author: J. Feed Jones, Justice.

text:
    Walter BROOKS and Adrian L. FERGUSON v. ARKANSAS-BEST FREIGHT SYSTEM, INC., Employer
    5-4946
    444 S. W. 2d 246
    Opinion delivered September 2, 1969

      Shaw, Jones, & Shaw, for appellants.

      Harper, Young & Smith, for appellee.
   J. Feed Jones, Justice.

This is a workmen’s compensation case and the facts are not in issue. The appellants, Brooks and Ferguson, were claimant employees under the Arkansas Workmen’s Compensation Law. Both of them sustained compensable back injuries resulting in permanent total disability and they both filed petitions to the Workmen’s Compensation Commission for lump sum settlements. Their petitions were granted by the Commission and the full amounts payable for permanent total disability were made to them. The petitions were filed and granted under authority of Ark. Stat. Ann. § 81-1319 (k) (Repl. 1960) which is as follows :

“Whenever the Commission determines that it is for the best interest of the parties entitled to compensation, and after due notice to all parties in interest of a hearing, the liability of the employer for compensation may be discharged by the payment of a lump sum equal to the present value of all future payments of compensation computed at four (4%) per centum discount, compounded annually. The probability of the death of the injured employee or other persons entitled to compensation before the expiration of the period during which they are entitled to compensation shall, in the absence of special circumstances making such course improper, be determined in accordance with the American Experience Table of Mortality. The probability of the happening of any other contingency affecting the amount or duration of compensation shall be disregarded, except the possibility of the remarriage of the widow which shall be determined in accordance with the Danish Annuity and Dutch Remarriage Table.”

After receipt of the lump sum payments, Brooks and Ferguson required additional medication for the treatment of their ilijuries, and claims were filed for the medical expenses accruing both before and after the lump sum payments but not specifically included therein. The employer voluntarily paid the medical bills accruing prior to the lump sum payments, but the claims for additional medical benefits accruing subsequent to the lump sum awards were controverted on the theory that the employer had discharged its entire liability and fully settled all claims, both present and future, by the payment of the lump sums under the award.

The Commission awarded the additional medical payments and on appeal to the Sebastian County Circuit Court the cases were consolidated and the awards of the Commission were reversed, the circuit court holding that the employer had discharged its total liability under the statute, by the payment of the lump sum awards.

Brooks and Ferguson have appealed to this court on the single question of law as to whether the payment of compensation for permanent disability in one lump sum under the Workmen’s Compensation Law of Arkansas discharges the employer or his compensation insurance carrier from additional liability for medical services and treatment occurring in the future.

Under the “definitions” section of the Workmen’s Compensation Law, Ark. Stat. Ann. § 81-1302, subsection (i) (Repl. 1960), is found the following:

“ ‘Compensation’ means the money allowance payable to the employee or to his dependents, and includes the allowances provided for in section 11 [§ 81-1311,] and funeral expense.”

Ark. Stat. Ann. § 81-1311 (Repl. 1960), above referred to, reads in part as follows:

“Medical and hospital services and supplies. The employer shall promptly provide for an injured employee such medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may be necessary during -the period of six [6] months after the injury, or for such time in excess thereof as the Commission, in its discretion, may require. If the employer fails to provide the services or things mentioned in the foregoing sentence within a reasonable time after knowledge of the injury, the Commission may direct that the injured employee obtain such service or thing at the expense of the employer, and any emergency treatment afforded the injured employee shall be at the expense of the employer.”

Thus, it is seen that medical services and funeral expenses, as well as money allowance payable to the employee, are included in the broad general statutory definition of “compensation.” In the context of benefits to the employee which are to be secured by the employer under the statute, Ark. Stat. Ann. § 81-1305 (Bepl. 1960), compensation payable to the employee for disability and the amounts payable in medical expenses are in the same category, but here the analogy ends.

Except as set out in the definition, the term “compensation,” as used throughout the statute, obviously refers to money benefits paid to the injured employee for disability. As examples,

Ark. Stat. Ann. § 81-1310 (Bepl. 1960):

“Compensation to the injured employee shall not be allowed for the first seven [7] days’ disability . . . compensation shall commence with the ninth [9th] day of disability . . .
Compensation payable to an injured emplayee for disability shall not exceed . . .
Compensation payable to the dependents for the death of an employee shall not exceed ...” (Emphasis supplied.)

Ark. Stat. Ann. § 81-1312 (Bepl. 1960):

“Compensation shall be computed on the average weekly wage ...” (Emphasis supplied.)

Ark. Stat. Ann. § 81-1313 (Repl. I960) provides;

“Compensation for disability. The money allowance payable to an injured employee for disability shall be as follows:
# # #
(c) Scheduled permanent injuries: An employee who sustains a permanent injury scheduled in this subsection shall receive, in addition to compensation for the healing period, sixty-five per centum [65%] of his average weekly wage for that period of time set out in the following schedule:
Jfc , ¶* 1? IP '
(d) Other cases: A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole, which shall have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.* * *” (Emphasis supplied.)

Ark. Stat. Ann. § 81-1319 (Repl. 1960) provides:

“(a) Compensation shall be paid directly to the person entitled thereto without an award, except in those cases where liability has been controverted by the employer. If the compensation beneficiary is a mental incompetent or a minor of tender years or immature judgment, the Commission may in the exercise of its discretion direct that payment shall be made to a legally appointed guardian of the estate of such incompetent or minor.
(b) The first instalment of compensation shall become due on the fifteenth (15th) day after the employer has notice of the injury or death, as provided in section 17 [§ 81-1317,] on which date all compensation then accrued shall be paid. Thereafter compensation shall be paid every two [2] weeks except where the Commission directs that instalment payments be made at other periods.
(c) Upon making’ the first payment and upon suspension of payment of compensation the employer shall notify the Commission of such fact on a form prescribed by the Commission.
# # # -
(e) If any instalment of compensation payable without an award is not paid within fifteen (15) days after it becomes due, as provided in subsection (b), there shall be added to such unpaid" instalment an amount equal to six (6) per centum thereof .. . ! '
* # #
(g) Compensation shall bear interest at the legal rate from the day an award is made by either a Referee or the full Workmen’s Compensation Commission, on all accrued and unpaid compensation.
(h) Within thirty (30) days after the final payment of compensation has been made, the employer shall send to the Commission . . .
(i) The Commission may upon its own initiative at any time where compensation payments are being made without an award, and shall in any case where the right to compensation has been controverted or where payments of compensation have been suspended, or where an employer seeks to" suspend payments made under an award, or on application of an interested party, make such inyestigation, cause such medical examination to be made, hold such hearings, and take such further action as the Commission deems proper for the protection of the rights of all parties.
(j) The Commission may require any employer to make a deposit or bond with the Commission to secure the prompt and convenient payment of such compensation, and payments therefrom shall be made upon order of the Commission.” (Emphasis supplied.)

Having in mind the three divisions, or categories, of “compensation” as money allowance for disability, medical services and funeral expenses, we now return to tlie lump sum awards in these cases. There is no question that the amounts of the lump sum awards were calculated only on the money allowance for disability due the claimants for their 100% permanent disabilities. The award to Brooks concludes as follows;

“Therefore, upon payment by the respondents of $3,962.54 to the claimant, Walter Brooks, and upon payment to Mr. E. C. Gilbreath, attorney for claimant, the maximum attorney’s fee as provided by the Arkansas Workmen’s Compensation Act, the liability of the respondents for compensation for 100% permanent disability to the body as a whole is discharged. ’ ’

It is obvious to us from the wording of the statute, that there are two kinds of compensation benefits to which an injured employee may be entitled and which the employer is obligated to secure to the employee. (1) The money allowance payable to an injured employee for disability (§ 81-1313), and (2) medical and hospital services and supplies (§ 81-1311).

Funeral expenses are also specifically included in the definition of compensation, but Ark. Stat. Ann. § 81-1315 (a) and (b) provide:

“If death results from the injury the employer shall pay the reasonable funeral expenses, not exceeding the sum of two hundred and fifty ($250.00) dollars.
If death does not result within one [1] year from the date of the accident, or within the first three [3] years of the period for compensation payments fixed by the compensation order, a rebuttable presumption shall arise that such death did not result from the injury.”

As appellee would have us interpret the statute, funeral expenses would not be available under the statute where death results from injury and when the deceased employee had been paid any of the compensation due him in one lump sum. We cannot believe that such results were the intent of the statute.

The appellants contend that the appellee can only discharge and settle both its present and future liability for all compensation benefits under a joint petition as provided in Ark. Stat. Ann. § 81-1319 (1) (Repl. 1960), as follows:

“(1) Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties, the Commission shall hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement should be had. If the Commission decides it is for the best interests of the claimant that a final award be made, it may order such an award that shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall deny the petition, such denial shall be without prejudice to either party. No appeal shall lie from an order or award allowing or denying a joint petition.”

We agree with the appellants. As additional evidence of the correctness of their contention, Ark. Stat. Ann. § 81-1326 (Repl. 1960) provides:

“Except where a joint petition settlement has been approved the Commission may at any time within six [6] months of termination of the compensation period fixed in the original compensation order or award, upon its own motion or upon the application of any party in interest, on the ground of a change in physical condition or upon proof of erroneous wage rate, review any compensation order, award or decision, and upon such review may make •an order or award terminating, continuing, decreasing or increasing for the future the compensation previously awarded, subject to the maximum limits provided for in this act [§§ 81-1301 — 81-1349]. Such review and subsequent order or award shall be made in accordance with the procedure prescribed in section 12 [§ 81-1323] hereof. No such review shall affect any compensation paid pursuant to a prior order or award. The Commission may at any time correct any clerical error in any compensation order or award.”

No compensation is payable to the employee for the first week of his disability unless he is disabled for as long as four weeks under § 81-1310 (a), supra, but he is entitled to prompt medical treatment under § 81-1311, supra.

It is obvious to us, and we therefore hold, that the liability of the employer that may be discharged by ,a lump sum payment under § 81-1319 (k), supra, can only relate to liability for such future payments of compensation as are capable of determination and reduction to present value, and that a lump sum settlement does only discharge the employer’s liability for such compensation as is included in the lump sum award. We do not say that compensation in the form of accrued but unpaid medical expenses cannot be included in a lump sum settlement so as to discharge the employer from liability therefor, but we do say that was not done in the cases before us.

We find no difficulty in concluding that the liability of an employer must first be determined before the value of future payments of compensation can be ascertained and reduced to present value for the purposes of a lump sum settlement, and we do not strain the liberal construction doctrine in holding that a lump sum settlement does not discharge the employer from liability for the payment of compensation not susceptible of determination and not contemplated nor included in the lump sum settlement.

The judgment of the circuit court is reversed.


source: Caselaw Access Project

author: George Eose Smith, Justice.

license: Public Domain

text:
    H. K. FAULKINBURY and Faulkinbury Food Store Inc. v. UNITED STATES FIRE INS. CO.
    5-4953
    444 S. W. 2d 254
    Opinion delivered September 8, 1969

      Mobley, Bulloch & Harris and Smith, Sanderson, Stroud & McClerhin, for appellants.

      Ned A. Stewart Jr. and Arnold & Arnold, for appellee.
   George Eose Smith, Justice.

In 1966 the appellants, H. K. Faulkinbury and a family corporation, were operating- a grocery store in Texarkana. Their public liability policy with the appellee included insurance against damage suits for false arrest. The question here is whether a suit which the insureds settled for $5,000 was actually an action for false arrest within the coverage of the policy. The trial court held that it was not and accordingly directed a verdict for the insurance company in this suit brought by the insureds to recover their outlay, with penalty and attorneys’ fees.

We agree with the trial court. On March 26, 1966, Faulkinbury’s 17-year-old daughter Sharon drove to the parking lot adjacent to her father’s store. She testified that as she was getting out of her ear a young man in a car next to hers made an insulting remark to her. She ran into the store and reported the incident to her father. Faulkinbury concealed a pistol in his shirt and went out to the parking- lot to investigate the incident.

According to Faulkinbury and his son, a car occupied by several youths was just beginning to pull out of the lot. We quote that part of Faulkinbury’s testimony that is pertinent to the controlling issue:

A. ... I stopped them — hollered for them to stop, and they stopped.
# * #
A. ... I went on out and stopped them, and asked them what they were doing. They said, well, they weren’t doing anything, and I said, “Did you say something to this girl standing in the door?” and they said, “No, sir, we didn’t say anything.” They said, “Call her out and we will prove it to you,” so I turned and motioned for Sharon to come out. I thought, you know, possibly they might be the wrong ones, or something. Well, when I did, he pulled his car in gear and started easing up, and I told him, “Well now, just wait a minute and let’s see what this is all about,” and so he used some pretty vile language at me, and started moving up, and I told him two or three times to stop, and he kept creeping off from me, and . . .
Q. Where were you, now, Mr. Faulkinbury, at this time?
A. I was leaning inside the car — had my arm over inside the car, holding on to the car, and him gradually trying to drive off. I asked him two or three times to stop, and he just kept getting a little faster. I told him he was going to have to stay there until I found out what was going on; and he cursed me a few more times and started — he really jerked me, you know, as he accelerated faster. After telling him to stop two or three times, I pulled my pistol out and told him I meant for him to stop, and he cussed me again and started on, so I shot him. I shot twice into that car.
# # #
Q. All right. Mr. Faulkinbury, what happened right after you fired?
A. He just showered down on the gas, and more or less jumped the car out into the street, and went across the street into a little side street over there, and I could see that they were changing drivers, and they went on, and I went back in the store and called the police and reported what happened.

Later on the driver of the car, whose legs were hit by the shots, brought suit for his personal injuries, alleging assault and battery and false arrest. The appellee denied its liability but offered to defend the suit at its own expense. The appellants, as we have said, settled the case for $5,000 and brought this action against their insurer.

Under the terms of the policy the appellants can recover only if Faulkinbury’s conduct amounted to a false arrest of the injured youth. We think it plain that it did not. An essential element of the tort of false arrest, which is basically the same wrong as false impris- , onment, is the unlawful detention of the plaintiff against his will. “. . . [I]f he agrees of his own free choice to surrender his freedom of motion, . . . then there is no imprisonment. ... It is not necessary that the defendant have a warrant, or even that he be an officer, so long as he asserts the legal power to detain the plaintiff, and the plaintiff believes that the authority exists, and yields to it against his will.” Prosser on Torts, § 12 (3d ed. 1964); see also Ark. Stat. Ann. § 41-1601 (Repl. 1964).

Giving the appellants’ testimony its most favorable construction, we find no substantial proof of a false arrest. During the occurrence Faulkinbury made no statement even suggesting that he was attempting to make a citizen’s arrest. Although the group of young men in the car at first stopped, they did so voluntarily rather than under any semblance of compulsion. Thereafter their freedom of movement was wholly uninhibited. They made their departure despite Faulkinbury’s demands that they stop and despite his eventual resort to gunfire in a vain effort to bring the car to a halt. Upon the undisputed proof the trial court was right in holding that the injured driver’s asserted cause of action against the appellants was for the tort of assault and battery rather than for that of false arrest. It was therefore not within the coverage of the policy.

Affirmed.


author: Lyle Brown, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Margaret Warren TOFFELMIRE
    5-4959
    444 S. W. 2d 241
    Opinion delivered September 8, 1969

      Thomas R. Keys and Kenneth R. Rrock, for appellant.

      Mobley, Rullock & Harris, for appellee.
   Lyle Brown, Justice.

The home of appellee, Margaret W. Toffelmire, is located in downtown Dardanelle and it is conceded that the highest and best use for her property at the time of taking by the State Highway Commission was for commercial purposes. The Commission acquired by eminent domain a portion of the front yard which moved the right of way line to a point close to the residence. The construction program was necessary to relocate the approaches of State Highway 7 to the new Dardanelle Bridge, which is a short distance from the Toffelmire home. The jury determined just compensation to be $30,000. On appeal the Highway Commission contends that the court erred in not striking the value testimony of three.of the landowner’s witnesses. The asserted contention is well taken and calls for reversal.

Witnesses Toffelmire, Ross, and Pledger committed the same error. They all testified that the highest and best use of the entire property at the time of the taking was commercial. Yet in arriving at just compensation they intermingled residential and commercial values. One example will suffice, being the figures of witness Pledger:

Before Values: Land (commercial) $40,964; Improvements (residential) $28,153. After Values: Land (commercial) $12,100; Improvements (commercial) $7,-850.

Clearly, in a commercial use evaluation, the value of the improvements, both before and after the taking, should have been based on commercial worth. Our case of Arkansas State Highway Comm’n v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495 (1967), sets out the rule. There we said “a verdict rendered by a jury which was partially based on testimony relating to commercial value of the land, and partially based on testimony relating to the land’s value for residential purposes, would not be proper ...”

The only other expert witness for the landowner was Merle Lemley and the Commission asks us to hold as a matter of law that his testimony was not based on substantial evidence. In view of the probability of another trial we should comment on the point. That testimony was so inherently weak as to make it insubstantial. For example, the witness valued the land at $5.00 per square foot without knowledge of any comparable sale, just his asserted general experience; in fact he testified that he saw no merit in the use of comparables; he admittedly did not know the meaning of a ‘ controlled-access facility”; and he insisted that the condemnor had permanently deprived Mrs. Toffelmire of frontage access to the highway, in which impression he was in error. Finally, in fixing the value before the taking, he placed no value on the residence, whereas he did give it a value after the taking.

If we offered a remittitur, which we are asked to do, we would need fix a figure which we feel certain the State should pay, and which the landowner is clearly entitled to recover. There is one element of damage on which there is an absence of evidence. The highway department has constructed a retaining wall along the entire front of the Toffelmire property with no allowance for ingress and egress. The department assumed Mrs. Toffelmire would continue to use the property for residential purposes and in that situation the wall would be of advantage to her. (The entrance used by her is on the side of the house.) In fixing damages for commercial use we have to say she has no frontage entrance and exit because that is in keeping with the plans and specifications. The highway department argues, and correctly so, that Mrs. Toffelmire can obtain a permit for ingress and egress since the area is not a controlled access facility. The type of access is in the discretion of the department and the bureau of public roads; so it would be entirely speculative as to what type of access would be granted. Nor does the present record afford us any estimate of damages peculiarly applicable to the retaining wall.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Orville WHITE et al v. TRAVELERS INDEMNITY INSURANCE COMPANY
    5-4942
    444 S. W. 2d 242
    Opinion delivered September 8, 1969

      Carl M. Harness, for appellants.

      Crouch, Blair, Gypert & Waters, for appellee.
   John A. Fogleman, Justice.

All of the appellants in this case were engaged in the production of grapes during the year 1967 and prior years. They appeal from a decree denying them reformation of policies of insuranee issued by appellee on their 1967 crops. This decree also denied appellants any recovery over and above the amounts paid by appellee on their claims prior to the institution of the present action. While appellants urge five points for reversal, we find it necessary to discuss only one of them, in view of our finding that the appellants completely released appellee from any liability on their respective claims by accepting the amounts which appellee contended were due under the policies of insurance.

The policies were issued through Walker Brothers. Inc., an insurance agency representing Travelers Indemnity Insurance Company and approximately twelve other companies. This agency had obtained hail insurance policies for the appellees in prior years. The policies previously issued had not provided full coverage on the grape crops until the grapes had become one-eighth of an inch in diameter. Walker began providing coverage under the policies issued by appellee during the year of 1966. The following clauses were contained in the application for insurance:

“Beginning 24 hours, except as may be provided in the policy, from the hour and date this application is last signed by both the applicant and the Company’s Agent, the Company shall assume liability for loss by hail and additional perils, if any, named in the policy.
* # *
The foregoing binder is subject to the representations and provisions of this application, to the conditions of the CHIAA Standard Crop-Hail Policy, and to the provisions of any endorsement attached thereto. A copy of this application, or abstract thereof, and of any endorsement shall be attached to the policy if issued by the Company and together with the policy shall constitute the insurance contract; the original application will be on file with the Company.”

Attached to and constituting a part of both the appliction and the policy of insurance in each case, there was a sheet entitled “TREE FRUITS, GRAPES, BUSH FRUITS AN.D BERRIES.” Among the clauses set out on this sheet under the heading “Special Provisions” was the following, pertaining to grapes:

“It is a condition of this policy, if this application covers on grapes, not to exceed one-third of the amount of insurance applied for hereunder shall take effect prior to the time that 75% of the berries have attained a minimum size of Vs inch in diameter The Company shall not be liable for loss or damage to buds, blooms, or blossoms in any event, nor for loss or damage to vines and leaves unless such loss to vines and leaves shall affect the product thereof, and.then only to the extent that the product thereof has been affected. * * *”

The grape crops of all of the appellants suffered damage by hailstorm in the latter part of April 1967. Claude Brock, a field representative of a group of insurance companies insuring such risks, and A. G. Ackerman, an adjuster for the group, went to the damaged vineyards shortly after the loss occurred. The crops had not reached a stage of development which permitted any accurate estimate of the loss suffered at that time. At the time of the hail damage none of the grapes in any of the crops had attained the minimum size required for coverage in the face amount of the policies. On the occasion of this visit neither Brock nor Ackerman told any of the appellants that their coverage, under the circumstances, was limited to one-third of the amount of the insurance applied for. They did so advise Lowery Walker, the officer of the insurance agency who dealt with appellants.

Approximately one month after their first visit, Brock and Ackerman returned and made an assessment of the damages to the crops of each of the appellants in amounts that seemed to have been satisfactory to each grower. After determining the amount of damages Brock and Ackerman filled out a form for proof of loss for each of the appellants. The proofs of loss prepared for signature by appellants contained the following paragraph :

“The Insured under above described policy hereby agrees to accept thereunder said amount claimed in full payment, compromise and satisfaction for loss and damage as aforesaid and further agrees that said amount covers in full all loss and damage sustained previous to this date. The Insured also declares that the statements contained herein are true and are made for the purpose of collecting a claim from the Company and that no attempt had been made to deceive the Company, either as to the amount of insurance carried, acreage, location, ownership of crops, or the amount or extent of the loss.”

Each of the appellants declined to sign this proof of loss at first. Both Orville White and Vern White later talked with Walker. Thereafter each of them signed the proof of loss as prepared and submitted it to appellee. The basis of refusal for both of the Whites to sign the respective proofs of loss was their contention that they had bought 100% coverage while the proof of loss was based on only one-third of the damage. Robert E. Pianalto, Secretary-Treasurer of Pianalto-Pozza Farms, Inc., stated that he signed the proof of loss regarding the corporation’s grape crop. He did not talk to Walker but got his policy out, read it and decided that the coverage might be only for one-third of the loss, contrary to his understanding. He said that he signed the proof of loss to avoid as much confusion as possible. Richard Pianalto, president of the corporation, testified that he accepted the adjustment because he was under the impression that there was no alternative, after he obtained advice from certain insurance agents and officers.

After receiving the proofs of loss in the latter part of June 1967, appellee mailed a draft to each of the appellants for the amount shown in the respective proofs, i. e.t one-third of the total damage to each. These drafts were accepted, endorsed and the proceeds collected by the respective appellants. On the reverse side of each draft, immediately above the place where they were endorsed, there appeared the following statement:

“ENDORSEMENT OP THIS DRAFT IS HEREBY MADE ACKNOWLEDGMENT OP FULL PAYMENT AND DISCHARGE OF ALL CLAIMS AND DEMANDS FOR LOSS AND DAMAGE UNDER THE POLICY OF INSURANCE AS SET FORTH ON THE FACE OF THIS DRAFT; IN CONSIDERATION WHEREOF THE SAID POLICY IS HEREBY REDUCED IN SAID AMOUNT.”

On the face of each draft above the signature thereon and following the statement of the amount of the draft in words, appeared the following:

“BEING IN FULL SETTLEMENT OF ALL CLAIMS AGAINST THE ABOVE NAMED COMPANY FOR LOSS AND DAMAGE CAUSED BY HAIL OCCURRING 4/25 Í967 INSURED UNDER CROP-HAIL POLICY NO............. TSSUED AT THE SPRINGDALE, ARKANSAS AGENCY. LOSS NO.........."

Appellants seek to avoid the effect of the clear statements contained in the proof of loss and on the drafts on the basis that the amount tendered and accepted was in payment of a liquidated, undisputed claim arising under the contract and not out of any compromise or settlement between the parties. Thus, they contend, there was no consideration for the release claimed by appellee for the discharge of an additional and distinct amount or item of liability. They rely upon DeSoto Life Insurance Company v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243. In that case, the liability asserted- against which the release was pleaded was an additional and distinct - amount- or item of liability. 'The amount paid for-the -release was the amount which the jury determined to be a liquidated-and-uiidisputed obligation of the-insurance • company ' under ■ a clause providing for payment for partial disability. The claim- there asserted was based upon a -different clause providing for total disability. In its opinion the court recognized the general rule stated in American Insurance Union v. Wilson, 172 Ark. 841, 291 S. W. 417, where there is' a bona fide dispute as to'the amount due under an insurance contract, that the payment of a smaller sunrin satisfaction of the entire claim-is a sufficient consideration for the rfelease-of'the balance -of the amount claimed..

In the Wilson case, there "was the same kind of dispute between-the parties before the payment as existed ..here. ■ That suit was brought to -recover the difference between the face amount of a life insurance benefit certificate and the amount paid by the insurance company. The beneficiary claimed that the face amount. of the original policy was not affected by a merger contract under which the insurance company appealing assumed liability upon insurance certificates issued by the other company. This contract provided' that the appellant there should not be liable to the holders of benefit certificates--in excess ófran amount to be determined according to’ that contract. This' was the amount ‘tendered to'and accepted by the beneficiary in full payment of '-.all claims under the benefit certificate. The dispute there involved was whether the liability under the certificate was limited by the merger agreement because it -had not . been received by the insured and attached to his benefit certificate, thus- never becoming a part thereof. It was- held-. that- there was an accord and satisfaction, even though the beneficiary wrote the company before cashing the check, that he would accept it as part pajunent due on the policy. The court distinctly held that these circumstances did not involve a liquidated claim which could not be discharged by a payment of less than face value. We find the rule stated in that case to be applicable here. Even though the appellants agreed to and accepted the assessment of total damage by appellee’s representatives, there was definitely a dispute as to the amount for which the company was liable under the terms of the insurance policy. Thus the claim cannot be said to have been for a liquidated amount.

Earlier we said that if the basis upon which a liability should be determined under a contract between the parties is in dispute, the case is governed by the rule that acceptance and collection of a check or other remittance clearly stated to be full payment of the claim, without objection, achieves an accord and satisfaction. Arkansas Zinc and Smelting Corporation v. Silver Hollow Mining Company, 148 Ark. 512, 230 S. W. 573. We see no significant difference in that case and this. A later case applying this principle is Squires v. Beaumont, 233 Ark. 489, 345 S. W. 2d 465.

Appellants also assert that reformation should have been granted because of inequitable and unconscionable conduct of appellee’s representatives in failing to inform appellants upon their first visit to the grape fields that they would not receive full coverage but that coverage was limited to one-third of the face amount of the policy. Their argument that this failure prejudiced their opportunity to seek legal counsel before adjustment is unavailing because there was ample opportunity for them to have done so before executing the proofs of loss or accepting the payments. Even so, this is not the type of inequitable conduct necessary to justify reformation of a contract. If this conduct can be said to be inequitable and unconscionable, it did not induce any action on the part of any of the appellants or cause either of them to change his position in any way. Certainly the failure to so inform appellants did not cause any of them to enter into the contract involved or to accept the payment offered. We find no merit in this contention.

The decree is affirmed.

      The only variation in this statement was the policy and the agency loss numbers. (Footnote Ours.)


author: Conley Byrd, Justice.

text:
    Marie BRADFORD v. CHECKER CAB CO.
    5-4929
    444 S. W. 2d 684
    Opinion delivered September 8, 1969
    [Rehearing denied October 13, 1969]

      Kenneth Coffelt and Howell, Price & Worsham, for appellant.

      Gochrill, Laser, McGehee, Sharp & Boswell, for appellee.
   Conley Byrd, Justice.

Appellant Marie Bradford was a passenger in an automobile that was rear-ended by a taxi-cab owned and operated by appellee, Checker Cab Co., at 6th and Main Sts., Little Rock, on Sept. 21, 1965. From a jury verdict in favor of appellant for her personal injuries for $600.00, she appeals alleging: (1) that the verdict was contrary to the law and evidence because her special damages amounted to $2,411.82 and (2) that the trial court erred in denying appellant’s request to examine jurors individually on voir dire.

The record shows that the trial court called in forty-five new jurors on June 3, 1968, to serve through June 15, 1968. Appellant’s case came on for trial on the morning of June 4. At the trial appellants council stated:

“Second, we request the right to examine them one at a time and I want to say this to the Court, that I don’t know any of these jurors personally, with the possible exception of three or four out of the list of forty-five that was handed me yesterday, so in order to find out exactly who they are and what they do I want to examine them one at a time. . .”

The Court in overruling appellant’s request to examine the jurors individually stated:

‘ ‘ Overruling that request in the absence of any specific showing of need and I want to call your attention and for the benefit of the record, to the fact it has been the policy of this court now for many months to obtain from the jurors an answered questionnaire available and which is made available to the bar of this district setting forth most of the pertinent information. I’d like to read into the record what it contains.
“Containing the name of the juror, home address and phone number of juror. Marital status, number of children of juror. Occupation and employment of the juror, and employer, the phone number of juror’s occupation or employer. The question if you are' not now employed give your last occupation, employer. If married, name and occupation of husband or wife. If you have ever served as a juror before. If you have a claim for personal injuries, if a claim for personal injuries has ever been made against you or any member of your family, and if any member of your family has ever made a claim for personal injuries which is signed by the juror and is available for the bar of this district. The motion or request to Voir dire the jury individually is overruled. ’ ’

The rights of counsel to examine jurors individually was recently stated in Tatum v. Rester, 241 Ark. 1059, 412 S. W. 2d 293 (1967), in this language:

“It has long been recognized in this State that ‘litigants in civil cases, as well as in criminal cases, have the right to examine the jurors separately in order to determine whether such jurors are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge, subject of course to the right of the court to control the extent of such examination, acting in its sound discretion.’ ”

The concurring opinion in Tatum v. Rester expressed it this way:

“Lawyers have the right to question jurors, separately and individually, to determine whether they are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge. But all this is subject to the right of the court, acting in sound discretion, to control the extent of the examination. Then, too, the court would seem to have the responsibility of moving forward on questions concerning statutory qualifications. See Ark. Stat. Ann. § 39-226 (Repl. 1962).”

We recognize that the trial court here was attempting to expedite the litigation in his court and that in this endeavor he should be encouraged. However, reluctantly, we find that under the record here, in view of the short notice to counsel of the . new jurors called in the evening before, that he abused his discretion in refusing counsel an opportunity to examine the jurors individually. In so holding, however, we do not intimate that .a trial court in a civil case must permit counsel to ask the same question of twenty-four jurors.

We find no merit in appellant’s contention that the verdict was contrary to the evidence.

Reversed and remanded.


text:
    Virgil DENNIS d/b/a Hand-I-Pak v. Sylvia CRABTREE et al
    5-4948
    444 S. W. 2d 251
    Opinion delivered September 8, 1969

      Wright, Lindsey & Jennings, for appellant.

      Gaughan, Laney, Barnes & Roberts, for appellees.
   Conley Byrd, Justice.

The appellee Sylvia Crabtree on Sept. 25, 1967, slipped and fell in the Hand-I-Pak grocery store operated by appellant Virgil Dennis in Camden, Arkansas. As a result of the fall Mrs. Crab-tree suffered personal injuries for which she had expended in excess of $3,000 for medical expenses. The jury returned .a verdict for $3,500. From the judgment entered thereon, appellant Virgil Dennis appeals contending that the trial court erred in not directing a verdict in his favor.

Mrs. Crabtree entered the store about 4 o’clock to buy some cat food. After passing by the check-out stand, five or six feet from the door, she turned to her right and entered the second aisle between the shelves or gondolas erected to display merchandise. After walking a few steps down the aisle she slipped and fell. When she yelled for help Mr. Dennis came to her aid and helped her to sit up. While she was sitting, Mr. Bill Jones, a store employee, came by and found a bottle cap 18 inches from her right foot. On cross-examination Mrs. Crab-tree testified that she did not know what she slipped on when she fell and that all she knows is that she did slip and that after she fell there was a bottle cap there. She stated, “Well, there was something under my foot, yes, when I went down, because when I took that step my foot just slipped real quick and I was down.”

Mr. Jones described the store as having only one entrance. According to him a person entering the store would find the check-out stand some five or six feet inside the store. Behind the check-out stand were gondolas or shelves, 23 feet 6 inches long, erected to hold canned goods and so constructed as to permit passage around the end of the gondolas before reaching the wall or rear of the building. The person entering the store would find to his left a coke box and magazine rack, and to the right a shopping cart used as an empty drink bottle drop. Mr. Jones testified that after he heard Mrs. Crab-tree yell, “Somebody help me”, he finished checking his customer and went to see what, was the matter. Some 18 inches from Mrs. Crabtree’s foot he found a bottle cap which he put in a waste container. He described the bottle drop as being 30 feet from the point where Mrs. Crabtree fell. With reference to the bottle drop and its usage Mr. Jones testified:

“Q. Bill, with regard to people coming in the store and placing, say, empty bottles in this hamper here, most generally how do people carry them in to be placed in the hamper?
A. Oh, they’re usually in cartons. Sometimes they bring them in paper bags and sometimes they’re just loose in their hands.
Q. Have you ever seen any bottle caps or other extraneous material deposited in there with these bottles?
A. Occasionally you do.
Q. Is this hamper such or so constructed that, say if a bottle cap were placed in the hamper —what would happen to that bottle cap?
A. It would lodge in the bottom of the buggy unless it fell on the outside of it.
Q. Is there any possibility that it would fall through the bottom of the buggy?
A. If it went up and down like that.
Q. There is that possibility?
A. It’s a possibility.”

Jones testified that he had swept the floor during the month of September, 1967, and did not recall sweeping up any bottle caps. This included the area around' the bottle drop. He did find bottle caps occasionally around the coke machine.

Johnny Strickland testified that he had been in the store on several occasions and had seen bottle tops to the left of the check-out counter near the Pepsi machine. That about the time Mrs. Crabtree fell he had been in the store and got a Pepsi from the machine and the bottle top holder was full and caps were on the floor.

Appellant contends that Mrs. Crabtree had the burden of proving that a dangerous condition existed which proximately caused her injuries and, second, that the condition existed sufficiently long for appellant to be chargeable with negligence in having failed to discover it. This argument is based upon our holdings in Owen v. Kroger Co., 238 Ark. 413, 382 S. W. 2d 192 (1964), and Jackson v. Hemphill, 245 Ark. 699, 434 S. W. 2d 818. Appellee’s argument is as follows:

“Appellee submits that a notice requirement is indeed proper; but in a proper case, such as this one, the notice requirement does, or at least should, refer to notice, actual or constructive, of. the general condition of the premises, not of the specific object or ■ substance on -the floor.”

Appellee’s argument is based upon the holdings of courts in Bozza v. Vornado, Inc., 42 N. J., 355, 200 A. 2d 777 (1964), and Mahoney v. J. C. Penny Co., 71 N. M. 244, 377 P. 2d 663 (1962).

In the latter case it was held:

“Where the dangerous condition is not an isolated one . ... but is foreseeable because of a pattern of conduct, a recurring incident, a general condition, or a continuing condition, then we hold that the rule most conducive to.justice is that rule which holds that, absent a showing of due care, plaintiff need not prpve that defendant had actual or constructive knowledge of the specific item forming part of that pattern of conduct, recurring incident, etc. . .”

Based upon these authorities, Mrs. Crabtree argues:

“This is merely a case where the jury was properly permitted by the Trial Court to determine that appellant was negligent in (1) providing a receptacle that allowed bottle caps to fall through it to the floor; and. (2) in locating the receptacle in the most heavily traveled portion of the premises.
“There was certainly evidence from which the jury could have reasonably inferred that (1) the plaintiff fell on a bottle cap; and (2) the bottle cap came from the receptacle. The jury could have, and in fact did, further find that the type of receptacle and its location created an unreasonable risk of hazard to the plaintiff. Hence, notice, actual or constructive, of the length of time the bottle cap remained on the floor would be immaterial to this case.
“In this regard, Appellee submits that it is noteworthy that the defendant also had actual notice of the condition, i. e., the type of receptacle in use and that caps fell through it to the floor. Likewise there is no evidence whatsoever of any customer having been in the store at the time of the fall, or at any time immediately, or even shortly, prior to the fall (evidence, we would point out, which always is going to be in the exclusive possession of the occupier of the premises).”

We agree with Appellant that the trial court should have directed a verdict. We are unable to find in the testimony any showing of a dangerous condition existing around the bottle drop because of a pattern of conduct or recurring incident as was the situation in the Bozza and Mahoney cases, supra. Neither can we find any evidence relative to how long the bottle cap was permitted to remain on the floor. In this regard we note that contrary to .appellee’s argument there is evidence of other customers having been in the store at the time of the fall.

Reversed and dismissed.


author: Frank Holt, Justice. Conley Byrd, Justice,

text:
    Helen C. HARVEY, as next friend for Edwin S. Harvey, a minor v. Sherrell SHAVER and Anita Shaver, husband & wife
    5-4975
    444 S. W. 2d 256
    Opinion delivered September 8, 1969

      Jones & Butt, for appellant.

      Putman, Davis & Bassett, for appellees.
   Frank Holt, Justice.

This appeal results from granting appellees’ motion for a summary judgment. For reversal appellant contends that the pleadings and evidence constituted justiciable issues of fact for a jury.

Appellant brings this action, as next friend, to recover damages for permanent injuries sustained by her ten-year-old son, Edwin, when he was struck in the eye by a sky rocket discharged by appellees’ eleven-year-old child, Darrell. Appellant alleged in her complaint that the appellees were negligent in allowing their minor child to be in possession of the sky rocket, an inherently dangerous instrumentality; in permitting him to discharge or explode the sky rocket without any supervision and in violation of the law. The appellees answered with a general denial and alleged certain affirmative defenses. Interrogatories, answers, and other pleadings were filed, including depositions of the parties. Thereupon appellees filed their motion for a summary judgment on the ground there existed no disputed material issue of fact. The appellant responded, urging that the pleadings and depositions constituted a material fact question of negligence.

The facts appear largely undisputed. The appellant’s and appellees’ children often played together as neighbor children as they were doing on the day of the alleged injury. The appellee, Sherrell Shaver, had previously purchased a variety of fireworks for a Fourth of July celebration at which time he took his children outside the city and personally discharged some of the fireworks for their entertainment. He stored the remainder on a shelf in a utility room adjoining his carport. He instructed his children, who knew where the remaining fireworks were, not to use or play with them under ■any circumstances; admonished them that they were dangerous; that the use of them could result in harm or burn the house; that it was a violation of a city ordinance to use them inside the city limits; and that the fireworks should be left there until the next Fourth of July. About seven months later, appellee Shaver was in his house watching television when he learned that his eleven-year-old son, Darrell, had removed from the unlocked utility room a small sky rocket and discharged it after placing the bamboo stick end into the ground and pointing the rocket at his neighbor’s house. The projectile traveled 15 to 18 feet when it struck Edwin in the eye as he unexpectedly came around his father’s house. Appellees’ child, Darrell, who discharged the rocket, had never, before disobeyed his father’s warning about the use of the fireworks. He was described as a normal child for his age except that “he was a pretty hard-headed boy though.”

. Counsel for the appellees ably and forcefully argues that the motion for summary judgment was properly granted under the fact situation in the case at bar and to hold otherwise would be an unreasonable extension of the principles enunciated in the recent cases of Bieker v. Owens, 234 Ark. 97, 350 S. W. 2d 522 (1961) and Williams v. Davidson, 241 Ark. 699, 409 S. W. 2d 311 (1966). In Bieher we said that a parent could be liable for his child’s misconduct where the parent had the opportunity and ability to control the minor child, a knowledge of the tendency or proclivity of the child to commit acts which could normally be expected to injure others and then failed to exercise reasonable means of controlling the child. In Bieker the offending child had demonstrated on several occasions a propensity to assault others with his fists. In Williams the offending child had on one occasion, misused a BB gun which was kept accessible to him and there we said that a jury question of parental liability existed.

Appellant contends that the criteria in Bieker are not exclusive, particularly as to known past misconduct. Appellant asserts that when the whole of the circumstances in the case at bar are considered,.a fact situation exists for submission to a jury which, is consonant with our most recent pronouncement of- parental 'responsibiP ity in Williams v. Davidson, supra, where disobedience had occurred only once. Both appellant and appellees cite authority to support their views, as to the extent-df parental liability for the misconduct or- negligent acts of a child. However, neither have cited to us, nor does -our research reveal, a case -that involves an- injury resulting from the use of a sky rocket as in the case at bar. In this ease we think the better reasoned view is that the pleadings and the evidence'present' material' questions of fact for the jury to determine and, therefore, a basis for a summary judgment does -not properly exist. - •

We have often said that a motion for a summary judgment is an extreme remedy and that the burden of demonstrating the non-existence of a genuine' issue of fact is upon the party moving for the summary judgment and, further, when the evidence, although‘ not in material dispute, reveals aspects from which' inconsistent hypotheses might' reasonably be drawn- and reasonable -men might differ, then a summary judgment is not proper. Deltic Farm & Timber Co. v. Manning, Adm’x, 239 Ark. 264, 389 S. W. 2d 435 (1965). Any evidence which is submitted with a; motion for summary judgment must be viewed in the light most favorable to the party against, whom the. judgnient is made and with all doubts and inferences being resolved against the movant. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963).

In the case at bar we think justiciable, issues of, fact exist when we consider .the circumstances: as a, whole. These circumstances include the fact that, the .appellee parent purchased a variety of fireworks, used part of them with his children on: a Fourth of July and with their knowledge, stored the -remainder in á utility room which was unlocked part of the time during a seven-month interval; that foreseeable harm to person and property by the use of the fireworks was apparently recognized when he admonished his children not to use them under any circumstances; and that any use within the city limits was in violation of a city ordinance. The age and immaturity of the offending child and the nature and attractiveness of the article discharged by him are other factors to be considered. It is significant that the public, acting through its city council, as well as our state legislature [Ark. Stat. Ann. § 82-1701, et. seq. (Supp. 1967)], has deemed it necessary to prohibit or regulate the possession and use of fireworks.

We cannot say that a jury should not be permitted to consider evidence in support of the allegations in appellant’s complaint as to appellee Sherrell Shaver. However, the record shows without contradiction that his wife, Anita Shaver, had no knowledge of the existence or use of the sky rocket. The summary judgment of dismissal is reversed as to him and affirmed as to her. It is so ordered.

George Bose Smith, Jones and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. In Bieker v. Owens, 234 Ark. 97, 99, 350 S. W. 2d 522 (1961), we held:

“Since each human mind and personality is exclusively that of the individual possessing it, it would be unreasonable to place an absolute responsibility for the acts of another on any person. But where the parent (1) has the opportunity and ability to control a minor, and (2) has knowledge of the tendency or proclivity of the minor to commit acts which could normally be expected to cause injury to others, and (3) after having such opportunity, ability and knowledge has failed to exercise reasonable means of controlling the minor or appreciably reduce the likelihood of injury to others because of the minor’s acts, the parent should be made to respond to those who have been injured by such acts of the minor.” (Emphasis mine.)

The rocket here involved is the little bottle rocket that some 200,000 or 300,000 children in this state annually fire on New Year’s Day and the Fourth of July (and some times in between). In other words, we have involved a children’s toy — i. e., one so recognized and permitted by law, see Ark. Stat. Ann. § 28-1701(2) (Supp. 1967). The majority is holding that the parents of those two or three hundred thousand children can be held responsible for storing or permitting such fireworks to be stored on their premises even though they have no reason to suspect that their children will use or attempt to use the fireworks so as to cause injury to others. The majority so holds even when the unmitigated evidence shows that the child involved had no tendency or proclivity to commit acts which could normally be expected to cause the accident that occurred.

As can be seen the effect of today’s holding is to hold every parent absolutely responsible for injuries caused by fireworks contrary to the rule laid down in Bieker v. Owens, supra, and notwithstanding that the possession thereof is permitted by law. See Ark. Stat. Ann. § 82-1701 (Supp. 1967).

Nor can I find anything in Ark. Stat. Ann. § 82-1701 (Supp. 1967) to support the majority’s position, even though they have made the suggestion, because there is not even an allegation that the conduct of the parents in possessing and storing the fireworks was unlawful, and there is certainly no facts to sustain such an insinuation.

For these reasons, I would affirm the summary judgment of the trial court in dismissing the action against Sherrell Shaver and his wife Anita Shaver.

George Rose Smith and Jones, JJ., join in this dissent.


author: Carleton Harris, Chief Justice.

text:
    SOUTHERN COTTON OIL CO., INC. v. James FRIAR
    5-5004
    444 S. W. 2d 556
    Opinion delivered September 15, 1969

      Hout, Thaxton & Hout, for appellant.

      Smith, Williams, Friday & Bowen; By: George Pike, Jr., for appellee.
   Carleton Harris, Chief Justice.

James Friar, appellee herein, is a common laborer with a background of steady employment until October 29, 1963, when his right hand was mutilated in a saw-type apparatus while employed by appellant, Southern Cotton Oil Company. It subsequently became necessary that the hand be amputated, and this was done on May 30, 1964. The company paid appellee’s medical and hospital expenses, paid for his prosthesis, and 40 weeks’ compensation during the healing period. Thereafter, Friar applied to the commission for the payment of a total of 150 weeks of compensation in two lump sum payments, and, with the written consent of appellant, the commission approved the two payments, the last of which was made on October 16, 1964. On November 3, 1967, appellee filed a claim for additional compensation, seeking total and permanent disability, additional medical treatment, and an attorney’s fee based on all sums awarded. This claim was controverted by the company, appellant taking the position that a joint settlement had been entered into between the parties, and claimant was accordingly barred from making any further claim. The company was also of the view .that, at any rate, Friar’s claim was barred by the statute of limitations, since the claim was not filed until more than two years after the last lump sum payment was made on October 20, 1964. The claim was heard by a referee who held that the two lump sum applications filed by the parties did not constitute a joint petition within the meaning of the "Workmen’s Compensation Act, and who further held that Friar had until July 12, 1968, to file for additional benefits, and the claim accordingly was not barred. It was ordered that the company offer medical treatment to claimant for the removal of a neuroma on the stump of the right arm, and for the fitting of the prosthesis that had already been purchased by the company (but could not be used after the appearance of the neuroma). This was the extent of the award, and appellee appealed to the full commission. On hearing, the commission agreed with the referee that the lump sum payments did not constitute a joint petition settlement, and that the filing of the claim was not barred by the statute of limitations. The commission held that, as long as Friar was disabled with a curable neuroma on the stump of his right arm caused by the injury or the surgical amputation, the healing period had not ended, and it found that he had been totally disabled from the performance of any available work for which he was fitted. Thereupon the commission directed as follows:

“Beginning on October 30, 1963, and continuing subject to the limitations and provisions of the Arkansas Workmen’s Compensation Law, respondent shall pay claimant compensation at the rate of $35.00 per week until the further order of this commission, but shall take credit for compensation for 190 weeks already paid claimant. All compensation which has already accrued shall be paid in one lump sum, and all compensation which had accrued on March 20, 1968, the date of the filing of the referee’s award, shall bear interest from that date until paid at the rate of six per cent per annum, and all compensation accruing since said date shall bear interest at the rate of six per cent per annum from the date of accrual until paid.”

In addition, the company was directed to make arrangements with Dr. H. Austin Grimes of Little Rock for the further treatment of Friar’s right arm, and appellant was required to furnish reasonable hospitalization services for and during the period of claimant’s treatment. It was then directed that, after the arm had healed, the company should furnish a suitable prosthesis, and provide for the fitting of same. The commission stated that it would then hear further evidence on the question of Friar’s permanent disability, if any. This award was appealed to the Jackson County Circuit Court, which affirmed the commission. From the judgment so entered, appellant brings this appeal. Two points are relied upon for reversal, viz, first, “The appellee’s claim for additional compensation is barred by the statute of limitations.” Secondly, “There is not sufficient competent evidence in the record to warrant the .award of temporary total disability from October 29, 1963.” We proceed to a discussion of these contentions.

Let it first be said that the question of whether the two “lump sum settlements” constituted a “joint petition ” is no longer at issue in this case, appellant not arguing this contention in its brief, and stating in open court that it no longer relies upon that assertion. The principal question before us is, where a lump sum payment is made, whether the statute of limitations commences to run from the date of that payment, or whether it does not commence until the date the last payment of compensation would have been due, had the payments been made only as they accrued. We have, after a thorough study of this issue, concluded that the statute only commences at the date the last payment would have been due if the compensation had been paid in installments, and we are accordingly of the opinion that the commission and the Jackson County Circuit Court decided this question correctly for the reasons hereafter set out, and the trial court should he affirmed.

The statute in issue is Ark. Stat. Ann. § 81-1318(h) (Repl. 1960), and reads as follows:

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

This is a case of first impression in this state, and research discloses that the courts of other jurisdictions have differed in their answer to the question presented. In 165 A. L. R. there is a discussion at Page 59, as follows :

“In order to determine whether an application for review, reopening, modification, or reinstatement has been filed within the time limits prescribed in the local law, it frequently is necessary to ascertain preliminarily what the date or time was when compensation was last previously paid. The only generalization warranted by the authorities (different statutes and different fact situations being involved in the decided cases) is that an effort is made to construe the statutes liberally, but without doing violence to their plain import and purview, in determining upon what date the last previous payment of compensation was made.
“In determining the date of the last previous payment of compensation, it has been held that the period of limitation which starts to run from the date of ‘last payment of compensation’ runs from the date when such a last payment actually was due, and that a review application will not be barred where it was made within the statutory period following that date, notwithstanding that payment itself was actually made by check in advance of the due date. But it has been held conversely, although consistently with the previous holding, that the actual date of the last payment will be controlling to determine the commencement of the running of the period, where payments which were due are made belatedly. The period starts to run from the date when the last period actually was made, not from the date when such payment would have been made had the payments been made regularly from the date of the accident.
* • *
“It sometimes happens that compensation which was being paid in weekly or similar installments is commuted and paid in a lump sum. As a physical actuality, in such a case the injured employee receives the ‘last’ payment of compensation very much earlier than he would have received it had the compensation continued to be paid in installments. It is then sometimes contended that the statutory period for review started to run from the time the commuted payment would have been made had there been no commutation. Although the authorities are not in complete agreement, most of the courts which have passed on this question have held that where compensation is commutated and paid in a lump sum, payment so made at the time of commutation does not constitute a ‘last’ payment so as to start the running of the statutory period within which review may be sought; the statutory period, in such a case, does not run .against a review application until the time when the payments on the original award or agreement would have run out had they continued to have been paid in installments. As ,a reason for such rule, it has been pointed out that commutation does not in and of itself affect the merits as to whether in a particular case further compensation may or may not be attempted to be secured, but constitutes nothing more nor less than an advance payment.”

We have held that the Workmen’s Compensation Act is to be liberally construed.

Let it be remembered that the lump sum payment is not an advantage to the claimant; in making this settlement, the company is not mistreated in any manner. The lump sum settlement is frequently of benefit to all parties. The claimant receives the cash, and is .able to pay bills which may have accumulated during his absence from work, and the company receives the benefit of a 4% discount when the accrued compensation is paid in a lump sum.“ Were .appellant’s view to be adopted by this court, tbe employer would receive an additional benefit, i. e., the statute of limitations would be shortened.

Both appellant and appellee cite the case of Phillips v. Bray, 234 Ark. 190, 351 S. W. 2d 147. If the case can be said to be of aid to either party, it would appear that the language is favorable to appellee. In Phillips, a lump sum payment of $1,406.25 w,as paid to claimant by the insurer on December 12, 1958, this amount covering periodic installments which had already accrued. On January 18, 1960, claimant filed a claim for total permanent disability. The employer contended that the claim was barred by the statute presently under discussion, inasmuch as such claim was not filed within one year from the date of the last payment (the lump sum payment of December 12, 1958). We held that the claim was barred; however, we made specific mention of the fact that the lump sum payment was for accrued installments “and not for future accruals.” One of the justices dissented on the basis that the record did not make clear that the $1,406.25 payment was to take care of payments which had already accrued, rather than future accruals.

Appellant relies to a great extent upon our case of Jones Furniture Manufacturing Company et al v. Evans, 244 Ark. 242, 424 S. W. 2d 880, and, at first blush, it might appear that the case is strong support for appellant’s position. Jones did not involve a lump sum settlement. There, claimant was given an award of compensation for an injury received on May 13, 1964. On June 16, 1966, the claimant filed for additional compensation as a result of the May, 1964, injury and again received an award of compensation from the commission. The last installment of the original award had been due on June 4, 1965. The company made this payment, but was late in making it, the payment actually being made on June 17, 1965. Appellant appealed the commission award based on the June 16 claim to this court, contending that the claim was barred by the statute of limitations since it had not been filed within one year of the due date of the last payment, June 1, 1965. The claimant contended that his claim was filed in time, since it was filed less than one year (by one day) after the last payment had actually been made.

We have given considerable thought to the holding in Jones, realizing that in affirming the case now before us, it could perhaps appear offhand (though it is not argued by appellant) that this court, under the same circumstances, has held both that the statute commences to run at the time the last payment is actually made (as in Jones), and contrariwise, that the statute does not begin to run until the payment becomes due. It might thus appear that the claimant could prevail under either set of circumstances, and it goes without saying that such a result would seem grossly unfair to an employer. But a look at the facts in Jones makes it clear that that case was correctly decided, and is not, in any way, in conflict with the present holding. In the New Jersey case of Bucci v. Kirkpatrick Construction Company, 166 A. 203, the same factual situation arose, the only difference being that Bucci was not decided until after the New Jersey Supreme Court had held that in cases of advance settlements the statute did not commence to run until the due date of the final installment. In Bucci, the court said:

“It will be seen immediately that the present petition was filed more than a year after the date when the previous compensation payments would have expired had they been regularly paid since the accident, but less than a year from the time the compensation settlement award was made, after which date, of course, the last payments were made in fact. Respondents thereupon rely upon Harris v. International Motor Company, supra. There the employer had made payment before it came due. Counting the year from the date of the last payment in fact, the filing of the petition considered in the Harris Case was out of time. But, counting the year from the date the last payment should have been made, the petition was filed within time. The statute there considered, P. L. 1918, chap. 149 § 5, similarly provided for the filing of the petition ‘within one year after the last payment of compensation.’ The court there liberally construed the statute to hold the petition to be filed within time.
“Respondent in the case at bar accordingly argues that the converse should apply; i. e., that where an employer has made payment, not too soon but belatedly, the period should be counted, as in the Harris Case, from the time it should have been paid, not from the time it was paid in fact. But the present situation differs radically in law and common fairness from that in the Harris Case. There the court liberally interpreted the words of the statute to meet a situation where the parties had acted contrary to the ordinary course of human events, in making payment before the due date, a situation which it was hardly to be expected that the words of the statute would clearly cover. Here, on the contrary, the employer has not made payment steadily since the accident, as it has now been found he should have done, bnt has made same only after being required by the court to do so, a very normal situation. To this situation the words of the statute directly apply, that the period shall be counted as starting from ‘the last payment of compensation.’ To apply the statute in the manner contended by the respondent would permit the employer by adroit adjournment, and failure to do what it is notv found he should have done, to bar petitioner of his statutory rights, in the very face of the words of the statute, a result repugnant to every principle of justice.”

We think the position of the New Jersey court was sound and logical. Certainly, to permit an employer or its insurance carrier to make a late payment, i. e., subsequent to the due date of the final payment, and then rely on that fact to bar claimant, would be permitting one to profit by his, or its, own wrong, and might well encourage companies to make late payments as an additional aid in invoking the statute of limitations. It is thus seen that there is really no conflict between the ruling in Jones Furniture Company v. Evans, supra, and the holding in the present case, for, if the payment in Jones had been made when it was due, instead of 13 days late, the claimant would have been barred under our statute of limitations.

In Phillips v. Bray, supra, we said:

* * It seems perfectly obvious that the primary purpose of the one-year statute of limitations is to give the claimant that much extra time in which to decide whether he has been fully compensated for his injury, # * * J ?

That being true, it would not appear that it was the intent of the General Assembly, in passing this act, to cut off the one-year period which is .allowed the claimant to make this determination. We hold that the claim was not barred by the statute of limitations.

As far as this record is concerned, we do not feel that the evidence is sufficient to enable us to pass on the question of whether the award of temporary total disability from October 29, 1963, should be upheld. In June, 1964, Dr. Grimes, by letter, stated that, following the date of surgery in May, 1964, the post-operative course was uneventful. He said that the stump was well healed, and had satisfactorily shrunk to allow fitting for an upper extremity prosthesis. However, in December, 1967, Grimes made a report, stating that Friar continued to have pain over the wrist stump, and observing that there was a need for revision of the stump (because of a neuroma formation) in order to allow the utilization of a prosthesis. Friar testified that he had been unable to obtain employment since the accident, and he mentioned applications that had been made at several places. He testified that he was unable to wear the hook (because of the neuroma), and accordingly had only one hand to use in his work. The evidence reflected that claimant had a fourth grade education, and the only work that he had ever performed was common labor. There was no evidence offered that claimant could have obtained work, and it seemed certain that he did not have the use of but one hand. However, as stated by Commissioner Oliver Wendell Holmes in a dissenting opinion as to Point 2, there is no evidence that the neuroma discovered by Dr. Grimes in December, 1967, had been in existence all during the period following the accident. And, as stated by Commissioner Holmes, it is not at all clear why Friar waited more than three years to seek additional medical attention.

We think this phase of the case should be more fully developed, .and the case is reversed as to Point Two and remanded to the Jackson County Circuit Court, with directions to remand same to the Workmen’s Compensation Commission for further proof on the question of when the present disability commenced, i. e-, when the neuroma discovered by Dr. Grimes in December, 1967, first evidenced itself.

It is so ordered.

        A tumor arising from nerve tissue.

      The commission said:
      “This neuroma has prevented claimant from the use of the prosthesis, and considering his age, occupational experience, lack of education, lack of skill in any occupation except physical • manual labor, the unavailability of employment for a person of his qualification and condition, and the fact that he has not been able to use his right arm, we are led to the conclusion that during this period of time he has been totally disabled from the performance of any available work for which he is fitted.”

      See Ark. Stat. Ann. § 81-1319 (k) (Repl. 1960).

      See Ark. Stat. Ann. § 81-1319(1) (Repl. 1960). See also Brooks v. Arkansas-Best Freight System, Inc. Employer; Adrian L. Ferguson v. Arkansas-Best Freight System, Inc., Employer, handed down Sept. 2, 1969.

      This word is obviously a misprint, and should be “payment.”

      Our research reveals cases from six states which have passed upon this question, New York, Pennsylvania, and New Jersey holding in the manner, cited in this annotation as the majority rule, while Florida, North Carolina, and Maryland have held to the contrary.

         Boyd Excelsior Fuel Company v. McKown, 226 Ark. 174, 288 S. W. 2d 614; Reynolds Metal Company v. Brumley, 226 Ark. 388, 290 S. W. 2d 211; and cases cited therein.

       Even if reduction of the installment payments to present value is not a benefit to the company, it is still relieved of the burdensome clerical work and bookkeeping attendant upon making numerous payments.

      Emphasis supplied.

      This case was decided by the Court of Common Pleas of New Jersey, and is referred to in the ALR annotation previously mentioned in the present opinion.

      In Harris v. International Motor Company, 153 A. 97, the final installment of the compensation due the claimant was paid in advance of the due date, but the Supreme Court of New Jersey held that the phrase in the statute, “within one year after last payment of compensation,” authorized the injured claimant to file petition for further compensation within a year after the last payment of compensation was due, rather than when it was actually made. This holding has been reiterated several times, the last case we have found being Roberts v. All American Engineering Com

        pany, 248 A. 2d 280 (Nov. 1968). In this case the court comments that the period of limitations does not commence to run, though a lump sum payment had previously been made, until the last payment would have been due had it been paid by installments. The present New Jersey statute provides a two-year statute of limitations.

       Emphasis supplied.

       Ark. Stat. Ann. § 81-1319 (h) (Kepi. 1960), by requiring notice to the commission of final payment within 30 days points up the significance of prompt payment in relation to the statute of limitations. This notice permits the commission to see that the rights of the claimant have been protected.


author: George Bose Smith, Justice.

text:
    B. B. McCARLEY v. Roy ORR
    5-5007
    445 S. W. 2d 65
    Opinion delivered September 15, 1969
    [Rehearing denied October 27, 1969]

      Wright, Lindsey & Jennings, for appellant.

      Sullivan & Caushie and Lester & Shults, for appellee
   George Bose Smith, Justice.

Among several issues .argued in the briefs a single question is decisive of this litigation: Under § 4 of Act 148 of 1929 may the Governor appoint as a member of the Arkansas Real Estate Commission a person who has not been nominated for the office by the Arkansas Real Estate Association? The trial court answered that question in the affirmative and accordingly upheld the appointment of the appellee Orr, although he had not been recommended for the office by the Association. We agree with that view.

The Arkansas Real Estate Commission was created by Act 148 of 1929. The Arkansas Real Estate Association is an organization composed of those real estate brokers and salesmen who voluntarily join the Association. We quote that part of Act 148 which must he construed in the determination of this case:

There is hereby created the Arkansas Real Estate Commission, hereinafter called the Commission. The Governor shall appoint from a list of twelve nominees submitted by the Arkansas Real Estate Association three persons whose vocation for a period of at least five years prior to the date of their appointment shall have been that of ,a real estate broker or a real estate salesman; no two of whom shall be from the same congressional district. One member shall be appointed for a term of one year; one member shall be appointed for a term of two years; one member shall be appointed for a term of three years; and until their successors are appointed and qualified; thereafter the term of the members of said Commission shall be for three years and until their successors are appointed and qualify. The Governor shall appoint members to fill vacancies whose qualifications shall be the same as hereinbefore provided in this section. [Ark. Stat. Ann. § 71-1303 (Repl. 1957).]

According to the proof, from 1929 through 1950 all the appointments were made from nominees of the Association, but it is not shown how many nominees were submitted each year. From 1951 through 1966 the Association, by agreement with each Governor, annually submitted only a single nominee, who was invariably appointed. Some sort of dispute arose in 1967, but eventually Governor Rockefeller appointed a person nominated by the Association.

In 1968 the Association submitted a slate of four nominees, but the Governor appointed the appellee Orr, whose name was not among the four. This usurpation action was then brought by the appellant, who had been appointed to a three-year term in 1965. He insists that Orr’s appointment was invalid and that therefore Mc-Carley should remain in office as a holdover until a qualified successor has been appointed in conformity with the statute.

We will briefly state the reasons for our conclusion that the trial court was right, without quoting various rules of statutory construction that are apt to be little more than platitudes in a case of this kind. First, we do not consider nomination by the Association to be a qualification for the office within the meaning of the last sentence that we have quoted from the statute. The act provides that the Governor “shall appoint from a list of twelve nominees submitted by the Arkansas Real Estate Association three persons whose vocation” for at least five years shall have been that of a real estate broker or salesman, no two of whom shall be from the same Congressional district. In studying this sentence we are inclined to think that the qualifications are the two matters that follow the reference to “three persons.” In that view the qualifications are to be binding both upon the Association and upon the Governor. Undoubtedly the appellant’s construction of the act would have been greatly strengthened had the sentence been arranged differently, such as a declaration that the Governor should appoint three persons who had been nominated by the Association, who had been real estate brokers or salesmen for at least five years, and who all resided in different Congressional districts. But the sentence does not so read.

Secondly, even if the legislature intended for nomination by the Association to be a qualification for the office, the act is deficient in failing to state the number of nominees that must be submitted by the Association each year. It is net likely that the submission of only one name was intended, for in that view the .appointment would be made by the Association rather than by the Governor. Arguments might be made in favor of a slate of either four names or twelve names, but in fact the statute simply contains no provision on the subject. We do not feel justified in reading into the .act our own guess at what the legislative intention would have been if the draftsman of the act had actually considered the point.

Finally, we are not persuaded that the statutory deficiency has been supplied by the practical construction given to the act by the executive department through the years. It goes without saying that such a practical construction is not binding upon the courts. Walnut Grove Sch. Dist. No. 6 v. County Bd. of Education, 204 Ark. 354, 162 S. W. 2d 64 (1942). Here the only practical construction shown by the proof involved the submission of just one name to the Governor each year. That, as we have indicated, is the least acceptable of any of the suggested solutions to the problem. It is our conclusion that while the legislature may have intended for the annual vacancies to be filled upon the recommendation of the Association, it failed to include in the act appropriate language to carry such an intention into effect. We are not at liberty to supply by judicial interpretation a procedure which the lawmakers themselves failed to embody in the law.

Affirmed.


text:
    Emery Berryman BAGLEY v. The STATE of Arkansas
    5424
    444 S. W. 2d 567
    Opinion delivered September 25, 1969

      Harold Sharpe and Henry Wilkinson, for appellant.

      Joe Purcell, Attorney General; Hon Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Emery Berryman Bagley was convicted of first degree murder and sentenced to death. Bagley and a companion hitchhiked a ride out of Memphis, Tennessee, and their benefactor was fatally shot as the three men drove through St. Francis County. Two written confessions of Bagley were introduced at his trial, both of which iinplicated him. The State’s evidence was clearly sufficient to sustain a first degree murder conviction. However, there were errors committed by the trial court which call for reversal. We shall discuss those errors and, because of the probability of a new trial, comment on most of the other points advanced by appellant.

The court examined the jury on voir dire but first explained the nature of the charge, the degrees of homicide, and the punishment. Comment was made on the nature of the punishment for first degree murder in these words:

The law fixes the punishment at death by electrocution unless the jury finds that there ,are extenuating circumstances which would justify life imprisonment instead of the death penalty. If the jury does not find extenuating circumstances it simply returns a verdict of guilty of murder in the first degree, and then the law requires that the court pronounce the sentence. If the jury finds extenuating circumstances they will return a verdict of guilty and fix the punishment at life imprisonment in the State Penitentiary.

Bagley’s counsel timely objected (in chambers) to the statement as being a prejudicial misstatement of the law and requested that the court correct it in the presence of the jury. The court, in denying the request, took the position that its formal instructions which would follow the testimony would leave no doubt with the jury that it could “certainly return any verdict they see fit.”

The court told the jury that if the defendant was guilty of first degree murder the punishment was death by electrocution unless the jury found extenuating circumstances which would justify the substitution of a penalty of life imprisonment. Ark. Stat. Ann. § 43-2153 (Repl. 1964) says the jury “shall have the right” in all capital cases to fix punishment at life imprisonment instead of death. The statute contains no such words or phrases as “discretion” or “extenuating circumstances.” When the Legislature created two forms of punishment for first degree murder it did not create two grades of the offense; it merely created a choice of punishment, that choice to be made by the jury. The only responsibility imposed on the court is that the jury is to be advised of its duty to select which of the punishments shall be imposed. When the court so advises the jury it “has exhausted its powers in the premises, and any attempt on its part to go further and inform the jury that under certain circumstances it might impose death and under others life imprisonment would in effect usurp the prerogatives of the jury and be wholly improper.” Hernandez v. State, 32 P. 2d 18 (1934).

The State argues that if the trial court’s remarks were erroneous, it is not shown that those members of the panel who heard the remarks actually sat on the jury. We concede that it cannot be determined with certainty just which jurors heard the remarks but it is clear to us, after careful perusal of the record, that a majority of the jurors who tried the case heard the court’s statement about extenuating circumstances.

Additionally the State contends that any error was cured when the court explained the forms of verdicts and advised the jury to fill in the blanks as the jury saw fit. We cannot agree. The damage could have been removed only by an equally positive statement of correction. The court’s statement that extenuating circumstances must be produced to avoid the death penalty was clear and unequivocal; only a corrected statement of equal stature could have erased it.

Appellant contends that the court and prosecuting attorney, to appellant’s prejudice, propounded an unnecessary number of inquiries to prospective jurors concerning their views on capital punishment. We cannot say the court abused its discretion. Some repetition was necessary because the first list of jurors was exhausted and additional jurors were necessarily called. Had the proper objection been made it is possible that the court would have reduced to some extent the number of repetitions. The attitude of the jurors toward capital punishment was needed for two purposes. First there were the challenges for cause, based on the decision in Witherspoon v. Illinois, 391 U. S. 510 (1968). On the basis of Witherspoon, those jurors who would not consider returning a verdict of death could be removed for cause. Secondly, there was the responsibility of the prosecuting attorney for wisely making peremptory challenges. To so act he would naturally need to identify those jurors who had conscientious or religious scruples against the death penalty. Although Wither-spoon held that such general objections to the extreme penalty were not grounds for challenging for cause, it certainly did not restrict the prosecutor in considering those factors in evaluating his peremptory challenges.

The widow of the victim testified that at the time of her husband’s death she was pregnant and suffering from pneumonia. Appellant argues that the testimony was irrelevant and prejudicial. Clearly that testimony would only serve to arouse the sympathy of the jury. "We suggest that it be avoided on retrial.

In one of the instructions the trial court read to the jury Ark. Stat. Ann. § 41-2246 (Repl. 1964):

Burden of Proof. — The killing being proved, the burden of proving circumstances of mitigation, that justify or excuse the homicide, shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest, that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.

The giving of that instruction is asserted as error which allegedly calls for a new trial. The statute has been held to be applicable only where there is a claim of self-defense. Where the instruction is given in other cases we have said it is only a statement of an abstract proposition of law and may be harmless error. Wilson v. State, 126 Ark. 354, 190 S. W. 441 (1916); Easter v. State, 96 Ark. 629, 132 S. W. 924 (1910). We have also held that when an instruction based on § 41-2246 is accompanied by an instruction on presumption of innocence which goes with the defendant throughout the trial unless overcome beyond a reasonable doubt, any error in the reading of § 41-2246 is harmless. Brown v. State, 231 Ark. 363, 329 S. W. 2d 521 (1959). Yet, each case is governed by its own record and the law applicable to that record. The case before us is different in essential respects from the cited cases and the many other precedents concerning the application of § 41-2246. Here is the record upon which our disposition of appellant’s challenge is based:

It is important to note that Bagley was charged with a willful, premeditated, and deliberate killing, as opposed to a charge of murder while in the perpetration of robbery; had the latter charge been filed there could have been only the highest degree of homicide involved. No witnesses were called in Bagley’s behalf. Before the court read § 41-2246 to the jury, Bagley’s counsel objected (1) that the killing was admitted and there was no contention of mitigating circumstances, and (2) the instruction “amounts to a comment on the fact that the defendant has not testified in this case.” Under further instructions of the court, the jury was privileged to find Bagley guilty of first degree murder, second degree murder, or manslaughter. Since Bagley called no witness the instruction could have discouraged the jury from considering a verdict less than that of first degree murder. That was because the jury was told the defendant had a duty to come forward with proof of mitigating circumstances. Since Bagley stood silent, as of course he had a right to do, the jury could have given damaging weight to his inaction.

Appellant next attacks the constitutionality of two of our statutes, Ark. Stat. Ann. § 41-2227 and § 43-2154 (Repl. 1964). Respectively those statutes fix the death penalty for first degree murder and establish an alternate penalty of life imprisonment. It is argued (a) that the death penalty is allowed to be imposed by the jury without any guidelines and (b) that the jury which fixes guilt determines the punishment at the same time. Identical challenges to Arkansas law were raised in Maxwell v. Bishop, 398 F. 2d 138 (1968). The arguments were rejected by a unanimous court and we agree. Also, see Spencer v. Texas, 385 U. S. 554 (1967) for that court’s comment on two-part jury trials.

In his closing argument the prosecuting attorney discussed capital punishment as a deterrent to others similarly inclined. Defendant’s attorney contends he was improperly denied appropriate rebuttal when he was told he could not refer to certain statistics which he contended proved the death penalty was not a deterrent. We cannot say the trial court abused its discretion in that respect in that the statistics were not in the record nor were they asserted to be a matter of common knowledge. Furthermore, the defense attorney immediately argued the same point by a different approach and without objection.

Other points for reversal which are argued are without merit and a discussion of them would serve no useful purpose. We have examined other objections made in the record but not argued and find no error. The record does reveal one incident which requires comment because of a probable new trial. In the course of its deliberations the jury inquired “as to the minimum time that a man would have to serve if he was sentenced to a life sentence in prison.” The court explained that the question could not be answered because of the recent enactment of what was considered a complex new law difficult of interpretation; and because no statistics had yet been made available based on the new law. It would not have been improper for the trial court to respond to the question by an explanation of the law applicable to paroles; but the giving of statistics on the subject to the jury resulted in a reversal in Bell v. State, 223 Ark. 304, 265 S. W. 2d 709 (1954).

It is our conclusion that the case must be reversed and remanded for new trial. We are well aware of those many instances in homicide cases wherein error has been corrected either by reducing the punishment or by entering a conviction for a lesser degree of the charged offense; hut there are two reasons which, when combined, preclude those alternatives. First, the evidence here would clearly support a conviction of first degree murder; .and second, the error in giving an instruction based on § 41-2246 could well have influenced the jury to return the recorded verdict in lieu of a conviction for a lesser degree of homicide.

Reversed and remanded.

Holt, J., not participating.