author: J. Fred Jones, Justice. Conley Byrd, Justice,

text:
    VERN BARNETT CONSTRUCTION COMPANY, Inc. v. J. A. HADLEY CONSTRUCTION COMPANY, Inc. and MARYLAND CASUALTY COMPANY
    73-38
    496 S.W. 2d 446
    Opinion delivered July 9, 1973

      Douglas Bradley and Jon R. Coleman, for appellant.

      Barrett, Wheatley, Smith <b Deacon, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Vern Barnett Construction Company, Inc., hereinafter called Barnett, from that portion of a judgment of the Craig-head County Circuit Court which failed to award statutory penalty and attorney’s fee against Maryland Casualty Company in a suit by Barnett against J. A. Hadley Construction Company, hereinafter called Hadley, and its bondsman Maryland Casualty Company, hereinafter called Maryland. Hadley and Maryland cross appeal, on assigned error of the trial court in refusing their request to open and close the argument to the jury under the contention that they had the burden of proof and were entitled to open and close the argument under Ark. Stat. Ann. § 27-1727 (Repl. 1962).

The facts appear as follows: Hadley was awarded a contract for the construction of a bypass on a highway in Craighead County and in connection therewith entered into a contract with Barnett under which Barnett was to furnish asphalt paving material at a stipulated price and was to apply the asphalt material to the surface of the highway. Maryland was the bonding company for Hadley and agreed to pay such sums as Hadley would fail or refuse to pay for materials and services in connection with the project.

On September 21, 1971, Barnett filed its itemized and verified complaint against Hadley and Maryland alleging balance due on the contract for materials furnished and services performed in the amount of $14,719.64 with accrued interest thereon amounting to a total of $14,934.22. It alleged that Hadley had tendered the sum of $10,300.90 in full settlement of the account but that the tender was refused. The complaint prayed judgment against Hadley and Maryland for $14,934.22 with interest at six per cent. On October 11, 1971, Hadley and Maryland filed their answer admitting the contract and relation between the parties, and admitting that Hadley owed to Barnett the sum of $10,300.90 for which its checks had been issued and would be honored. It denied the other allegations in the complaint. The answer then alleged as follows:

“. . . [T]he $4,633.32 difference between the amount claimed by Barnett and the amount tendered by Hadley represents expense incurred by Hadley at the request of the State of Arkansas and for the proper completion of work which was the responsibility of Barnett, and therefore such expense was a proper deduction from any sums due and payable to Barnett.
WHEREFORE, the defendants pray that the complaint of plaintiff be dismissed and that it have its costs and all other proper relief.”

On May 16, 1972, Barnett filed an amendment to its complaint stating as follows:

“1. Subsequent to filing suit the defendant, J. A. Hadley Construction Company, Inc., has paid $10,-300.90. Excluding interest, the items in controversy between the parties which constitutes plaintiff’s cause of action against J. A. Hadley Construction Company, Inc., and Maryland Casualty Company are as follows:
COUNT NO. I
Amount deducted from plaintiff’s estimate dated August 31, 1971, $2,928.08, with interest thereon at 6% from August 31, 1971.
COUNT NO. II
Amount deducted from estimate dated November 15, 1969, $1,490.66, with interest thereon at 6% from November 15, 1969.
WHEREFORE, Plaintiff prays for judgment in the total principal sum of $4,418.74, plus interest as hereinabove set out, and for cost including statutory penalty and attorney fee against Maryland Casualty Company.”

Hadley and Maryland answered the amendment as follows:

“The defendants, for answer to the amendment to complaint, reiterate and reallege the defenses set forth in the original answer; deny that Maryland Casualty Company as surety on the bond of Hadley is liable for statutory penalty and attorneys’ fee as claimed; and deny each and every other material allegation of such amended complaint.”

The jury returned a verdict for Barnett for $4,418.72 and judgment was entered thereon together with accrued interest, but Barnett’s motion for penalty and attorney’s fee was denied. For the purpose of this appeal the parties stipulated as follows:

“1. Open Statements were made first by plaintiff’s attorney and second by defendants’ attorney.
2. Plaintiff introduced into evidence the contract between the parties (Plaintiff’s Exhibit 1) attached, and called as its first witness Vern Barnett who testified as to the contract, and stated that all payments thereunder had been paid except for two items deducted from two estimates prepared by defendant Hadley: (1) the sum of $1,490.66, deducted from estimate dated November 15, 1969, (Plaintiff’s Exhibit No. S) attached; and (2) $2,928.08, deducted from estimate dated August 31, 1971, (Plaintiff’s Exhibit No. 4) attached, a total due plaintiff of $4,418.74.
3. Plaintiff rested.
4. Defendant Hadley offered several witnesses alleging plaintiff’s failure to finish and clean up his contract work, expenses of defendant Hadley in cleaning up and finishing plaintiff’s work, all of which testimony was directed toward justifying the two deductions from the respective estimates. See Defendants’ Exhibits ‘E’ and T’ attached. Defendant Maryland Casualty Company introduced no evidence separate from its principal.
5. Plaintiff Barnett introduced contradictory evidence in rebuttal to the effect that plaintiff did compíete its work according to contract and cleaned up the contract premises after finishing said contract work.
6. Among other instructions, the court at plaintiff’s request instructed the jury that Hadley had the burden to prove the debt it contended Barnett owed it before being entitled to the offset.
7. The parties made no objection to the instructions given by the court and requested no additional instructions.
8. Defendants, after all parties rested, requested to open and close the jury argument which was denied by the court, and argument to the jury was first by the plaintiff’s attorney, then by the defendants’ attorney, and closing argument by the plaintiff’s attorney.”

Barnett contends on this appeal that the trial court erred in failing to allow plaintiff penalty and attorney’s fee as provided in Ark. Stat. Ann. § 66-3238 (Repl. 1966). Hadley and Maryland contend that the court was correct in denying the penalty and attorney’s fee because appellant did not recover the exact amount for which it sued and for the further reason that the statute does not apply to the facts in this case. Hadley and Maryland contend on cross appeal, that the trial court erred in refusing their request to open and close argument to the jury since they had the burden of proof. We conclude that the judgment of the trial court must be reversed on the cross appeal; consequently, the point raised on direct appeal is rendered moot and will only be referred to again at the close of this opinion.

The statutory provisions pertaining to the issue on the cross appeal are Ark. Stat. Ann. § 27-1727 and §§ 28-101 — 102 (Repl. 1962). These sections read as follows:

“27-1727 When the jury has been sworn, the trial shall proceed in the following order, unless the court, for special reasons, otherwise directs:
First. The plaintiff must briefly state his claim. and the evidence by which he expects to sustain it.
Second. The defendant must then briefly state his defense, and the evidence he expects to offer in support of it.
Third. The party on whom rests the burden of proof in the whole action must first produce his evidence. The adverse party will then produce his evidence.
Fourth. The parties will then be confined to rebutting evidence, unless the court, for good reasons, in furtherance of justice, permits them to offer evidence in their original case.
Fifth. When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be given or refused by the court which instructions shall be reduced to writing if either party require it.
Sixth. The parties may then submit or argue the case to the jury. In the argument the party having the burden of proof shall have the opening and conclusion; and if, upon the demand of his adversary, he shall refuse to open and fully state the grounds upon which he claims a verdict, he shall be refused the conclusion.
28-101 The party holding the affirmative of an issue must produce the evidence to prove it.
28-102 The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side.”

In the early case of Roberts v. Padgett, 82 Ark. 331, 101 S.W. 753, a Mr. Roberts executed and delivered to R. M. Carter a promissory note in payment for an insurance policy which was to be delivered and the note was assigned by Carter to Mr. Padgett. When the insurance policy was delivered to Roberts, he returned it to the company contending that the insurance was misrepresented to him by Carter. Suit was instituted on the note in Justice of the Peace Court, and no written pleadings were involved, but the defendant orally admitted the execution of the note and for a defense alleged that the note was procured through the fraudulent misrepresentations of the insurance agent and that the consideration for the note had failed. He also denied that the note was transferred to the plaintiff, Padgett, before maturity or that he was a bona fide purchaser for value. This court found that the only serious question in the case was whether the trial court committed error in refusing to allow counsel for the defendant to make the opening and closing argument before the jury. After reciting that portion of the statute (now § 27-1727) providing that “in the argument the party having the burden of proof shall have the opening and conclusion,” and also citing the statute (now § 28-102) “the burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side,” this court said:

“Now, the promissory note executed by the defendant was the basis of the plaintiff’s action. The defendant did not deny that he had executed it, or that it had been assigned to the plaintiff. He undertook to show that it was procured by fraud and misrepresentation, and also that there was a failure of consideration; and he denied that the note had been transferred to plaintiff before maturity, or that plaintiff was a bona fide purchaser for value. But, as there was no denial of the execution of the note or its assignment to plaintiff before the action was commenced, it is evident that, had the defendant introduced no evidence, judgment would have been rendered against him, whether plaintiff introduced any evidence or not. It follows from the statute which we quoted that the burden of proof was on the defendant. . . .

The law on this point is thus stated in a recent work:

‘In all suits on promissory notes, bills of exchange, accounts, insurance policies, or any other form of money demands where the amount claimed is liquidated and can be ascertained without the necessity of proof, the defendant is entitled to open and close the evidence and argument, if he relies for his defense solely on affirmative pleas, as payment, failure or want of consideration or duress, setoff and counterclaim, usury, or other pleas in bar by way of confession and avoidance.’ 15 Enc. Plead. & Prac. 194.
This statement of the law is supported by a large number of decisions, and supports the conclusion we have reached in this case. On account ¡of the refusal of the court to allow counsel for the. defendant to open and close the argument, the judgment is reversed and a new trial ordered.”

In the later case of Kempner v. Stephens, 186 Ark. 877, 56 S.W. 2d 580, a Mr. Chambers organized a motor oil system corporation and exchanged patents he owned for all of the 25,000 shares of stock in the corporation. He transferred 3,000 shares to Mr. Kempner and took Kempner’s note in payment. Chambers was president of the company and Kempner was vice-president and director. A Mr. Duke sold some of the stock to Mr. Stephens and received in payment a check for $1,000 and a note for $1,000. The note was endorsed by Duke and transferred to Chambers. Chambers afterwards transferred the note to Kempner without endorsement. This note was given for stock sold in the corporation and the Blue Sky Law wats not complied with. It also turned out that the stock was worthless. Kempner sued to recover on the note and Stephens defended on the ground that the stock was worthless and was sold in violation of the Blue Sky Law. A statute in effect at that time prohibited the sale of stock by any dealer or corporation unless the person selling it had complied with the Blue Sky Law. The term “dealer,” however, did not include the owner or issuer of such securities or stock who acquired the same for his own account in the usual and ordinary course of business. The fact question, therefore, was whether Duke was a dealer in stocks which made him and the stock subject to the Blue Sky Law when he sold it to Stephens. Stephens testified about purchasing the stock and paying $1,000 cash and giving his note and he testified thait the stock was worthless. The witnesses for Mr. Kempner contradicted the statements made by Stephens and his witnesses. The jury rendered a verdict for Stephens and on appeal Kempner, among other assignments, contended that the trial court erred in permitting the attorney for the defendant Stephens to make the opening and closing argument. After quoting the pertinent statute, this court said:

“The burden of proof in the whole case was on the defendant. He admitted that he paid $1,000 cash and executed his note for $1,000, and the only defense that he interposed was that the stock was sold in violation of the Blue Sky Law. The burden was on him to prove this.”

After citing at length from Roberts v. Padgett, supra, this court in Kempner continued:

“The burden was upon the defendant in the only issues involved in this case, and this fact entitled him to open and. conclude the argument. Columbian Woodmen v. Howle, 131 Ark. 299, 198 S.W. 286.
There was no error in permitting the defendant to open and conclude the argument. The jury was the judge of the credibility of the witnesses and the weight to be given to their testimony, and the finding on these questions is conclusive here.”

As already shown in the case at bar, the complaint alleged an indebtedness of $14,719.64 exclusive of interest and by amendment to the complaint alleged that $10,300.90 had been paid on the indebtedness, and there remained a balance of $4,418.74 (exclusive of accrued interest) still due and owing on the account. The answer admitted that $10,300.90 had been tendered in full payment of the account and the answer stated that the difference between the amount claimed and the amount tendered in payment was for additional expenses incurred by the appellee-defendant Hadley in completing the work that Barnett was required to perform and therefore, such expenses were a proper deduction from the sums due and payable to the plaintiff-appellant Barnett. This contention was reiterated in Hadley’s and Maryland’s answer to the amendment to the complaint.

We can only conclude from the face of these pleadings that Hadley admitted the correctness of the balance due in the principal balance of $14,719.64 under the contract as alleged by Barnett, and the only reason Hadley had not paid the full amount owed was because of set-off Hadley claimed against Barnett in the amount of $4,-418.74 for the additional materials and work Hadley was required to furnish and perform. With the issues thus joined by the pleadings, the stipulation sets out that opening statements were first made by the plaintiff’s attorney and second by the defendant’s attorney. We are of the opinion that if judgment had been entered at this point, the $4,418.74 difference between the amount claimed by Barnett and the amount tendered and later paid by Hadley, should have been awarded to Barnett in the absence of proof by Hadley that it was entitled to withhold this amount for the materials furnished and work performed and properly chargeable to Barnett as alleged in the answer. According to the stipulation, Barnett introduced into evidence the contract between the parties and Mr. Barnett testified that all payments had been made under the contract with the exception of the two items withheld or deducted by Hadley, and Barnett then rested its case. At this point Hadley and Maryland had admitted in their answer all that the contract and Barnett’s testimony tended to prove. If judgment had been entered at this point, it should have been in favor of Barnett for the $4,418.74.

According to the stipulation, the appellee-defendant Hadley then went forward with its evidence toward justifying the two deductions involved, and in rebuttal Barnett introduced contradictory evidence to the effect that it did complete its work according to the contract, such rebuttal evidence tending to disprove Hadley’s right to make the deductions.

In final analysis the only question involved was whether Barnett owed Hadley $4,418.74 for services and materials Barnett was obligated to perform and furnish under its contract and this was recognized by the instruction given, without objection, at Barnett’s request, to the effect as set out in the stipulation, “that Hadley had the burden to prove the debt it contended Barnett owed it before being entitled to the offset.” We conclude, therefore, that the trial court erred in not permitting Hadley’s attorney to open and close the argument to the jury because as we view this case, the defendant-appellees had the entire burden of proof under the pleadings and the evidence in this case. The appellant argues that no prejudice was shown by the trial court’s ruling, but we are unable to say that no prejudice was shown when the jury returned a verdict for the full amount sued for, lacking two cents, in this particular case. We conclude, therefore, that the judgment must be reversed and this cause remanded for a new trial.

Since the points raised on direct appeal may arise again at a new trial, we only point out that statutory penalty and attorney’s fee in suits against insurers under Ark. Stat. Ann. § 66-3238 (Repl. 1966) are highly penal in nature and the statute should be strictly construed. We note that this statute has been applied to sureties on contractor’s bonds by the Eighth Circuit Court of Appeals in Trinity Universal Ins. Co. v. Smithwick, 222 F. 2d 16 and Reid v. Miles Construction Corp., 307 F. 2d 214, where the sureties contended that proper demand to justify allowance of penalty and attorney’s fees had not been made. The appellees argue, with some persuasive force, that the surety should not be penalized under this statute when its principal, a general contractor, has not been found liable or unable to pay and is asserting a good faith defense to this action. This argument may be meritorious in a case in which the surety does not itself contest the claim, but acknowledges that its liability is contingent upon a determination that its principal was, or is, liable. We have held that a surety who pays a claim against its principal before final adjudication of the principal’s liability, over the principal’s objection, cannot recover from the principal without showing that it made a good faith effort to protect the principal against the adverse claim. Fireman’s Fund Ins. Co. v. Clark, 253 Ark. 1025, 490 S.W. 2d 447. In that case, we found support for a judgment denying recovery to the surety in its failure to show that the claim was actually valid and meritorious. Applying this statute to a surety so the surety must either pay a claim and align itself against its principal or run the risk of being penalized by a liability for a 12% penalty and attorney’s fees seems to be beyond the salutary purpose and intent of the statute. But this is not such a case. Here both principal and surety joined in all pleadings and the allegations, admissions and denials contained in them. Neither filed a separate pleading or made any separate allegation. Even the notice of cross-appeal is joint. As far as this record discloses, the surety opposed appellant’s claim as vigorously as the principal did. We are not willing to say that the statute does not apply under the circumstances prevailing here.

As to the appellees’ further argument on the point relied on by the appellant, see Smith v. U.S.F. & G. Co., 259 Ark. 984, 395 S.W. 2d 749, and cases there cited, as well as the recent case of Southwestern Ins. Co. v. Camp, 253 Ark. 886 (1973), 489 S.W. 2d 498.

The judgment is reversed on cross-appeal and this cause remanded for a new trial.

Byrd and Holt, JJ., dissent in part.

Conley Byrd, Justice,

dissenting. I concur in the reversal of this judgment but disagree with so much of the opinion as suggests that a “good faith defense” prevents the assessment of a penalty and attorney’s fee under Ark. Stat. Ann. § 66-3238 (Repl. 1966). That statute in so far as is here applicable provides:

“In all cases where loss occurs and the cargo, fire, marine, casualty, fidelity, surety, cyclone tornado, life, health, accident, medical, or surgical benefit insurance company. . . liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such person, firm, corporation and/or association shall be liable to pay ... in addition to the amount of such loss, twelve per cent (12%) damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss;. . .”

An identical statute was involved in Missouri State Life Insurance Company v. Brown, 188 Ark. 1136, 69 S.W. 2d 1075 (1934). We there held that when the exact amount sued for was recovered, the insurance company was liable for the 12% penalty and attorney’s fee and that the good faith of the insurance company did not excuse it from the plain provisions of the statute. In doing so the court relied upon Life & Casualty Ins. Co. of Tenn. v. McCray, 187 Ark. 49, 58 S.W. 2d 199, 291 U.S. 566, 54 S. Ct. 482, 78 L. Ed. 987 (1934).

I take the language of the majority opinion as being a caveat that those decisions will be considered anew. I do not agree with that suggestion. If that is not the suggestion made by the majority, then I am at a loss to understand how a different rule under the same statute can constitutionally be applied to a surety company without unlawfully discriminating among other members of the same statutory class.

Because of this disagreement with the majority, I can only concur in the result.

Holt, J., joins in this dissent.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Robert Clinton PARKER v. STATE of Arkansas
    CR 73-49
    496 S.W. 2d 430
    Opinion delivered July 9, 1973

      Little ér Lawrence, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This is an appeal by Robert Clinton Parker from a circuit court judgment denying post-conviction relief following a Rule 1 hearing conducted upon remand by this court in Parker v. State, 253 Ark. 8, 484 S.W. 2d 91. The appellant was charged on information with the crime of first degree murder in the killing of Lola Ann Richardson in Benton County, Arkansas. He entered pleas of not guilty and not guilty by reason of insanity. He was committed to the State Hospital where he was found without psychosis after which he was returned to Benton County to await trial.

Parker was represented by two court appointed attorneys and on March 2, 1971, he appeared with his attorneys in open court and changed his plea from not guilty to guilty. The trial court made thorough inquiries as to the voluntariness of the change in plea and waiver of a jury trial and the court fully advised Parker of the rights he was waiving by a plea of guilty as well as the possible penalty following a plea of guilty. The trial court accepted the plea of guilty and sentenced the appellant to life in the penitentiary. At the time the plea was entered on March 2, 1971, the death penalty was the maximum penalty for first degree murder in Arkansas.

At the Rule 1 hearing on November 7, 1972, Parker contended that he was under the influence of the drug Thorozine at the time he changed his plea from not guilty to guilty; that he was unable to deliberate on the consequences of his plea cif guilty, and that this change in plea was not the result of his free and voluntary act. He called as witnesses George Clay, a deputy sheriff who was in charge of the county jail while Parker was incarcerated there, and also called Drs. Donald M. Cohagan and Stephen Finch who testified.

Mr. Clay testified that Parker was complaining of illness and requested that he be seen by a physician. He said that he called Dr. Donald M. Cohagan who examined Parker in the jail and prescribed 50 milligram doses of Thorozine to be taken four times a day. He said he administered the medication to Parker and that the dosage was later increased by Dr. Cohagan to 200 milligrams to be administered four times a day. He said that as a usual procedure he administered the medication at breakfast in the morning, at noon, at the evening meal and at bedtime. He said that on the day Mr. Parker appeared in court and pleaded guilty, he did not provide breakfast for the prisoners that morning and does not know whether the medication was administered at breakfast or not. He said that Parker was in court during the noon hour on that day.

Dr. Cohagan testified that Thorozine is a tranquilizing agent used in suppressing agitation and anxiety and has the common effect of a sedative. He said he first prescribed 50 milligram doses for Parker to be taken four times per day but later increased the dosage to 200 milligrams when he found that the smaller dosage was ineffective and Parker told him he had been taking 800 milligrams a day.

Dr. Finch testified that the effect of 800 milligrams of Thorozine per day would vary with individuals depending upon the extent of their agitation and level of immunity to the drug by prior use. He said he would be unable to determine what effect the dosage would have on Mr. Parker without having had the opportunity to examine him.

The trial court had the advantage of observing Parker when he questioned him concerning the voluntariness of his change in plea from not guilty to guilty. There is no evidence in the record, except Parker’s own testimony, that his judgment was at all affected by the consumption of drugs when he withdrew his plea of not guilty and entered his plea of guilty. The circumstances in connection with the homicide are not before us but as already stated, the appellant was represented by two attorneys; the death penalty was the maximum penalty for first degree murder when the appellant changed his plea from not guilty to guilty and was sentenced to life imprisonment. For all practical purposes the death penalty had been abolished in Arkansas when Parker changed his plea from not guilty to guilty. The two attorneys who represented Parker when he changed his plea, attended the Rule 1 hearing under subpoena by Mr. Parker but neither of them was called to testify.

The judgment is affirmed.

      See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. 2d 346 (June 29, 1972).


author: Conley Byrd, Justice.

text:
    George W. THOMPSON v. Marie W. THOMPSON
    73-11
    496 S.W. 2d 425
    Opinion delivered July 9, 1973

      Herndon & Barton, P.A., for appellant.

      Osborne W. Garvin, for appellee.
   Conley Byrd, Justice.

Appellant George W. Thompson and appellee Marie W. (Thompson) Garvin were divorced in October 1967. That decree provided:

“. . . that plaintiff be and she is hereby awarded exclusive use and possession of the residence of the parties. . . , and that defendant be and he is hereby ordered to make the monthly payments on the mortgage. . . as they mature; that in addition to payment on the residence, defendant be and he is hereby ordered to pay to plaintiff the sum of $200.00 per month for the care and support of the minor children and alimony to the plaintiff.”

At the time of divorce appellant had a retirement and disability income of $538.99 per month.

On August 8, 1968, one of the three girls married and appellant reduced the $200.00 per month payment to $150.00. When the second oldest girl became 18 and self-supporting, he reduced the payments to $75.00 per month. After appellee remarried and rented the residence, he ceased making the mortgage payments. At the time of trial his retirement and Veterans Disability pay had increased to $773.00. This amount being tax free.

Upon petition of appellee, the trial court found that appellant was liable for accrued child support arrearages in the amount of $3,700 and accrued mortgage payment arrearages in the amount of $2,163. The residence was ordered to be sold and the proceeds divided between the parties. Child support for the remaining child was fixed at $150 per month. For reversal appellant contends:

“I. The Court erred in awarding judgment to the appellee for arrearages in child support despite the agreement between the parties for reduction following marriage and attainment of majority and erred further in awarding judgment to appellee for the monthly mortgage indebtedness payments on the property following her remarriage and having vacated same and receiving rental sums in excess of the mortgage indebtedness due thereon. These judgments would result in an unjust enrichment to appellee and further in an inequitable financial hardship to the appellant.
II. The Court erred in awarding future child support of One Hundred Fifty Dollars ($150.00) per month to the daughter remaining at home, in view of the income and physical condition of appellant.
III. The Court erred in failing to give credit for the extensive governrhent benefits received by two of the daughters while' in college in the amount of One Hundred Seventy-Five Dollars ($175.00) per month per daughter.

There is a dispute between the parties as to the alleged agreement to reduce the child support payments to $150 upon- the marriage of the daughter. We cannot say that the charlcellor’s finding on this issue is contrary to a preponderance of the evidence.

In Cash v. Cash, 234 Ark. 603, 353 S.W. 2d 348 (1962), and Hinton v. Hinton, 211 Ark. 159, 199 S.W. 2d 591 (1947), we held that sums paid from social security payments and military allotments should be credited to child support awards. The $175 per month here given by the Veterans Administration to a child of a disabled veteran while enrolled in college does not necessarily fall within the same category — i.e., it is a specialty item available for use only under specified circumstances as distinguished from allotments and social security payments which are generally available for ordinary use. Whether the Veterans’ benefits should be credited when the matter of child support for college is specifically mentioned in a divorce decree ot at a time when a college education is the only issue is not before us.

Appellant to avoid the accrued arrearages relies upon cases from other jurisdictions such as Conklin v. Conklin, 223 Minn. 449, 27 N.W. 2d 275 (1947). However, we feel that appellant’s unilateral reduction is controlled by our own precedents such as Jerry v. Jerry, 235 Ark. 589, 361 S.W. 2d 92 (1962), wherein we said:

“From the above there appears two sufficient reasons why appellant here could not, of his own volition, reduce the $200 monthly payment due op March 1, 1961. One is that the court (and the couyt alone) had the right to change the amount of the pward for the support for the two minor children — which the court in fact did later do. The other reásbn is that the court, had the facts and circumstanced justified, could have continued the original award/for not only the two minors but also for Bobby Jeaii who had become of age. The fact that the trial court later found appellant was under no obligation,/under the circumstances, to support Bobby Jean gave appellant no right to voluntarily stop part payment. A third reason might also be added — the award of $200 was for the maintenance of (three children and appellant had no right to qonplude that $66.67 was for TírVhivtr Titian /

the tllcu LUUU pUlllL UUl, LIJ-ClL HUgcH-lUll SUCH ¿IS U1IS LUU1U be avoided by setting forth in the decree under what circumstances monthly 'cj/ild support and alimony payments terminate without the necessity of court intervention. j

The trial court/in setting the $150 per month child support for the regaining girl stated:

“. . .1 wopld reduce it further, except for the fact there is qjiite an expensive orthodontic bill here, some thousand or so dollars, which is $55.00 a month or something like that. . .”

While on the evidence presented, we cannot say that the chancellor/hb'used his discretion, we do point out that the award is on the liberal side. Furthermore, we understand from the record that once the orthodontic bill is out of the way appellant will be entitled to a substantial reduction.

Affirmed with each party to bear his own costs.

/Holt, J., not participating.


author: Conley Byrd, Justice. J. Fred Jones, Justice,

text:
    MOSELEY AUTO SALES & SERVICE and TRI-STATE INSURANCE COMPANY v. James VINES
    73-53
    497 S.W. 2d 19
    Opinion delivered July 9, 1973

      Shackleford ir Shackleford, for appellants.

      Paul K. Roberts, for appellee.
   Conley Byrd, Justice.

The issue in this Workmen’s Compensation case before the Commission was whether a back injury and a 1970 operation sustained by appellee James Vines arose out of the scope and in the course of his employment or whether it arose as a result of the pulling of a lawn mower from under his house after his employment had been terminated. The Commission found that his back injury did not arise out of the scope and in the course of his employment. The circuit court reversed. The issue on this appeal by the employer Moseley Auto Sales & Service and its carrier Tri-State Insurance Company is whether there is substantial evidence to sustain the findings of fact by the Commission.

The record shows that in 1966, appellee was paid a 10% permanent partial disability for an injury to his back. In October 1968, he underwent an operation in which the 5 th lumbar disc was removed. At that time he was awarded another 10% permanent partial disability to his back. In the fall of 1969 he started to work for Moseley Auto Sales & Service as a mechanic. He also helped in the body shop and did some work in the junk yard, operated by the same employer. On December 29, 1969, appellee admittedly received an injury when he fell on the running board of a pickup truck. He was treated at that time by Dr. Merl Crow and received Workmen’s Compensation benefits for one and six-sevenths (1 6/7) weeks. He returned to work on January 12, 1970, ahd continued to work until he was terminated February 20, 1970, because of lack of work. He did not see a doctor from the time he returned to work on January 12th until March 16th when he went to see Dr. G. F. Wynne. Thereafter, Dr. James Callaway did a laminectomy and removed the 4th lumbar disc.

Appellee describes himself as being as good as new prior to the December 29th injury. He describes the pain at that time as being in his back and left leg. At that time he was treated by Dr. Merl Crow. He states that the pain in his back got worse the two weeks that he was off and that he went back to work on January 12th because he needed the money. The pain continued thereafter, until he went to see Dr. Wynne on March 16th.

Dr. Callaway testified that when appellee visited him appellee gave a history of having been injured on December 29th with continuous sporadic pain thereafter. However, Dr. Callaway got the impression that appellee had continued to work until his pain made him unable to work. Neither did appellee tell Dr. Callaway about an incident with a lawn mower. Dr. Callaway also stated that a disc may rupture or become herniated with relatively mild traumatic experience or even with bending in an improper way. To tie a shoe could rupture a disc if it was of a predisposition to rupture. A disc deteriorates as a part of the aging process. The deterioration rate is different for different individuals. Admittedly, Dr. Calla-way’s sole basis for saying that the duration of pain was from December 1969 was the history obtained from appellee.

Dr. Merl Crow testified that he did not feel like appellee had a ruptured disc when he saw him the last of December 1969, and in January 1970.

Dr. G. F. Wynne testified that on March 16th appellee told him that he hurt his back pulling a lawn mower out from under the house and the catch caught him in the back and he was having a lot of trouble. Admittedly, appellee only went to see Dr. Wynne because he could not get in to see Dr. Crow. In answer to a hypothetical question Dr. Wynne stated that he would say that the pulling of the lawn mower caused the disc syndrome.

At the first hearing before the referee Mr. Moseley testified that when Vines returned to work in January he did the same type work that he did prior to the December 29th incident and that Vines never complained about his back hurting. At that time Mr. Moseley stated that Vines’ complaints about his back were not any different before December 29, 1969, and after January 12, 1970. After the circuit court had remanded the case to the commission to hear additional testimony, and Mr. Moseley had reduced his work force, his testimony became much more ameliorative toward Vines. For instance he then testified that after the December 29th injury, he cautioned Mr. Vines not to do the heavy lifting like he had done before.

In the record there is testimony that Mr. Moseley, between the layoff and March 16th, furnished a brace for Vines, but no such evidence was presented at the first hearing although both appellee and his wife testified.

Upon the record before us the issue is not where a preponderance of the evidence lies but only if there is substantial evidence to support the finding of the Commission. There is other evidence, not quoted, which tends to corroborate appellee’s version but as we view the record, whether you take the appellee’s version or that of the Commission, the case boils down to an issue of credibility. The Commission had the right to believe Dr. Wynne. Consequently, we cannot say that there is no substantial evidence to sustain the finding of the Commission.

For affirmance appellee suggests that Mr. Derby, the respondent insurance company’s local representative, instructed appellee to obtain medical attention. Derby not only testified that he did not recall making any such statement but showed in addition that he had no such authority. Derby was not a general agent of the carrier.

Reversed and remanded.

Harris, C.J., not participating.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case. I do agree that the question before the Commission was whether the employee Vines sustained his ruptured disc in the course of his employment or whether it resulted from pulling a lawn mower from under his house after his employment had been terminated. I find substantial evidence that his injury arose out of and in the course of his employment, and I find no substantial evidence that it arose out of pulling a lawn mower from under his house.

Mr. Vines had previously sustained an injury resulting in the removal of the fifth lumbar disc in October, 1968. On December 29, 1969, he was working as a mechanic for the appellant and was lying on his back on the floor of a pickup truck working on wires up under the dashboard of the truck. In attempting to get out of the truck his foot slipped on the floor and he injured his back as he slid from the cab of the truck to the floor of the garage. Mr. Vines was sent immediately by his employer to Dr. Crow who testified by deposition in part as follows:

“He was complaining of his back. He stated he was working on a pickup truck and he fell and hurt his back. That’s one story he told me, and then another time he said, if I remember correctly, he was under the truck and slid out and scratched his back which caused him a lot of pain.
Q. Did you find any scratches on him?
A. I found some scratches, two or three scratches.
Q. What did these scratches look like?
A. Frankly, they resembled fingernail scratches to me.
Q. Did you inquire about them?
A. No, I didn’t ask him. I knew it wouldn’t do any good.
Q. Did you make a diagnosis at that time?
A. My tentative diagnosis and possible diagnosis was a re-injury to an old herniated disc.”

Dr. Crow testified that the old herniated disc had been removed; that he did not think he diagnosed any injury to another disc; that his diagnosis was reinjury of the old back problem. He said that he saw Mr. Vines on December 29, 30, and January 5 and 6; that he believes he released him to return to work on January 12 and has not seen him since that time.

On cross-examination Dr. Crow’s attention was called to the deposition of Dr. Callaway who diagnosed a separate injury to the L-4 disc on the basis of myelograms and x-rays made after Dr. Crow’s examination, and who had actually performed surgery and removed a ruptured disc from the L-4 level. Dr. Crow was asked if he would take exception to Dr. Galloway’s findings and Dr. Crow said that he would. He said he did not think sliding out from under a truck would put that much force on Mr. Vines’ back. Dr. Crow testified that he did not feel that Mr. Vines had a ruptured disc when he last saw him. He testified, however, that if Mr. Vines did have a ruptured disc on March 17, 1970, it is possible he could have gotten it either before or after he last saw him on January 6. He admitted that a ruptured disc is very difficult to demonstrate without x-rays, and that he made no x-rays. On Dr. Crow’s medical report he submitted with his bill for services, he reported that in Mr. Vines’ own words, he said he “was working in back of pickup truck and hurt his back.”

Mr. Vines attempted to see Dr. Crow again on March 16, but Dr. Crow was not available so he went to see Dr. G. F. Wynne. As I view the record in this case, the Commission’s denial of compensation was based primarily on what Dr. Wynne said that Vines told him on this one visit. Dr. Wynne testified that he saw Mr. Vines one time on March 16, 1970, when Mr. Vines came to him complaining of pain in his back and being unable to see his regular physician. Dr. Wynne said he found muscle spasm in the back with pain radiating down one leg. He said Mr. Vines told him he wanted something for pain in his back and had been unable to see Dr. Crow. He said Mr. Vines told him about having surgery on his back in the past and Dr. Wynne then testified as follows:

“He said he hurt his back pulling on a lawn mower out from under the house and the catch caught him in the back and he was having a lot of trouble.”

This is the only evidence I find in the entire record that Mr. Vines sustained a ruptured disc in pulling a lawn mower from under his house. This doctor was further asked and he answered:

“Q. Did he discuss in any more detail about this pulling the lawn mower out from under the house?
A. No. He just said a catch caught him in the back and that he was having a lot of pain.”

Dr. Wynne testified that he based his opinion that Mr. Vines’ difficulty stemmed from pulling a lawn mower on the history given him by Mr. Vines. Dr. Wynne saw Mr. Vines the one time, apparently on March 16, 1970. On April 20, 1970, he submitted standard medical report and bill forms to the employer and insurance carrier in which he makes no reference whatever to pulling a lawn mower out from under a house. He does state in this form that the date of accident was December 29, 1969. This form report over Dr. Wynne’s signature calls for the following information: “State in patient’s own words where and how accident occurred.” This information was supplied as follows: “Laying in pickup truck and slipped out and hurt back.” Furthermore in this report the following question is asked:

“Is accident above referred to the only cause of patient’s condition?”

and the answer is written “Yes.” There was ample space on the report for any “contributing causes,” but this space was left blank and nothing about pulling a lawn mower was inserted when Dr. Wynne signed this report. Along with this surgeon’s report form was included a “surgeon’s final report and bill” form also signed by Dr. Wynne in which he listed the name of the employer as James Ed Moseley, the name of the injured as Mr. James Vines, the date of injury as 12-29-69. It was stated on this form that first aid was rendered by Dr. Merle Crow; that Dr. Wynne saw Mr. Vines on March 16, 1970; that his diagnosis was “lumbo sacral back strain,” and his total expenses for medical aid was $12.83.

I am totally unimpressed by Dr. Wynne’s attempt to explain the glaring discrepancy in the history of the accident as he remembered Mr. Vines relating it to him, and the history as written on the medical report and bill for services. He said his nurse took the history as written on the report and it all refers to the previous injury and surgery. There was no previous injury and surgery except the one from which Vines had fully recovered before he ever went to work for Moseley. It seems obvious to me, that if Dr. Wynne only had a history that Vines injured his back while pulling a lawn mower from under a house and he rendered his diagnosis and treatment on that basis, the doctor would have rendered his report and bill for services to Mr. Vines, expecially since he does state in his surgeon’s report that there had been no work for Mr. Vines on his job since February and that the patient engaged his services. I can only conclude that Dr. Wynne relied on his memory and failed to read the history of the accident his nurse took from Mr. Vines on the one trip to the doctor’s office. I would certainly be unwilling to conclude that Dr. Wynne took one history for the purpose of collecting for his services from Vines’ employer and another, history for some other purpose. I am forced to the conclusion, however, that Dr. Wynne failed to read the medical reports when he signed them or he was confused as to what Mr. Vines did tell him.

Dr. Wynne concluded his testimony by saying that since Mr. Vines had previously had a disc removed from L-5 level, he would assume that L-4 was not damaged at that time. He said it could be assumed that either of the incidents of falling from the truck, or removing the lawn mower from under the house, could have caused the reptured disc but that in the light of the acute state of pain Mr. Vines was in on the one occasion he saw him, he would say it was pulling the lawn mower from under the house that caused the disc syndrome.

Dr. Callaway testified that he saw Mr. Vines on March 17, 1970; that Mr. Vines told him he had been having trouble with his back off and on ever since his injury in December and had finally concluded that he was going to have to have something done for it. He testified that he removed the fifth lumbar disc back in October, 1968, and subsequently, following the injury in December, 1969, he confirmed a disc lesion at L-4 by x-ray and myelogram and removed the ruptured fourth lumbar disc. Dr. Callaway said that if Mr. Vines told him anything about an incident with a lawn mower, he made no record of it. He testified that an intervertebral disc disposed to rupture might become herniated by the relative mild experience, even with bending over to tie a shoe. Dr. Callaway testified in part as follows:

“A. He merely said he had pain in the back dating from the time of the accident, which decreased with activity [sic] and increased with activity, aggravated by bending and lifting and reduced by lying down. Sitting aggravated it. Coughing or sneezing aggravated it.
Q. This was during the entire period of December of ‘69, through March 17, 1970?
A. Well, except for the notable exceptions of when he took off for two weeks and was unable to work, and then worked some. Now, I’m a little confused as to his work history since you have intimated that all was not right in the relation of employee and his supervisor. I know nothing about that.
# * *
A. It’s not incompatible with a history of back pain, that a person have pain, take it easy, rest, the pain will subside. He will be able to do more, and as he does more, he will aggravate his symptoms. It’s a cycle thing. And, it’s possible he was able to work at times and other times not with the same difficulty.”

Dr. Callaway then stated:

“A. Anything is possible. We many times see patients several months after they have been injured. It’s not unusual for us to see someone that’s been six months since it was injured and has been treated by his private physician; and he finally decided the condition would not subside and usually sends him for treatment to us. This patient may have come directly to me since he had been here before. Also, having previous experience with back difficulty, he knows that time cures a good deal of back condition, and perhaps he decided to wait a while to find out if it would. I don’t know. It’s certainly possible he could have had another injury, he could have had ten.”

Mr. Vines testified that he went to work for the appellant, Moseley Auto Sales & Service, in September, 1969, as a mechanic and helped with bodywork. He said he missed two weeks work when he injured his back on December 29. He said that at the time of his injury he was working on instrument lights under the dashboard of a truck and as he started to get out of the truck, his left foot slipped on the floor and he fell back across the running board of the truck. He said he experienced immediate pain in his back and left leg; that he was unable to move and that fellow-employees, Bobby Graves, Mack Anderson and his employer, Mr. Moseley, assisted him to the front of the building and Mr. Moseley directed that he be taken to Dr. Crow. He said that Bobby Graves took him to Dr. Crow; that Dr. Crow gave him a shot for pain, examined him, and gave him another shot and told him to go home. He said that the shots relieved the pain slightly and that he was taken home. He said that he returned to Dr. Crow two or three times; that his back continued to get worse but he needed to work and did go back to work after about two weeks. He said he continued on the job until the latter part of February when Mr. Moseley told him that business had become slack and that he should just take off from work for awhile and that when things picked up he would be called back. He said his back continued to hurt and seemed to continue to get worse; that he told Mr. Moseley that it looked like he was not getting any better but was getting worse. He said that while he was home his wife kept insisting that he go to a specialist but that he put off doing so in the hope that his back would get better. He said he continued to take BC powder for pain and tablets that Dr. Crow had prescribed for him. He said he took this medication during the time he was back at work. He said that around March 16 he called for Mr. Moseley and found him out of town, so he told his secretary that he had to have something done for his back. He said he then went to Dr. Wynne who gave him a shot and a prescription for drugs. He said that the day before he went to Dr. Wynne, his wife suggested that the lawn needed mowing and as to the lawn mower incident, Mr. Vines testified as follows:

“Well, I pulled the lawn mower out from under the house, and her and my son was standing there, which she was going to mow the lawn, and I told him — I was pulling it out, and I said, ‘Now, son, take it and wash it out and clean all the grass out from under it and make sure you know it is safe.’
Q. We have takein Doctor Wynne’s testimony in his deposition, in which he stated that you had told him that you hurt your back or your back being hurting after pulling the lawn mower out.
A. Well, I’ll say this: When I pulled the lawn mower out from under the house, I knew then that I couldn’t mow it, and I went in the house and sat down. My wife come in the house and wanted to know what I was sitting down there for, and I said, ‘Well, my back is hurting me,’ and she said, ‘Well, do you want me to go get you something.’
Q. Had your back been hurting you before you pulled the lawn mower out?
A. Yeah, real bad several times.
Q. Had you ever mowed the lawn or pulled the lawn mower around before you got hurt?
A. In twenty years of marriage, how many times—
Q. I assume quite a few times.
A. Yeah.
Q. Did that ever hurt your back?
A. No.
Q. Was your back hurting in the same place or a different place after you pulled out the lawn mower than before?
A. Well, my back and my left leg constantly hurt me from the time I fell, and it never did get better. It kept getting worse.
Q. Is that where you were hurting after pulling the lawn mower out?
A. Exactly the same way, yes, sir.
Q. Just more severe?
A. Sir?
Q. Just hurting you a little worse?
A. Well, no, sir, not no worse. I just give up then and went to the doctor.
Q. How many times did you see Doctor Wynne?
A. Once, I believe.”

Mr. Vines testified that after he was seen by Dr. Wynne he next went to Dr. Callaway several times; that Dr. Callaway finally performed the operation on his back and that he was still under the care to Dr. Callaway. He said he had no trouble with his back following his previous operation in 1968 up until his injury while working for Moseley Auto Sales & Service.

Mrs. Vines corroborated Mr. Vines’ testimony as to his complaints of constant pain following his injury while working for Moseley and as to the lawn mower incident, she testified as follows:

“Q. Were you present the day he pulled the mower out from under the house?
A. Yes.
Q. Did he at that time complain of any sudden pain?
A. No.
Q. To his back?
A. No.
Q. Was he hurting before he pulled it out, as far as you know?
A. Yes.
Q. What happened after he pulled it out then, as far as you know, the conversation that took place that caused him to go to the doctor?
A. Well, he said he wasn’t getting any better, that he was just keeping on getting worse, and he just had to get something done, because he couldn’t work the way he was hurting, and, so, I carried him to Doctor Wynne.
Q. Do you remember about how long after that he went to Doctor Callaway?
A. I believe about three days.
Q. Is it your testimony then that he didn’t complain when he pulled the lawn mower out of any sharp pain?
A. No.”

Mr. Vines’ version of the accident on December 29, 1969, was fully corroborated by his employer Mr. Moseley and by his fellow-employees, J. D. Davis and Bobby Graves.

This case was heard three times before two Referees on remand by the circuit court and Mr. Vines testified twice. The second time he testified he was reminded of Dr. Wynne’s testimony concerning the lawn mower and he testified as follows:

“Q. ... I want you to tell me and tell the Referee what you told Doctor Wynne concerning your activities on the day that you went to see him. Tell me the truth about that.
A. I went to see Doctor Wynne. My wife carried me up there, and Doctor Wynne asked me, said, ‘James, what have you been doing today?’ When I told him, you know my back was hurting me, and I told him that I had had previous back trouble and an opera-don, and I had re-hurt my back, and that is when he asked me, said, ‘What have you been doing?’ and I said, ‘Nothing, laying around the house on a couch.’ I said, ‘Yeah, I did, I went out there and pulled a lawn mower out from under the eave of the house and was going to clean it up, and my wife was standing right there with me, and I squatted down, and I told her, I said, ‘My back is hurting me so bad I just can’t do nothing. I’m going to have to give up and go to the doctor anyhow,’ and she said, ‘Well, I’ve been trying to get you to for a month.’
Q. Are you telling the Referee now that this lawn mower was under the eave of the house?
A. Yes, sir.
Q. Was it just sitting there under the eave of the house?
A. Yes, sir.
Q. What did you do, did you pick it up or did you pull it out or what did you do?
A. No, I taken one hand and pulled the lawn mower out, and I had a bucket of gas there and a rag. I was going to clean it out. It had some dust and dirt sitting there all winter, and I was going to clean it up.
Q. Did you strain yourself in any way pulling this little old lawn mower out from under there?
A. No, sir.
Q. Did you hurt your back in fooling with that lawn mower?
A. No, sir.
Q. Did you pick the lawn mower up?
A. No, sir.
Q. You stooped down, you squatted down beside the lawn mower in order to take this rag and wipe off some oil or grease or something like that on it, is that what you did?
A. Yes, sir. Before I even touched the lawn mower, a week before that I’d called Mr. Moseley about my back hurting me real bad. I called out there and talked to Judy and he was in Indiana, and it was hurting me real bad then. That was before I ever even touched the lawn mower.
Q. Then you did not hurt your back with the lawn mower on the day you went to Doctor Wynne?
A. No, sir.
Q. Were you hurting all during the day of that day?
A. Yes, sir, and for several days before that.
Q. What time of day was it you pulled this lawn mower out from under there?
A. Somewhere around four o’clock.
# # #
Q. I want you to answer me this question now: Did you tell Doctor Wynne that you hurt your back pulling a lawn mower out from under the porch?
A. No, sir. The only time the lawn mower was mentioned to Doctor Wynne was he asked me what I had been doing that day, and I told him I had been laying around the house there, that my back had been hurting me for a long time, and I told him, I said, ‘Yeah, if you call this doing something, I pulled a lawn mower out from under the eaves of the house.”

Mrs. Vines testified again before the Referee and she again corroborated the testimony of Mr. Vines as to the lawn mower incident. Mr. Moseley again testified and again corroborated the previous testimony as to the accident and injury on December 29, 1969. At this hearing Mr. Moseley also testified that while he was out of town in the first part of March, about a week after he had laid Mr. Vines off for lack of work, that Vines called and requested an advancement for the purchase of a back brace, and that Vines received the money for that item. He said that he had a conversation with Mr. Vines about two weeks or 20 days after he was laid off, at which time Mr. Vines told him he was needing some attention and needed to be hospitalized for a specialists to check his back. He again said that when he met his compensation insurance agent Mr. Derby in the Warren Bank, Mr. Derby told him to advise Vines to go ahead to the hospital and get a specialist and that Mr. Derby would start the paper work on the matter. He said that Mr. Derby just said to go ahead and get medical attention. He said that he then relayed this information to Vines and that Vines then went to see Dr. Callaway who performed his operation.

At the final hearing before the Referee Mrs. Judy Moseley the wife of the employer, also testified. She said she worked in the office for Mr. Moseley at the time Mr. Vines sustained his back injury; that she had charge of the payroll and was working in the office after Mr. Vines came back to work following his injury. She said that approximately the first week in March Mr. Vines called her by phone and requested money for a back brace. She said that Mr. Moseley was out of town and that she advised Vines to come to the office and that she gave him the money he requested from the cash register. She then testified as follows:

“Q. Do you recall you or your husband either one buying Vines any medicine or paying for pain pills?
A. Yes, sir.
Q. Tell about that, please.
A. I don’t know if the medicine was called in or if he went to the doctor. All I recall is we got a bill for it, and we did pay for the medicine, the prescription.
Q. Paid that from your own personal funds?
A. Yes, sir.
Q. Did you have any conversation with Mr. Vines concerning him having to go to the hospital?
A. Well, yes, I have talked to James on the phone and maybe — I say ‘maybe’ he did come out once when James Ed was gone and talked about his back, that he had to have some help as far as some hospitalization or a doctor, I did.
Q. That was after the layoff, wasn’t it?
A. Yes, sir.
Q. And did James tell you he had to go into the hospital?
A. Said he needed to.”

On cross-examination Mrs. Moseley testified that she does the bookkeeping in the office for her husband.

The first hearing in this casé was conducted on June 19, 1970, before Referee McClendon who denied the claim. No additional evidence was heard by the full Commission on review and the full Commission also denied the claim. On appeal to the circuit court the case was remanded to the Compensation Commission for rehearing. The Compensation Commission referred the case to Referee Robert J. Donovan for additional hearing but limited the hearing to the testimony of fellow-employees J. D. Davis and Bobby Graves. The Referee again denied compensation and the Commission again also denied compensation. The case was again remanded to the Commission by the circuit court for rehearing with a holding that the Commission had erred in limiting the testimony to that of Davis and Graves. The case was again referred to Referee McClendon at which time Mr. and Mrs. Vines and Mr. and Mrs. Moseley testified as above set out. The Referee again denied the claim as did the full Commission on the record. The Commission concluded its opinion on this occasion as follows-:

“After careful review of the entire record . . . the Commission further finds that the additional testimony presented by claimant has failed, in light of prior evidence, to negate the occurrence of injury subsequent to claimant’s employment with respondent-employer, Moseley Auto Sales and Service.”

Upon appeal to the circuit court, the court found that there was no substantial evidence to warrant the Commission’s denial of compensation benefits to Mr. Vines and the decision of the Commission was reversed and the case was remanded with instructions to the Commission to award compensation benefits as provided by law.

I agree with the trial court that there is no substantial evidence under which the Commission denied compensation benefits to Mr. Vines in this case. It is my view that if the evidence we have in this case constitutes substantial evidence, to sustain the Commission, this court is working the “substantial evidence rule” overtime. Under such evidence this court would be required to sustain the denial of award for compensation for a ruptured disc sustained in any kind of accidental injury where the employee suffered constant but recurring episodes of excruciating pain, the last of which occurred when he stoops or squats down to service a lawn mower or bends over to tie a shoe. I also note that no member of the Commission ever saw Vines or any of the witnesses in this case in so far as the record discloses. It rendered its decision on the record of evidence taken at different times before two separate Referees.

I would affirm the trial judge in this case.


author: Frank Holt, Justice.

text:
    Larry Darnell MCCLENDON v. STATE of Arkansas
    CR 73-68
    496 S.W. 2d 428
    Opinion delivered July 9, 1973

      Howard, Howard ir Howard, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged by information with robbery involving the theft of a purse. The trial court, sitting as a jury, found him guilty of grand larceny. Of course, larceny is included in the crime of robbery. Scifres v. State, 228 Ark. 486, 308 S.W. 2d 815 (1958). Afterwards the trial court heard testimony and determined appellant had committed two prior criminal offenses. Appellant was then sentenced to 10 years imprisonment in the state penitentiary. For reversal he contends, through his court appointed counsel, that the trial court erred in permitting the state to further examine the prosecuting witness as to the value of the stolen property after it had rested its case. We find no error.

After the state rested its case, the court allowed it to reopen and adduce, through the prosecuting witness, evidence that her purse and its contents approximated $75 in value or in excess of $35, thus placing the crime in the grand larceny category. The procedure was permissible. Ark. Stat. Ann. § 43-2114 (1964 Repl.) provides that the court may allow for good reason, in furtherance of justice, the parties to offer evidence upon the original case after having rested. “We have likewise so held numerous times, stating that it is within the trial court’s sound discretion and furtherance of justice, to permit the state to present witnesses after resting, where circumstances are such as to not prejudice defendant through surprise or otherwise when the disadvantage cannot be overcome.” Rochester v. State, 250 Ark. 758, 467 S.W. 2d 182 (1971). See, also, Bland v. State, 251 Ark. 23, 470 S.W. 2d 592 (1971), where we held that the trial court properly exercised its discretion in permitting the state to reopen its case to show the value of the property stolen exceeded $35. Appellant here recognizes that it is within the discretion of the trial court to permit a case to be reopened and additional evidence adduced. However, he asserts the court abused its discretion inasmuch as the additional testimony was a surprise and disadvantageous to him. It is difficult to perceive how the testimony complained of was a surprise or prejudicial when it could have been presented in the state’s original case. As previously indicated, larceny is included in the crime of robbery. Furthermore, upon the state’s initial proof, evidence was adduced that appellant admitted the purse contained approximately $36 in cash before dividing it with his two confederates. In these circumstances, finding no abuse of discretion or error prejudicial to appellant, we affirm the judgment of the trial court.

Affirmed.