one way or the other. It was just a question of which motor.” Within 48 hours, Beason exchanged motors with appellee.

Appellant contends that such an arrangement alone does not create a sale on approval. It argues that, under the general Code provision, § 85-2-401, title to the smaller motor passed to Beason on May 4, 1977, at the time the property was physically delivered to him, and therefore appellant’s security interest is enforceable. According to appellant, the testimony indicated that the transaction was, in fact, an absolute sale, with “right to rescind and return, ” and there was no evidence of a sale on approval. It further cites Anderson, Uniform Commercial Code, 2d, Vol. 1 § 3-236:15, quoting from § 3-326:14 and Gantman v. Paul, 199 A. 2d 519 (Pa. 1964), as standing for the proposition that where “invoices and documents give the appearance of an absolute sale, it will not be converted into a sale on approval and that the buyer had never approved.” However, the Gantman case, the only case cited in Anderson, supra, as authority for the stated proposition, dealt with a situation where the seller attempted to replevy articles to which the buyer asserted title, claiming that it had sold the goods on approval and the buyer had never accepted. Such a situation is not applicable here. We think the passage of title here is governed by § 85-2-327 rather than the general rule relied upon by appellant as expressed in § 85-2-401. § 85-2-327 provides that on a sale on approval, unless otherwise agreed, title passes only at the time the buyer accepts.

After viewing the evidence in the light most favorable to the appellee, there was substantial evidence to warrant the court’s instructing the jury on the issue of a sale on approval and for the jury to resolve the issue in favor of appellee.

Affirmed.

We agree: Harris, C.J., and Fogleman and Hickman, JJ-


author: George Rose Smith, Justice.

text:
    LITTLE ROCK POLICE DEPARTMENT, ex rel. Lee A. MUNSON, Prosecuting Attorney v. ONE 1977 LINCOLN CONTINENTAL MARK V and Fred B. SANDS
    78-302
    580 S.W. 2d 451
    Opinion delivered April 23, 1979
    (Division I)
    [as amended on Denial of Rehearing May 21, 1979.]

      Lee A. Munson, Pros. Atty.; John Wesley Hall, Jr., Deputy Pros. Atty; and R. Jack Magruder, 111, Little Rock City Atty., for appellant.

      Jack Holt, Jr., and Deborah Davies Cross, for appellees.
   George Rose Smith, Justice.

At about 2:15 a.m. on December 10, 1977, the appellee Fred B. Sands, 22, a college student, drove his 1977 Lincoln Continental car to the SAE fraternity house in Little Rock. Several police officers, on the basis of an informer’s tip, were waiting for Sands and the car. They conducted a warrantless search of the car and found 3.14 pounds of marihuana in the trunk. The Little Rock Police Department, on the relation of the prosecuting attorney, then brought this action for a forfeiture of the car as a vehicle that had been used in the transportation of drugs. Ark. Stat. Ann. § 82-2629 (Supp. 1977). The trial judge dismissed the action, finding that the search of the car was illegal. The appellant seeks to sustain the search on two different grounds.

First, it is argued that the officers had probable cause to search the car. Officer Dawson testified that the confidential informer telephoned three times, at about 9:00 p.m., at about 10:00 p.m., and shortly before 2:15 a.m. The informer described Sands and the car, including its license number, and said that Sands was on his way to the SAE house with ten pounds of marihuana. Officer Dawson said that he had met the informer, but he did not know him well and had never worked with him on a case, though “the office” had. The informer’s description of Sands and of the car proved to be correct. At the hearing counsel for the prosecution intimated that other witnesses from the narcotics division could be brought in to show that the informer had been used before, but no such proof was actually submitted.

The trial judge was right in holding that the State’s testimony did not meet the recognized two-prong test for determining the existence of probable cause. That test was laid down in Aguilar v. Texas, 378 U.S. 108 (1964), where the court held that an officer may obtain a search warrant on the basis of an informer’s statements, but the magistrate must be supplied with (1) some underlying circumstances showing that the informer is reliable and (2) some underlying circumstances from which the informer concluded that the contraband was where he said it was.

Here neither requirement was satisfied. As to reliability, Officer Dawson had not previously acted upon information supplied by the informer, nor is it shown that the officer had any other basis for believing the informer to be reliable. The hearsay statement that “the office” had worked with him is not enough. Nor was the second requirement met. The informer merely said that Sands would be driving a certain car in delivering ten pounds of marihuana to the SAE house. He did not indicate in any way whatever how he reached that conclusion. Thus none of the underlying circumstances essential to a finding of probable cause were shown to exist. In the absence of probable cause there was no basis for a search as being incidental to an arrest or as being within the automobile exception to the basic rule against warrantless searches.

The appellant argues, however, that the information given by the informer in describing Sands and the car was so precise and so detailed as to be self-verifying and therefore sufficient to meet both prongs of the Aguilar test. Reference is made to Spinelli v. United States, 393 U.S. 410 (1969), where the court, in discussing a pre-Aguilar case, said: “A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” The court did not suggest, however, the second prong of the test could be satisfied in the same way.

In the case at bar we certainly cannot say that the details supplied by the informer were sufficient to dispense with the requirement that there be shown the underlying circumstances from which the informer concluded that marihuana would be in Sands’ car. It is important to note that the details supplied by the informer related solely to innocuous facts; that is, the physical description of Sands and of his car. But in Spinelli the court pointed out that “it is especially important that the tip describe the accused’s criminal activity.” To the same effect is this statement from Nance v. United States, 377 A. 2d 384 (D.C. Cir., 1977):

Arguably, then, if his tip was true in part, it may be inferred it was true in whole. We note, however, that courts and commentators have rejected the proposition that police investigation which substantiates only innocuous aspects of a tip will suffice to establish that the informant was telling the truth about the remaining critical part, i.e., the allegation of criminal conduct. [Citing authorities.]

We agree with that view and therefore hold that in the present case the informer’s description of Sands and his car cannot dispense with the requirement that there also be shown the underlying facts that led the informer to believe that the car would contain marihuana.

Second, it is argued that Sands consented to the search. The officers testified that Sands voluntarily opened the trunk of his car when they asked him to. Sands testified, however, with corroboration by the girl who was with him, that there were several uniformed policemen present, that they demanded that he open the trunk, that he was scared, and that he opened the trunk because the officers said they could open it anyway. The State must prove consent to a search by clear and positive testimony, with no duress or coercion, express or implied. White v. State, 261 Ark. 23-D, 545 S.W. 2d 641 (1977). We are unable to say that the trial judge was wrong in finding the evidence insufficient to establish voluntary consent.

Affirmed.

We agree. Harris, G.J., and Byrd and Hickman, JJ.


text:
    Charles Parker HARRIS v. STATE of Arkansas
    CR 79-8
    580 S.W. 2d 453
    Opinion delivered April 23, 1979
    (Division I)
    [Rehearing denied May 29, 1979.]

      Ralph M. Cloar, Jr. and Robert L. Lowery, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On the night of November 17, 1976, Harris shot and killed his wife while the couple were sitting in a booth in a tavern in Little Rock. Charged with second degree murder, Harris was found guilty and sentenced to 10 years’ imprisonment “and/or” a $5,000 fine. We reversed the judgment, owing to the ambiguity in the verdict, and ordered a new trial. Harris v. State, 262 Ark. 680, 561 S.W. 2d 69 (1978). At the second trial Harris was again convicted and was sentenced to 20 years’ imprisonment. Two points for reversal are argued.

At both trials the defense attempted to prove that Harris was engaging in horseplay and that the shooting was accidental. At the second trial the State, doubtless anticipating that defense, introduced testimony showing that Harris and his wife, during their two years of married life, had frequent quarrels. On several occasions Harris threatened to kill her, and in one instance he beat her so severely that she was hospitalized for a substantial period. It was also shown that at the time of the homicide a divorce suit was pending and the parties had agreed upon an uncontested decree.

On the first appeal Harris argued that the State had not proved an intent to kill; but we pointed out that the culpable mental state required for second-degree murder is not an intent to kill, but rather to “knowingly” cause that result. Ark. Stat. Ann. § 41-1503 (Repl. 1977). At the second trial the court instructed the jury in the language of the statute.

It is now argued that, since proof of an intent to kill was not essential, the State should not have been allowed to prove that Harris had threatened to kill his wife and had severely beaten her. That evidence, however, was relevant, because it tended to prove that Harris, in shooting his wife, acted knowingly rather than accidentally. That the testimony could also be taken to imply that Harris intended to kill his wife did not render it inadmissible. The State is entitled to prove its case as conclusively as it can. Reeves v. State, 263 Ark. 227, 564 S.W. 2d 503 (1978). It frequently happens, in a prosecution for second-degree murder, that the State’s proof could be interpreted to support a finding of first-degree murder, but that does not mean that the testimony is therefore inadmissible. Relevant proof is not to be excluded merely because inferences going beyond the State’s burden of proof might be drawn if the issues were different.

It is also argued that the more severe punishment imposed at the second trial demonstrates vindictiveness on the part of the prosecution, as a reaction to Harris’s success in taking his first appeal. Counsel rely upon the holding in North Carolina v. Pearce, 395 U.S. 711 (1969). There, however, it could be inferred that the trial judge acted vindictively in increasing the severity of the sentence, to punish the defendants for having obtained postconviction relief. Here the two trials were heard by entirely different juries. The second jury is not shown to have known anything about the first sentence or about the successful appeal. Consequently there is no basis for a finding of vindictiveness, and the more severe sentence is valid. Chaffin v. Stynchcombe, 412 U.S. 17 (1973).

Affirmed.

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