author: Ernie E. Wright, Chief Judge.

text:
    BENTON SERVICE CENTER v. Valjean PINEGAR
    CA 80-119
    601 S.W. 2d 227
    Court of Appeals of Arkansas
    Opinion delivered June 18, 1980
    Released for publication July 8, 1980

      Jerry G. Jones, for appellant.

      Robert W. Garrett and Kali, Tucker, Lovell, Alsobrook & Moudy, for appellee.
   Ernie E. Wright, Chief Judge.

This is an appeal by the employer from the decision of the Workers’ Compensation Commission finding appellee sustained a totally and permanently disabling compensable injury, an acute myocardial infarction, in the course of his work on September 14, 1978.

The employer denied the claim as compensable and on appeal contends there is no substantial, competent and credible evidence to support the finding claimant’s heart attack was causally related to his work.

Claimant was employed as a security officer with the Benton Service Center of the Arkansas State Hospital and had been so employed for about fourteen years. His duty was to make security checks of the buildings, see that lights were out, coffee pots were off and doors properly locked. On September 14, 1978, he went to work at 3:00 o’clock p.m. and at 4:30 p.m. he and his co-worker began checking the buildings. During the course of checking the cold storage area of the last building, a cafeteria, he noticed a pain in his chest and shoulders, starting in his left arm. The pain persisted. At about 9:00 o’clock p.m. the claimant checked the administration building which contains four flights of stairs. Near completion of the inspection claimant’s pain was so bad that he had to sit down on the steps and he didn’t check the last two doors. Thereafter he remained in the security automobile, riding with his co-worker, until his shift was completed at approximately 10:00 to 10:15 p.m. He drove home and attempted to relax but was unable to do so. He was taken to the hospital in Benton and admitted to the coronary care unit. During the early part of his hospitalization he suffered cardiac arrest three times. He was discharged September 19, 1978.

Claimant was 61 years old at the time of his coronary attack and testified at the hearing held on April 20, 1979, before the administrative law judge that he remained physically unable to perform any type of work. The security work at the time of claimant’s heart attack entailed climbing up and down a considerable number of stairs in each of the ten buildings he was required to check. He testified he felt fine on September 14 when he left home for work and when he reported for work. He also testified he never previously experienced any indication of a heart attack.

After suffering cardiac arrest during his hospitalization appellant has experienced partial loss of vision, and upon examination by a specialist he was found to have a loss of the entire right side of his vision in both eyes which the specialist attributed to lack of oxygen to the brain during cardiac arrest.

Dr. Martindale who treated appellant for the heart attack stated, “This patient is now, & will continue to be, unable to be gainfully employed”. In his deposition Dr. Martin-dale testified that climbing stairs and exposure to cold are precipitating factors in heart attacks.

The history taken by Dr. Hogue, associate of Dr. Martindale, at the time of appellee’s admission to the hospital in the early morning hours of September 15, 1978, reflects appellant stated that when he awakened the previous morning he had severe cramping pain in his chest, and that it persisted all day and through the night; that he attempted to work that day but was unable to do much because of the intense pain; that he had some sweating during the day and attributed this to his usual lung condition. He stated the pain became so intense during the night of September 14 that he came to the hospital.

Appellant argues that appellee’s testimony given some eight months after the heart attack is in conflict with his -medical history given on admission to the hospital, and the history was given under such circumstances that it should be accepted as accurate. The hospital admission report contains indications the onset of chest pains occurred some twenty-four hours before admission to the hospital which is some evidence the heart attack occurred before appellee went to work. Appellant’s sworn testimony at the trial, however, indicates the heart attack symptoms were first experienced during the course of his work on September 14.

Appellant testified he thought the pain he was having in the earlier part of the day on September 14, 1978, was arthritis pain from which he had suffered since he was fourteen, and that the arthritis pain affected different parts of his body at different times.

The Commission evidently found appellant’s sworn testimony more convincing than statements attributed to him in the hospital admission history. It is the responsibility of the Workers’ Compensation Commission to weigh the evidence and determine the credibility of witnesses in compensation cases. On review the issue for this court to determine is whether there is any substantial evidence to support the Commission’s finding appellant’s heart attack arose out of his employment and resulted in permanent and total disability. Barksdale Lumber Company v. Me Anally, 262 Ark. 379, 557 S.W. 2d 868 (1977). The settled rule is that in determining whether there is substantial evidence to support the decision of the Commission, we consider only that evidence which is most favorable to the Commission’s finding. Where the evidence is conflicting it is for the Commission to determine the weight and credibility to be given to the evidence.

After carefully reviewing the evidence in light of the established rule for appellate review we conclude there is substantial evidence to support the Commission’s finding the heart attack occurred during the course of claimant’s employment, that it was causally related to his work and that it resulted in permanent and total disability.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Leroy VIAR v. STATE of Arkansas
    CA CR 80-12
    601 S.W. 2d 579
    Court of Appeals of Arkansas
    Opinion delivered June 18, 1980
    Released for publication July 8, 1980

      Jeff Duty and Charles E. Hanks and Wyman R. Wade, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

The appellant Leroy Viar was charged with battery in the first degree, and at trial was convicted by a jury of the lesser included offense of battery in the second degree, and a $2,000.00 fine was imposed. He appeals contending only for reversal the trial court erred in failing to instruct the jury on the meaning of the word recklessly.

The court’s instruction on battery in the second degree included the following:

A person commits Battery in the Second Degree if for the purpose of causing physical injury to another person; he causes serious physical injury to any person; or with the purpose of causing physical injury to another person, he causes physical injury to any person by means of a deadly weapon; or, he recklessly causes serious physical injury to another person by means of a deadly weapon.

Thereafter, the court’s instructions defined the terms serious physical injury and deadly weapon, but did not define the word recklessly. No request was made by appellant for an instruction defining recklessly.

Appellant argues it was error not to instruct the jury on the meaning of the word recklessly because it is a key element in the offense of battery in the second degree, and the word is defined in Ark. Star. Ann. § 41-203 (3) (Repl. 1977), the definition being as follows:

A person acts recklessly with respect to attendant circumstances or as a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

We find no valid basis for appellant’s contention. The instruction given properly set forth three sets of acts and circumstances any one of which constitutes battery in the second degree. Only one of these sets of acts and circumstances involve the word recklessly. There is no showing here that the jury necessarily found the appellant guilty under the section of the statute requiring the action to be done recklessly. Second, the word recklessly is not an obscure, vague or technical word outside the scope of the common understanding of the ordinary individual or juror. Therefore, even though there is a statutory definition in the Criminal Code we are not persuaded the precise definition is essential for the jury’s understanding of the charge of battery in the second degree. We believe an average individual or juror would ascribe substantially the same meaning for the word as contained in the statutory definition. Finally, if appellant desired that the word be defined in the instructions it was his duty to request such instructions. Bousquet v. State, 261 Ark. 263, 548 S.W. 2d 125 (1977); Hilliard v. State, 259 Ark. 81 (1976).

While it would have been in order for the court to define recklessly, we hold it was not reversible error for the court to fail to do so absent a request for such instruction.

Affirmed.


author:
Steele Hays, Judge.
      Marian F. Penix, Judge,

text:
    Roger GRAHAM v. Charles L. DANIELS, Director of Labor, and CARGILL, Inc.
    CA 79-374
    601 S.W. 2d 229
    Court of Appeals of Arkansas
    Opinion delivered June 18, 1980
    Released for publication July 8, 1980

      Truman H. Smith, for appellant.

      Thelma Lorenzo, for appellees.
   Steele Hays, Judge.

This is an unemployment compensation case. Claimant, Roger Graham, was employed by Cargill, Inc. to catch chickens in one of the floor houses owned by the employer. In August of 1979, claimant was suffering from asthma and bronchitis. His treating physician recommended that claimant be transferred to another area of employment so that he would not be exposed to extensive amounts of dust and dirt. Claimant’s employer changed his job assignment, and he moved from a job in the floor house to one in the plant. Still, claimant’s condition did not seem to improve. In a letter to the Board of Review, claimant stated that he coughed constantly. Claimant was then offered his former job catching chickens in one of the floor houses. Claimant accepted this work, although his doctor had advised against working in the floor houses until his condition improved. He worked at his former position from August 31 until September 11, 1979. Then, for two days, he did not go to work. On September 14, 1979, he went back to work but without a doctor’s sanction. Stating that he could no longer work in the floor house claimant quit his employment. His supervisor then took him home.

The Agency determined that claimant should be disqualified under Section 5(b)(1) of the Arkansas Employment Security Law which provides for disqualification for claimants discharged from their last work for misconduct connected with the work. The Appeals Tribunal modified the determination of the Agency, stating that claimant was disqualified for unemployment benefits under Section 5(a) of the Arkansas Employment Security Law which provides a disqualification for claimants who have quit their last work without good cause connected with the work. However, this section also provides that no claimant shall be disqualified because of voluntarily leaving due to illness if he made reasonable efforts to preserve his job rights prior to quitting. Nevertheless, the Appeals Tribunal found that claimant failed to preserve his job rights before quitting, since he did not request another job. The Board of Review affirmed the finding of the Appeals Tribunal. Claimant brings this appeal from the Board of Review’s decision.

We find that there is no substantial evidence to support the Board of Review’s finding that claimant failed to preserve his job rights. Claimant worked in the floor houses until a doctor recommended that he work in another area of employment. He then worked in the plant where his respiratory condition did not improve. Claimant was offered his former job again and although he felt his condition would get worse at his old job, it was still preferable to working in the plant. Claimant worked there as long as he could. We do not believe that Section 5(a) should be interpreted as requiring claimant to request alternative work before he can collect unemployment benefits. Claimant testified that when he went back to the floor house on September 14, he told his supervisor that he could not work at the floor house any longer. His supervisor stated that he had no more jobs available and claimant quit of necessity.

The Employment Security Act is designed to protect the employee from his becoming unemployed through no fault of his own. Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978). The Act is remedial in nature and must be liberally construed in order to accomplish its beneficient purpose. Garrett v. Cline, 257 Ark. 829, 520 S.W. 2d 281 (1975).

In the case at bar, we believe that claimant has become unemployed due to his respiratory disease. We can not hold that Section 5(a) should be so strictly construed as to require claimant to request alternative work when he has already been told that there were no more openings. This point is further supported by the fact that the employer put claimant back in his former position after he expressed dissatisfaction with his job in the plant.

For these reasons, we reverse the decision of the Board of Review.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. Our role is not one of fact finding. The Appeals Tribunal, in a decision affirmed by the Board of Review, determined the claimant is disqualified from benefits under Section 5(a) because he left his last work because of his illness without making reasonable efforts to preserve his job rights.

The employer offered the claimant work in the plant because catching chickens aggravated his asthmatic condition. He worked in the plant two days, didn’t like it, and left. The employer allowed claimant to return to chicken-catching. He worked a week and two days and then was absent because of illness for two days. He returned without a doctor’s excuse. The doctor’s excuse was a requirement of the employer. He did not call in sick nor inform his employer he would not be at work. He testified his doctor told him not to return to the chicken-catching job. He further testified he “didn’t like the plant at all.” (the plant being the alternative job offered). The employer testified the claimant did not request to go back to the plant the second time. The Referee asked the claimant:

Okay, I’m talking about that day. Did you ask to go back in the plant?

The claimant replied:

. . . and no he’s right, I didn’t ask nothing about a job in the plant.

The employer further testified:

Ah, I’ve just got one final comment is the morning that he did leave, and did he come back and he visited with me and ah, you know, we tried to use him in the plant and he just walked out, it was his decision, you know, I’ve got to get along with those people too. And I said Roger what are you going to do now and he said I’m going to work on my old car and draw my unemployment and I didn’t have any other word, I just let it drop at that.

I find substantial evidence to support the Board of Review’s determination the claimant is disqualified. This being so, it is our responsibility to affirm the Board’s decision. Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978).

I respectfully dissent.

I am authorized to state that Chief Judge Wright joins in this dissent.


author: Steele Hays, Judge.

text:
    Q. Byrum HURST, Jr. v. Margaret HURST
    CA 80-12
    602 S.W. 2d 137
    Court of Appeals of Arkansas
    Opinion delivered June 18, 1980
    Released for publication July 8, 1980

      John T. Harmon, of Harmon & Madden, and Thomas M. Carpenter, of Lessenberry & Carpenter, for appellant.

      House, Holmes & Jewell, by: Annie E. Owings, for appellee.
   Steele Hays, Judge.

Appellant brings this appeal seeking to reverse a modification by the Chancellor of a separation agreement in a divorce suit entered into between the parties on August 30, 1978. The separation agreement was incorporated by reference in a decree of divorce entered September 1, 1978.

On August 28, 1978, the appellant wrote a letter to the appellee confirming an oral agreement (purportedly supplemental to the separation agreement), which recited that the appellee could use the membership in the Hot Springs Country Club, particularly for the children’s recreation (though not for her own personal benefits); stating that appellant would assist appellee with additional financial payments of not less than $50.00 nor more than $100.00 per month to help with “utility bills, etc.”\ that appellee would have the use of a gasoline credit card and reciting other provisions not essential to this opinion.

The essential elements of the separation agreement provided that the appellant would pay $125.00 per week to appellee for the support of three minor children, together with temporary alimony in the sum of $539-85 per month until the parties’ residence could be sold, at which time the child support would be $300.00 and alimony would be $500.00 per month so long as appellee remained unmarried. The agreement contained provisions for a sale of the parties’ residence with the appellee to receive not less than $15,000.00 as her equity; and the appellant would pay “all bills incurred by the parties to date” and would be responsible for “any medical or dental bills incurred by the minor children”. Other provisions are not particularly relevant to the issues on appeal.

In December, 1978, appellant wrote appellee that after January 1, he would no longer pay any amounts to appellee except as ordered in the divorce decree. On February 26, 1979, the appellant notified the appellee by letter that he was exercising his right under the agreement to purchase appellee’s interest in the home and announcing that he would tender a cashier’s check in the sum of $15,000.00 on March 1, 1979- The letter stated that appellee would have until April 15 to vacate the dwelling.

On February 27, 1979, appellee filed a petition alleging that at the time the property settlement agreement was entered into the appellee was induced to sign the agreement against her will and that appellant represented to appellee that he was willing to undertake obligations beyond those in the agreement but that subsequently the appellant denied any further obligation; that the written agreement approved by the court did not correctly reflect the agreement between the parties and was entered into as a result of fraud. Alternatively, appellee sought modification of the terms of the decree and claimed an arrearage in alimony payments of $3,-239-10. The appellant denied the allegations of the petition and by counter-petition asked for a specific enforcement of the sale of appellee’s interest in the home to appellant upon his tender of the sum of $15,000.00.

The case was tried on May 28, 1979, at the close of which the Chancellor made an extensive and detailed entry on the docket finding that appellee had failed to show that the agreement was procured by fraud but found that the agreement was modified by the letter of August 28, 1978 and by “other oral statements”; that the alimony payments of $539-85 were satisfied by the mortgage payments and consequently no arrearage in alimony existed; that appellee should sign a quitclaim deed to the dwelling and receive $15,000.00 therefor and appellant would pay $200.00 per month child support, tuition for a private school, $75.00 a month for utility bills and $75.00 per month for gasoline bills, both sums to be considered as child support. The court directed appellee’s attorney to prepare the decree and fixed a fee of $3,600.00 for appellee’s attorneys to be paid one-half by appellant and one-half by appellee.

The modified decree was prepared, approved and signed by the Chancellor on June 29, 1979, and entered nunc pro tunc as of May 28, 1979- Notice of appeal was filed by appellant on August 1, 1979-

Before dealing with appellant’s arguments on appeal, appellee contends that the notice of appeal was not timely filed. The argument is that the judgment was entered on the docket on May 28, 1979 and inasmuch as the notice of appeal was not filed until August 1, 1979, considerably more than thirty days had elapsed between the docket entry and the notice of appeal. Appellee’s brief cites Cranna v. Long, 225 Ark. 153, 279 S.W. 2d 828 (1955) stating that the time for filing notice of appeal runs from the date on which the judgment is filed for entry with the clerk. However, in oral argument, appellee contends that where, as here, the court enters its order on the docket at the close of a hearing, which counsel for both sides observed, then the time for filing notice of appeal runs from the entry on the docket and not from the time the judgment is filed with the clerk. We find the argument to be without merit. In the first place, the court’s own docket entry recites that appellee’s counsel would prepare the decree thus challenging the argument that both sides were under the impression that the docket entry was to be the final and only judgment in the case. Secondly, the decision in Cranna v. Long states plainly that the crucial date is the date the judgment is filed with the clerk. Rule 3(b) of the Rules of Appellate Procedure, which became effective on July 1, 1979, recites: “An appeal shall be taken by filing a notice of appeal with the clerk of the court which entered the judgment, decree or order from which the appeal is taken,” Rule 4(a) recites, in part, that a notice of appeal “shall be filed within thirty days from the entry of the judgment, decree or order appealed from.” Cranna v. Long, supra, although decided in 1955, interpreted Section 2 of Act 555 of 1953 (containing language almost identical to that of Rule 4[a]) by construing the words “entry of the judgment or decree appealed from” as meaning the filing of the judgment with the clerk for entry. To the same effect see Northly v. Northly, 223 Ark. 751, 268 S.W. 2d 357 (1954). There is nothing to indicate any departure from the well-established view of fixing the time for filing notice of appeal from the date on which the judgment, decree or order is filed with the clerk was intended by the language of Rule 3. Thus, appellee’s arguments that the appeal should be dismissed are lacking in merit.

Returning to appellant’s arguments on appeal, two points are asserted: first, that the Chancellor erred in modifying the decree and two, that the Chancellor erred in awarding an excessive fee to appellee’s counsel.

I.

The appellant contends that the agreement between the parties was an independent contract incorporated into the decree of divorce and approved as such by the court, that under the rule announced in Lively v. Lively, 222 Ark. 501 (1953) and other decisions of the Arkansas Supreme Court, an agreement of this type cannot be modified or that if it is not an independent contract, its incorporation in the decree makes it modifiable only on a showing of changed circumstances, which he insists are not present. See also Pryor v. Pryor, 88 Ark. 302 (1908), and Backus v. Bachus, 216 Ark. 802, 227 S.W. 2d 429 (1950). The appellee does not confront this argument, preferring to argue that the modification was based not upon changed circumstances, but rather upon a finding that the parties themselves had modified the written agreement both verbally and in writing. We agree with appellee, in part, that some modification of the agreement was made by the parties themselves; however, the question before us is whether the Chancellor has properly modified the decree. To find his modification of the child support aspect was correct, there must be evidence in the record of changed circumstances as required by numerous decisions of the Arkansas Supreme Court.

Appellant contends that the changed circumstances which are essential to modification should be in the form of increased or decreased earnings by one parent or increased expenses by the other and while this is very often the case, nowhere do we find in the numerous decisions on the subject, that these considerations alone merit an increase or decrease in child support. To the contrary, the courts have considered a very wide range of circumstances in dealing with the question of modification ranging from remarriage by one parent [Barnes v. Barnes, 246 Ark. 624, 439 S.W. 2d 37 (1969)] to the absence of good faith by the father in furnishing information regarding his financial affairs (Toebe v. Toebe, 30 N.W. 2d 585). Indeed, Corpus Juris Secundum, Vol. 27(b), Section 322(1) p. 680, describes the power of the court to modify child support as being “broad”:

The broad powers of a court to revise and alter an order or decree concerning the support and maintenance of children, and to make new orders as the circumstances of the parent and the interests of the children may require, usually exists by reason of statute.

In short, no clearly defined set of circumstances emerges from the decisions as being essential to a modification, the decisions simply allude to the requirement that modification may be made upon changed circumstances. In some instances, as in Haney v. Haney, 235 Ark. 60, 357 S.W. 2d 196 (1962), the Supreme Court has declined the question of whether there must first be a finding of changed circumstances before the Chancery Court can modify the

amount of child support, preferring simply to weigh the increased amount allowed by the court against the degree of change. In Haney, the trial court had ordered an increase from $200.00 per month to $275.00 per month which the Supreme Court reduced to $225.00 upon the theory that the circumstances had not changed that greatly. It seems fair to say from our inspection of these decisions that when the child support has been reduced by way of modification, the Supreme Court has been apt to scrutinize the record for clear change of circumstance but less inclined where an increase in child support has occurred. This, no doubt, is attributable to the thread that runs through the entire fabric of the law, i.e., that it is the best interest of the children that must be served by the modification. Reiter v. Reiter, 225 Ark. 157, 278 S.W. 2d 644 (1955). The writers of Corpus Juris Secundum, Vol. 27(b) Section 322(2) p. 699, state that:

“. . . in determining whether a provision should be modified all relevant circumstances should be considered, although the controlling factors are the needs and the ivelfare of the child or children, and the financial circumstances or ability of the parent.”

Thus we conclude that the state of the law in this area may be said to be in Arkansas that the Chancery Court has broad power to modify a provision for child support where it finds a modification to be in the best interest of the children and no hard and fast rule can be laid down concerning the specific nature of the changed circumstances or the degree thereof. We regard this general statement as entirely consistent with the rule expressed in Collie v. Collie, 242 Ark. 297, 413 S.W. 2d 42 (1967), and Shue v. Shue, 162 Ark. 216 (1924), to the effect that whether a modification of child support is justified by changed circumstances is within the sound discretion of the Chancellor.

Turning now to the record before us in the light of the foregoing commentary, we think there is an adequate basis for the modification. In the first place it is quite clear from the testimony of both parties that repeated assurances were made by the áppellant to the appellee respecting his intentions to provide for her beyond the strict letter of the separation agreement. Numerous portions of the record support this statement. Appellant argues that such a holding would inhibit a parent from making voluntary, gratuitous contributions to the support of children and would be inimical to the welfare of dependent children of divorced parents. While this argument may have some merit in cases in which the contributions are clearly gratuitous, it overlooks the fact that in this case the contributions were not only made but were accompanied or preceded by representations to the appellee that she could expect and count on such contributions. The latter element, we believe, provides a signficant difference from those cases in which one parent simply provides voluntary contributions above those required by the decree. It must be remembered that appellant was a practicing attorney and while appellee may have had the benefit of independent legal advice, she testified: that appellant assured her during the negotiations that he “would watch out for my best interest”; that appellant prepared the pleadings and property settlement agreement; that the parties met directly and frequently during negotiations; that appellant informed her that he would give appellee and the children “much more than the court would grant us” and that if she went to court she would receive less than under the settlement agreement. She further stated that appellant assured her that he would give her “a greater amount of child support” than provided in the agreement and “more alimony than we had agreed upon.”

The appellant’s own testimony confirms the fact that appellee was relying on verbal assurances made to her by the appellant and that he intended that she do so, as he testified that during negotiations he told the appellee that she was receiving more benefits by negotiating with him than if she “went into court” and that he believed that to be the fact. Additionally, he testified that “I probably told her that I would continue to pay her expenses and payments to her outside the property settlement agreement.” Appellant’s counsel insists that such oral statements and, indeed, even the contents of the letter of August 28 were entirely gratuitous and not intended to be treated as part of the separation agreement. Such characterization is not consistent with the language of the letter itself, which is expressly supplemental to the separation agreement. We think it clear that under all the circumstances, appellee had a right to rely on the promises made by the appellant as well as his performance thereof. The appellant’s pattern of support after the agreement had been entered may be a “changed circumstance” in itself. We might also consider his abrupt change in that pattern and insistence upon limiting his support to that provided in the original agreement as changed circumstances as well.

Appellant argues that his net earnings were less than previous, hence a reduction in child support would have been in order. But that is not demonstrated in any reliable fashion. The several financial exhibits in the record reflect gross receipts by the appellant of $204,739 for the fiscal year ending June 30, 1978 and while there is admittedly some confusion as between appellant’s earnings and client’s accounts, it is clear that appellant withdrew amounts exceeding $4,000 per month for his own use. Significantly, nowhere did the appellant testify that his earnings were reduced, indeed, he discussed earnings not at all. In view of appellee’s testimony that her expenses totalled $1,358.42, we cannot find that the amount as modified for child support constitutes an abuse of discretion by the Chancellor.

Thus, we conclude that the circumstances as a whole and the needs and best interests of the children are such that it was not error for the court to modify the child support payments as it did.

II.

Appellant also argues that it was error for the court to allow a fee of $3,600.00 to appellee’s attorneys, although appellant acknowledges that the allowance and the amount of attorney’s fees are within the sound discretion of the trial court and are not subject to review except upon a showing of an abuse of discretion. Johnson v. Johnson, 240 Ark. 657, 401 S.W. 2d 213 (1966). After reviewing the record, which is sizable, and noting that the fee was equally divided between appellant and appellee, we are unable to conclude that the fee was excessive and subject to reduction. Appellant argues that $3,600.00 for a single day in court is of itself excessive. However, interrogatories were filed, dispositions were taken, financial documents were examined, and motions for continuances and supporting briefs prepared and filed. Beyond what the record suggests in the way of time and preparation, the Supreme Court has often pointed to other factors to be considered in arriving at the determination of fees. An extensive review of fees in domestic relations cases appears in Lytle v. Lytle, 266 Ark. 128, which reaffirms that the allowance of fees is within the sound judicial discretion of the Chancellor, the exercise of which will not be disturbed on appeal in the absence of abuse. We find nothing to suggest any abuse in connection with the fee allowed and regard it as being entirely reasonable in the light of the fact that the appellant’s share amounted to only $1,800.00. The final answer, obviously, is that the Chancellor was in a far better position than this court to determine the appropriate amount and it has not been demonstrated to us that any abuse of discretion is present.

There is one area in which the court below seems to have inadvertently exceeded the agreement even as modified between the parties, and that relates to the provision that “should Margaret Hurst remarry or live with an unrelated male or obtain a full-time job at least nine months a year, the $75.00 items (referring to gasoline and utilities) will be reduced by 50%.” However, we note that the August 28 letter contains a provision that in the event appellee should remarry or cohabit, all benefits except child support would terminate, which provision was acceptable to the parties and ought not, therefore, be modified by the court. The order is modified by eliminating the quoted proviso.

Affirmed as modified.


author: James H. Pilkinton, Judge. Steele Hays, Judge,

text:
    J. & G. CABINETS, Employer; ST. PAUL INSURANCE CO., Insurance Carrier v. Tony HENNINGTON, Employee
    CA 80-77
    600 S.W. 2d 916
    Court of Appeals of Arkansas
    Opinion delivered June 18, 1980
    Released for publication July 8, 1980

      Davis, Bassett, Cox & Wright, for appellants.

      Evans, Ludwig & Evans, by: James E. Evans, Jr., for appellee.
   James H. Pilkinton, Judge.

This workers’ compensation claim involves an injury which occurred during appellee’s lunch hour. The issue presented on appeal is whether, upon the record, appellee’s injury could properly be found to have arisen out of and in the course of the employment.

The material facts in this case are not in dispute. Appellant J. & G. Cabinets was in the business of manufacturing wood cabinets at Springdale, Arkansas, and Tony Hennington, a high school senior, was employed on a part-time basis under a work-study program. J. & G. Cabinets allowed the employees to use the shop machines during breaks for meals, and at other periods on the employees’ own time.

Hennington worked a split shift from 1:45 p.m. to 9 p.m., with an hour off for an evening lunch from 5 p.m. to 6 p.m. On September 27, 1978, appellee used his meal break to cut out a gun stock for his personal use. While using the appellant’s saw, appellee sustained an injury to his right index finger. Appellants denied a claim for workers’ compensation benefits contending the injury did not arise out of and in the course of his employment. A hearing was held before an administrative law judge who found appellee’s injury did arise out of and in the course of his employment. On appeal, the Worker’s Compensation Commission affirmed and adopted in full the findings, conclusions and award of the administrative law judge. The appellants have appealed from the decision of the Commission. The sole issue here is whether there is substantial evidence to support the finding and award of the Arkansas Workers’ Compensation Commission that appellee’s injury arose out of and in the course of employment with appellant J. & G. Cabinets.

It is undisputed that when the appellee was injured he was engaged in a project of his own during his evening lunch hour. He was, however, on his employer’s premises, and using his employer’s machinery and electricity in an enterprise which had been expressly permitted by the employer; and which was consistent with the customary practice of the employer to allow employees to use the shop equipment on personal projects.

The evidence shows that the appellee was hired under a work-study program, and that it was understood he was expected to become familiar with the operation of various machines in the establishment. The Commission found that although appellee was not required to remain at his place of work during the lunch break, by voluntarily doing so he continued to be under the guidelines of his employment relationship; and that he was injured as a result of the use of equipment furnished and controlled by the employer. It is clear that appellee had permission to use the shop tools for the purpose involved.

For reversal appellants rely on Robbins v. Jackson, 232 Ark. 658, 339 S.W. 2d 417 (1960) and West Tree Service, Inc.v. Hopper, 244 Ark. 348, 425 S. W. 2d 300 (1968). Those cases are distinguishable from the one before us on the facts. It is at once apparent that the circumstances which prevented recovery in Robbins v. Jackson, supra, and West Tree Service v. Hopper, supra, are not present in the case before us. Also here the Commission made factual findings in favor of the claimant. The elements mentioned in the West case as necessary before a claim of this type could be considered compensable are shown by the evidence to be present in the case before us. See Lofland Co. v. Simpkins, 247 Ark. 850 at 853, 448 S.W. 2d 39 (1969).

Activities of a personal nature, not forbidden but reasonably to be expected, may be a material incident of the employment and injuries suffered in the course of such activities are compensable. The fact that the injury is suffered during a lunch break, when the employee is not required to be on the premises, does not alter this principle. The controlling issue is whether the activity is reasonably expectable so as to be an incident of the employment, and thus in essence apart of it. Maheaux v. Cove-Craft, Inc., 103 N.H. 71, 164 A. 2d 574 (1960).

A claimant before the Workers’ Compensation Commission must prove that the injury sustained was the result of an accident arising out of and in the course of employment. The phrase “arising out of the employment” refers to the origin or cause of the accident and the phrase “in the course of the employment” refers to the time, place, and circumstances under which the injury occurred. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E. 2d 570. In order for an injury to arise out of the employment, it must be a natural and probable consequence or incident of the employment and a natural result of one of its risks.

There is substantial evidence here to support the Commission’s finding that the appellee’s injury “arose out of’ his employment for compensation purposes since the injury resulted from a risk to which the appellee’s employment exposed him. The further determination of the Commission that the injury occurred “in the course of’ the appellee’s employment was also warranted by the evidence. The testimony in this case not only shows that the use appellee was making of the employer’s machinery was known to the employer and was a permitted use, but also that under the terms upon which the appellee was hired it was a use encouraged by the employer as a condition of the employment. See An-not., 161 A.L.R. 1461; 1A Larson, 'Workmen’s Compensation Laiv, § 27.31(b). So the employer here not only authorized the use of the shop equipment by the employees but actually encouraged it. It was something that almost all employees took advantage of and was not unusual or peculiar to this particular claimant.

On this record there is evidence to support the Commission’s conclusion that appellee’s activities in this case were such which could not “rightly be called a leaving of the employment.” Maheux v. Cove-Craft, Inc., supra; 1A Larson, Workmen’s Compensation Law, § 20.20.

Appellant argues that the practice of the employer in letting employees use the shop equipment was for the benefit of the employees only, and did not ensue to the benefit of the employer in any manner. The employer testified that it was hard to keep employees, good or bad. He said that the policy of letting employees use the shop equipment on their own time would possibly help him retain an employee that he would otherwise lose. The question of benefit to the employer may be a close one. In fact, this whole case presents a close question of causation. But be that as it may, it seems to us that the benefits, if any, to J. & G. Cabinets, the employer, and the nearness or remoteness of the employment as a cause of this injury, were matters of fact the determination of which rested with the Commission. Williams v. Central Flying Service, Inc., 236 Ark. 709, 368 S.W. 2d 87 (1963). The Workers’ Compensation Commission found that this accident did arise out of and in the course of the employment. As we find substantial evidence in the record to support this determination, it is our duty to affirm.

In deciding this case we do not enunciate a set of rules that will be applicable to all so-called “lunch break” cases. In affirming the decision of the Arkansas Workers’ Compensation Commission, we simply hold that, under the circumstances of the present case, there is ample evidence in this record to support the finding of the Commission that the injury sustained was the result of an accident arising out of and in the course of employment.

Affirmed.

Hays, J., dissents.

Steele Hays, Judge,

dissenting. I respectully dissent. I would reverse this case as I cannot agree that an employee who injures himself by working on his own time, for his own aims and diversions, in which the employer has no conceivable interest or benefit, can be said to have incurred an injury arising out of and in the course of his employment. No advantage in any real sense was derived by the employer from the activity of the employee at the time of his injury so as to enable one to say that the ends of the employer were somehow served. It is not even contended that the employee acquired greater skill by his off-time use of the machinery so that the employer would have ultimately benefitted by the increased skill of the employee.

The end result of such a holding is that employees could lose some of the benefits they may now enjoy, as employers will presumably be more likely to preclude any permissive use of company facilities rather than undergo additional risk of injury.


author: James H. Pilkinson, Judge.

text:
    WILLIS JOHNSON COMPANY v. Charles L. DANIELS, Director of Labor and Ralph ROGERS
    E 80-17
    601 S.W. 2d 890
    Court of Appeals of Arkansas
    Opinion delivered June 18, 1980
    Released for publication July 8, 1980

      Appellant, pro se.

      Herrn Northcutt, for appellees.
   James H. Pilkinson, Judge.

The appellee, Ralph Rogers, was discharged by his employer, Willis Johnson Company, Inc., the appellant. Subsequently, Mr. Rogers filed a claim for unemployment benefits, which the employer contested. The Agency denied benefits to the appellee under the provisions of Section 5(b)(1) of the Arkansas Employment Security Act holding that he had been discharged from his last employment for misconduct in connection therewith. The employee appealed, and the Appeal Tribunal reversed the determination of the Agency and allowed Mr. Rogers unemployment benefits. On appeal from that decision, the Board of Review affirmed the determination of the Appeal Tribunal. The employer has now appealed to this court from the decision of the Board of Review allowing appellee unemployment benefits. Appellant contends that Mr. Rogers should be denied benefits under the provision of Section 5(b)(1) [Ark. Stat. Ann. § 81-1106(b)(1) (Repl. 1976)] as he was discharged from his last employment for misconduct within the meaning of the law.

The sole issue before this court is whether there is substantial evidence in the record to support the decision of the Board of Review. We are not permitted to hear the case de novo.

The record shows that there were three separate hearings held before the Appeal Tribunal. Evidence was taken on November 14 and December 13, 1979, in Fort Smith, Arkansas, where the employee lived. Evidence was taken at Little Rock, Arkansas, on November 28, 1979, where the employer has its offices. The testimony shows that appellee-claimant had worked for the appellant-employer as a route salesman for approximately four months before he was discharged in July, 1979- Although he performed sales work, he was paid on a straight salary basis and was required to work a forty-hour week. The evidence submitted by the employer indicates the discharge was because Mr. Rogers would not adhere to a prescribed itinerary. The evidence, on behalf of the appellant, stressed that it was very important for Mr. Rogers to contact potential customers in the morning hours. The employer claimed that from time to time Mr. Rogers would not get to work at an early enough hour. The employer further contended that the claimant misrepresented information as to his daily stops by falsifying the log he was required to keep.

The record shows that the claimant acknowledged there were some mornings when he did not get an early start, but he said this was almost always with the full knowledge of his immediate supervisor in the Fort Smith area. Mr. Rogers further admitted that there were misrepresentations on his daily reports. He sought to justify this inaccurate data by saying that these reports were filed with the full and complete knowledge of his supervisor. The claimant also said that even the retail sales manager of the employer had mentioned that the daily logs were often misrepresented because the procedures used in completing them were somewhat outmoded and impractical. Claimant further contended that the sales work he was doing often called for irregular hours, but he felt that throughout his employment he had in fact worked forty hours a week. It was his position that he was doing a very satisfactory job for his employer. He claims that the reason originally given for his discharge was that he had too many outside interests. The employer acknowledged that when the claimant worked he performed his job very well.

The evidence at the hearing was contradictory. The Board of Review found that according to the greater weight of the evidence the claimant generally performed his work to the best of his ability and that he did not knowingly or willingly act in any manner against the best interest or welfare of his employer. The Board of Review determined that the appellee was discharged from this last employment for the convenience of the employer, and for reasons other than misconduct in connection therewith within the meaning of the law.

Ark. Stat. Ann. § 81-1107(d)(7) states:

... In any proceeding under this subsection the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said Court shall be confined to questions of law.

That has been amplified by case law:

... In a proceeding of this kind the Board’s findings of fact are conclusive if supported by evidence; which of course means substantial evidence. Terry Dairy Products Company, Inc. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955).

Like the decision of any other administrative tribunal, decisions of the Board of Review are reversible on appeal to the courts only if they are found to be arbitrary, capricious, unreasonable, and without substantial evidence to support them or in cases of fraud or corruption. City of Fort Smith v. Southwestern Bell Tel. Co., 220 Ark. 70, 247 S.W. 2d 474 (1952).

In the recent case of Harris v. Daniels, et al, 263 Ark. 897, 567 S.W. 2d 954 (1978), the Arkansas Supreme Court stated:

In appellate review . . . we must give the successful party the benefit of every inference that can be drawn from the testimony, viewing it in the light most favorable to the successful party, if there is any rational basis for the board’s findings based upon a substantial evidence, (cases cited). Even though there is evidence upon which the Board of Review might have reached a different result, the scope of judicial review is limited to a determination whether the Board could reasonably reach its results upon the evidence before it and a reviewing court is not privileged to substitute its findings for those of the board even though the court might reach a different conclusion if it had made the original determination upon the same evidence considered by the Board, (cases cited). Even if the evidence is undisputed, the drawing of inferences is for the board, not the courts. Kessler v. Industrial Commission:, 27 Wis. 2d 398, 134 N.W. 2d 412 (1965).

Section 5(b)(1) of the Employment Security Law 'is codified at Ark. Stat. Ann. § 81-1106(b)(1) and reads as follows:

81-1106. Disqualification for benefits — For all claims filed on and after July 1, 1973, if so found by the Director, an individual shall be disqualified for benefits:
# # #
(b) Discharged for misconduct. If he is discharged from his last work, for misconduct in connection with the work, such disqualification shall be for eight (8) weeks of unemployment as defined in subsection (i) of this section . . .

At 76 Am. Jur. 2d, Unemployment Compensation, § 52, it is stated at pages 945-946:

. . . misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employees, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.

Mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, ordinary negligence or good faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless it is of such degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer’s interests or of an employee’s duties and obligations. 76 Am. Jur. 2d, Unemployment Compensation, § 54.

In keeping with the declaration of the state public policy of providing benefits to workers who are unemployed through no fault of their own as set forth in the Arkansas Employment Security Law (Ark. Stat. Ann. § 81-1101 et seq), the statutory misconduct provision of the Law must be given an interpretation in keeping with that declared policy. Little Rock Furniture Mfg. Co. v. Commissioner of Labor, 227 Ark. 288, 291, 298 S.W. 2d 56 (1957). It should not be so literally construed as to effect a forfeiture of benefits by an employee except in clear instances of misconduct. 76 Am. Jur. 2d, Unemployment Compensation, § 52.

On the record before us, it might well be argued that the appellee’s misrepresentations of data on the daily logs and reports which he was required to keep constituted clear instances of misconduct within the meaning of the law. Certainly in the business world any misrepresentations of the nature admitted by this employee are serious. Even though the procedures used in completing daily logs may have seemed somewhat outmoded and impractical, as appellee claims, this would not justify an employee in falsifying reports which were required by the employer and considered by management to be necessary, current and practical. If this court was entitled to make the original determination of this case upon the same evidence considered by the Board of Review, we would probably reach a different conclusion and hold that this employee was not eligible to receive unemployment benefits; however, we are not privileged to substitute our findings of fact for that of the Arkansas Employment Security Board of Review. Even where the evidence is undisputed, the credibility of witnesses and the drawing of inferences is for the Board of Review, not the courts. Harris v. Daniels, supra, and cases there cited. In the case before us, the Board accepted and believed the explanations and excuses given by Mr. Rogers for his admitted questionable activities. The Board of Review found as a matter of fact that appellee generally performed the work to the best of his ability and did not knowingly or willingly act in a matter against the best interest or welfare of his employer. While it may be hard for us to understand how the Board of Review could reach the conclusion it did, we are bound by the decision of the Board as we cannot say there is no substantial evidence in the record to support the decision. As noted, the evidence was in conflict, and although that part of it which supports the appelleeclaimant is strongly disputed by the appellant-employer, we cannot say there was no substantial evidence to support the result reached by the Board of Review. Therefore we must affirm.

Hays, J., dissents.


author: David Newbern, Judge.

text:
    ADDISON SHOE COMPANY v. Charles L. DANIELS, Director of Labor, State of Arkansas
    CA 79-357
    600 S.W. 2d 919
    Court of Appeals of Arkansas
    Opinion delivered June 18, 1980
    Released for publication July 8, 1980

      Charles W. Reynolds, for appellant.

      Herrn Northcutt, for appellee.
   David Newbern, Judge.

Calvin E. Robinson worked for the appellant at Wynne, Arkansas. He left his employment and moved to Kansas City, Missouri, where he filed for unemployment compensation benefits. A hearing was held by the Missouri Board of Review, and the record of that hearing was forwarded to the Arkansas Board of Review for decision. In giving notice to the appellant, the Missouri Board stated the following:

INSTRUCTIONS TO EMPLOYERS
The claimant has filed an appeal against a decision made by another State concerning his claim for unemployment benefits. This hearing has been scheduled in Missouri in order to give the claimant and any interested Missouri employers an opportunity to present their evidence at a place conveniently located near their residence. The record of this hearing will be sent to the liable State (the State against which the claimant is appealing). There a tribunal will hold any other hearing that may be necessary and decide the appeal.
# # #
TO EMPLOYERS OUTSIDE MISSOURI: The hearing held in this State is in addition to any other hearing which may be scheduled on this appeal by the liable State. Your attendance at this hearing or your failure to attend will not in any way affect your right to receive a notice of hearing in the liable State and to appear at such hearing, (emphasis supplied).

Although we find no statutory provision requiring that a further hearing be held in Arkansas at which the appellant may present evidence, our opinion is that administrative due process requires that the appellant have that opportunity. Even if it be said that the appellant could have appeared at the Missouri hearing of which it had notice, we believe this appellant was misled into assuming it would have an opportuniy to present its evidence later.

The appellee agrees the case should be remanded to the Arkansas Board of Review so that the appellant may present its evidence.

Reversed and remanded.


author: Warren Wood, Special Judge.

text:
    Herbert HATFIELD et ux v. MIXON REALTY CO. et al
    CA 80-57
    601 S.W. 2d 894
    Court of Appeals of Arkansas
    Opinion delivered June 18, 1980
    Released for publication July 8, 1980

      William Russell Gibson, of Pettus & Johnson, for appellants.

      Hartman Hotz and Donn Mixon, for appellees.
   Warren Wood, Special Judge.

The basic facts resulting in this litigation were stipulated to by counsel and can be summarized as follows: In the month of September, 1969, Rosa Marinoni entered into a land sale and escrow agreement with Herbert Hatfield involving property located on College Avenue in Fayetteville, Arkansas. Under the agreement Hatfield was to pay seller the sum of $53,000 — $3,000 of which was a down payment, with the balance of $50,000 to be paid in 120 monthly installments plus interest. Mcllroy Bank & Trust Company was named escrow agent to receive the monthly payments, and when the balance was paid in full, was to deliver an executed warranty deed and abstract of title to Mr. Hatfield.

On the 9th day of February, 1972, Mr. Hatfield and wife contracted to sell the College Avenue property to H. D. Mix-on and Carolyn M. Whatley for a consideration of $75,000, to by paid by a down payment of $15,000; payment of $22,-083.43 in monthly installments directly to the Seller, and a balance of $37,916.57 to be paid to Mcllroy Bank & Trust for the purpose of liquidating the amount yet owed by Herbert Hatfield to Rosa Marinoni or her estate. When such balance was paid, the escrow agent was to deliver an executed warranty deed to the purchasers.

In the Marinoni contract with Mr. Hatfield she reserved the right, in case of delinquency for more than 30 days, to declare the contract terminated and retain all sums paid prior thereto as liquidated damages. The Hatfield/Mixon and Whatley agreement provided that upon nonperformance by the vendees, the vendors “may declare this contract terminated and at an end, take possession of the property and retain any and all sums paid under this contract as rents for the use of the property.” Mixon and Whatley later assigned their interest in the contract to Mixon Realty Company, who accepted same subject to all obligations assumed by the assignors.

The above assignment is dated August 23, 1974. Counsel agree that the direct obligation to Mr. Hatfield and wife was paid in full by assignee before this suit was instituted.

The problem resulting in litigation arose in January, 1979, when a representative of Rosa Marinoni’s estate (she having died in the year 1970) wrote a letter to the escrow agent calling attention to default in the payment of installments due under Rosa Marinoni’s contract of sale with Mr. Hatfield and demanding that the escrow be terminated with all documents held by such agent to be returned. (The delinquency will be mentioned in more detail later on.) Upon receipt of said letter, an officer of the escrow agent by letter dated January 22, 1979, advised Mr. Hatfield of the communication received from the Marinoni representative and stated therein that:

“Unless there is a mutual settlement before January 31, 1979, I will deliver all documents into Court in order for a decision to be delivered to this agent. If any monies are held by this agent on the deadline above, they will be turned over to the Court along with the documents.”

In response to the above-mentioned letter, Mr. Hatfield issued a check dated January 25, 1979, to Mcllroy Bank and the Marinoni estate in the amount of $20,290.39 in full payment of the balance due said estate. Also, the Hatfields redeemed said property after a tax sale for non-payment of taxes in prior years. The redemption certificate and treasurer’s receipt evidencing such redemption were filed of record on March 7, 1979-

On or about March 7, 1979, counsel for Herbert Hatfield wrote a letter to Mr. Don Mixon, executor of the Estate of H. D. Mixon, Mixon Realty Company, stating that he had been retained by Herbert Hatfield to represent him in obtaining possession of the property at 355 North College Avenue, Fayetteville, Arkansas, for failure of Mixon and Whatley to comply with the contractual agreement and declaring said contract to be terminated and the property considered to be in the possession of the Hatfields. Enclosed in said letter was a copy of the redemption certificate above mentioned.

In March of 1979 the escrow agent filed a bill of interpleader in the chancery court of Washington County, seeking guidance as to its further course of action in the matter. For some unexplained reason Mixon Realty Company was not served with process until late September, 1979. The Hat-fields and executor of the estate of Rosa Marinoni, having been served, filed responsive pleadings wherein each pled forfeiture and prayed for termination of their contracts with their respective vendees. In a response to the pleading filed by the Marinoni Estate, Hatfields pled that Marinoni had agreed to waive strict performance of the contract and was es-topped from pleading forfeiture. The Marinoni Estate accepted the amount owed and was dismissed from the lawsuit.

A pre-trial hearing was held by the trial court on October 3, 1979, and at such hearing all of the facts and documents mentioned herein were stipulated to by counsel. At the conclusion of said hearing the Court stated that if Mix-on Realty Company tendered to Herbert Hatfield and wife all amounts expended by them in making payment on the Marianoni balance and other expenses incurred, no forfeiture would be declared and that the Court would refuse to quiet title to said property in Herbert and Maxine Hatfield.

On the day following the pre-trial hearing, October 4, 1979, the Hatfields through their attorney advised Mixon Realty Company • that they would not accept the tender, if offered, but did advise as to the amount expended, as directed by the Court. Such tender was made to Herbert Hatfield and wife on October 10, 1979, but same was rejected, and forfeiture re-asserted.

The only issue involved in this case relates to the Court’s refusal to declare a forfeiture. The appellants urge four points of error, as follows:

POINT I
The contract for the sale and purchase of real property, dated February 9, 1972, is valid and enforceable according to its terms as a matter of law, and the Court erred in not so enforcing it.
POINT II
Appellants did not waive their right to declare forfeiture.
POINT III
Appellee’s failure to cure its default by tender of full payment for seven months following appellants’ declaration of forfeiture was unreasonable as a matter of law.
POINT IV

The Court’s decision to allow appellee until October 10, 1979, to cure default, without finding that appellants waived their right to declare forfeiture was arbitrary, clearly against the preponderance of the evidence, and contrary to law.

We do not feel that each point needs to be discussed separately, because they are somewhat interrelated. Counsel for appellants recognize, and frankly admit, the old maxim that “equity abhors a forfeiture.” They further recognize that our supreme court in several cases, and particularly in the case of Triplett v. Davis, 238 Ark. 870, 385 S.W. 2d 33 (1964), has said:

“It is a well known equitable principle that equity abhors a forfeiture and will seize upon slight circumstances that indicate a waiver in order to prevent a forfeiture.”

But, counsel for appellants sincerely urge that the written contract is valid and enforceable according to its terms as a matter of law; that appellants did not waive their right to declare forfeiture; and that the Court, not having specifically found a waiver existing, committed error in permitting appellee to cure its default.

The trial judge did not favor us with specific reasons for his decision, but we now refer to the facts and circumstances which in our opinion fully justify the Court’s decision:

1. Although Mixon Realty Company had made its last regular payment to the escrow agent on the indebtedness due Marinoni in the month of February, 1976, no complaint was made by anyone on behalf of Marinoni as to such default until the month of January 1, 1979- In pleadings filed by counsel for appellants and in oral argument, they stated that any default in payment to Rosa Marinoni was agreed to and acquiesced in for over a period of two years. Appellants, in effect, urge that there was a waiver by the Marinonis but not by the Hatfields. We do not agree with this distinction made by appellants and find that any waiver on the part of the Marinonis inured to the benefit of Mixon Realty. Appellant’s position in this respect is inconsistent. Since the Hatfields had been paid in full, they had no cause to complain until the executor made his demand for payment.
2. An interest payment of $815.19 was made by Mixon Realty Company on January 31, 1978, which was accepted by the escrow agent.
3. Mixon Realty had a substantial equity in the property involved and any indebtedness yet due was adequately secured.
4. Upon learning of the demand made by the Marinoni Estate Mr. Hatfield, before making contact with Mixon Realty, promptly paid the Marinoni debt in full. The point we make is that Hatfield’s only interest in the matter was that Mixon protect him against liability to the Marinoni Estate and that Hatfield did not give Mixon the opportunity to give him such protection.

Forfeiture provisions in land contracts are to be enforced and have been enforced in cases where there is no substantial equitable circumstance that calls for refusal of forfeiture. For example see the case of White v. Page, 216 Ark. 632, cited by appellants. In this case we find that equitable circumstances did exist that justified the Chancellor’s decision to deny forfeiture. While no finding was made by the trial court that forfeiture had been waived by the Marinoni Estate, it is undisputed that such waiver had been made and we hold that same inured to the benefit of Mixon Realty. The Chancery Court decision is to be affirmed upon our de novo review if not clearly against the evidence and finding its decision supported by substantial evidence we affirm.

Special Judge Fred Jones joins in the opinion.

Newbern and Penlx, JJ., not participating.


text:
    Danny STEWART v. Charles L. DANIELS, Director of Labor, STATE of Arkansas et al
    CA 80-50
    601 S.W. 2d 245
    Court of Appeals of Arkansas
    Opinion delivered June 25, 1980
    Released for publication July 8, 1980
    Appellant, pro se.

      Herm Northcutt, for appellees.
   Ernie E. Wright, Chief Judge.

Claimant Danny Stewart was denied unemployment benefits by the Employment Security Division on the finding he was discharged from his last work for misconduct connected with the work. The appeals referee and Board of Review affirmed the denial of benefits, and claimant brings this appeal from the decision of the Board of Review.

The only issue for review by this court is whether there is substantial evidence to support the finding of the Board of Review.

The evidence is undisputed that the claimant, a radio advertising salesman, declined to sell spot advertisements to a local business in DeQueen, Arkansas. The employer testified this was contrary to orders. The evidence shows the refusal angered the local business owner who was refused the spot advertising, and complaint was made to the employer. There was also evidence the claimant was abrasive in his relations with co-workers to the extent it caused disruptions in normal business operations.

Section 5(b)(1) of the Arkansas Employment Security Law provides for disqualification from benefits when a worker is discharged for misconduct connected with his work. From our review of the evidence we conclude the decision of the Board of Review finding the claimant disqualified under Section 5(b)(1) is supported by substantial evidence*

Affirmed.


author: Ernie E. Wright, Chief Judge. Penix, J., Marian F. Penix, Judge,

text:
    S. W. SIMMONS v. Shirley J. McCOLLUM, Administratrix of the estate of Ricky Allen McCOLLUM, Deceased
    CA 80-55
    601 S.W. 2d 232
    Court of Appeals of Arkansas
    Opinion delivered June 25, 1980
    Released for publication July 8, 1980

      Hardin, Jesson & Dawson, for appellant.

      Witt & Donovan, for appellee.
   Ernie E. Wright, Chief Judge.

Appellee Shirley J. McCollum, administratrix of the estate of Ricky Allen McCollum, deceased, brought suit against appellant S. W. Simmons to recover damages for wrongful death of her son Ricky resulting from a collison of his motorcycle with a motor vehicle driven by appellant. The jury awarded general damages to the estate in the amount of $8,000.00 and mental anguish damages in the amount of $2,000.00 each to Shirley J. McCollum, mother of the deceased, and Lesa McCollum, minor sister of the deceased.

The appellant brings this appeal from the judgment and for reversal contends (1), the court erred in ruling that the credibility of a witness for appellee could not be tested on cross examination by inquiry about criminal acts, and (2), in submitting to the jury over appellant’s objections instructions permitting the jury to consider the award of damages for mental anguish.

Danny Stapleton was a passenger on the decedent’s motorcycle at the time of the accident and he and appellant were the only witnesses at the trial who were eye witnesses to the accident. Ricky died a few hours after the accident. Danny Stapleton gave testimony favorable to appellee. In cross examination he admitted he had been convicted of felony theft at Scranton. Counsel for appellant asked the witness if he had broken into anything while living in Russelville and the court sustained an objection ruling that questions of the witness as to criminal actions were inadmissible unless the witness had been convicted.

The court’s ruling may well have been erroneous as Rule 608 of the Uniform Rules of Evidence provides that specific instances of conduct may, in the discretion of the court, if probative of truthfulness or untruthfulness be inquired into on cross examination. However, there was no proffer of testimony the witness was expected to give. As the record is silent as to what evidence would have been given, we cannot say appellant was prejudiced. An objection to the exclusion of testimony cannot be considered on appeal in absence of a showing as to what testimony would have been. Boyd v. Brown, 237 Ark. 445, 373 S.W. 2d 711 (1963).

Appellant at the close of the evidence objected to the court submitting the issue of damages for mental anguish to the jury, contending there was no evidence the next of kin sustained any mental anguish over and above the normal expected in the loss of a loved one. The court overruled the objection as to the mother and younger brother and sister of the deceased but did not instruct the jury it could consider damages for mental anguish by the father. The jury found no damages in favor of deceased’s brother, Kelly Joe McCollum, who has brain damage and did not testify, and found $2,-000.00 damages each in favor of the mother and the deceased’s younger sister, Lesa. In Peugh v. Oliger, 233 Ark. 281, 345 S.W. 2d 610 (1961), the court held that in order to recover damages for mental anguish, it is necessary the mental anguish suffered be real and with cause, and not merely the result of too sensitive mind or a morbid imagination; and that to recover one must suffer more than normal grief.

In 57. Louis S.W. Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W. 2d 436 (1977), the court stated, “Usually, the trial judge will be in a better position than we are to determine whether there is sufficient evidence to raise a question whether there was more than normal grief.” Testimony of the mother of the deceased shows Ricky was 18 years of age at the time of his death; the mother and Ricky’s father, who was an alcoholic, were divorced; the mother worked and had the responsibility of raising Ricky’s younger sister; Ricky had been in trouble in Oklahoma where the family previously lived and had been in a home for boys there; sometime prior to his death he moved to Arkansas and joined his mother; after coming to Arkansas he burglarized a drugstore for which he pled guilty in 1976 and spent about four months in Tucker Prison; he joined the church while in prison and after he was released the mother and Ricky had long conversations about what they wanted from life and prayed about it; Ricky worked some at construction and at odd jobs after his release. The mother testified, “Ricky and I have always been close. He was my big boy, and his sister, Ricky was always concerned about her and her growing up and everything. Ricky and I got along pretty good. Oh, we had our differences and everything like mothers and sons do, but we loved each other.” She testified she tried to take care of Ricky and that he showed his love for her by being there when she really needed him, and talking to her when she was down; that Ricky carried his younger sister Lesa around like she was a queen when she was a little girl and he thought she was about it; that there was a lot of love between Ricky and Lesa, and Ricky would give her spending money when he had it; and Ricky had agreed he was going to help raise Lesa and hopefully put her through college and that Lesa is an “A” student. Ricky talked about going back to school but she thought he felt he should try to help his mother. She testified she still had not recovered from Ricky’s death at the trial some year and a half from his death and she didn’t believe she would ever recover from it; that Lesa was still very upset about Ricky’s death and that she missed her brother quite a bit; that, “It’s been a bad time for all of us”, and that one, “would never know what it is like to go through something like that until you have been through it.”

The mother went to the scene of the accident but Ricky had been removed to the hospital in Fort Smith and she got to see him for only a minute. She testified she expected Ricky to help her as he entered adulthood because, “he loved me and I loved him”, and that there was nothing that could replace his loss.

Lesa, age 13, testified she loved her brother Ricky a lot and he loved her and showed his love for her “all the time.” He helped her with everything; his death has been a strain on her and caused her to be upset; he did everything for her like “maybe a father would”, and he gave her money all the time. She stated she had a good relationship with Ricky.

The court submitted the issue of mental anguish damage to the jury under the standard AMI Instructions. The jury declined to allow damages to the deceased’s brother who did not testify and suffers brain damage, but awarded a modest $2,000 each to the mother and the sister Lesa.

As pointed out in Pennington, supra, the trial court is in a better position to determine whether there is substantial evidence to raise a jury question, and this rule is in accord with the general rule for appellate review after the issue of damage for mental anguish has been submitted to the jury, as stated in 5 C.J.S. p. 1147 as follows:

Where the trial court submitted the case to the jury, the usual presumption in favor of the trial court obtains, and all reasonable doubts should be resolved in favor of the ruling of the trial court.

When there is substantial evidence tending to establish an issue in favor of the plaintiff it is error to refuse to submit the issue to the jury Jones v. Lewis, 89 Ark. 368, 117 S.W. 561 (1909). The objection of appellant to the submission of the issue of mental anguish to the jury was tantamount to moving for a directed verdict as to that issue, and the rule is the trial court must give to plaintiff s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deducted from it in determining whether to submit the issue to the jury. Hawkins v. Missouri Pacific Railroad Company, 217 Ark. 42, 228 S.W. 2d 642 (1950). If fair minded men might show different conclusions from the eivdence, it is error to direct a verdict. Smith v. McEachin, 186 Ark. 1132, 57 S.W. 2d 1043 (1933).

After carefully reviewing the evidence in support of mental anguish damage we are unable to say the trial judge, who heard the testimony and observed the witnesses, erred in submitting the mental anguish damage issue to the jury and permitting the jury to determine whether the mother and sister of the deceased suffered more than normal grief.

Affirmed.

Penix, J.,

dissents in part, and would reverse the portion of the judgment awarding mental anguish damage.

Marian F. Penix, Judge,

dissenting. It is never easy to attempt to gauge the amount of mental suffering experienced by the family of a young person who is accidentally killed. However, the case law in Arkansas has laid down legal principles that must be employed in determining whether there is any evidence justifying the submission of mental anguish as an element of damage. The record reflects the deceased had been a delinquent youth. There was testimony Rickey McCollum had been in trouble with the law and had been an incorrigible. While Rickey was incarcerated in Oklahoma in 1975 his mother moved to Paris, Arkansas. Rickey ran away from the industrial school in Oklahoma and went to Texas. His mother did not see him for long periods of time. In the few months preceding the fatal accident Rickey had lived as a transient and stayed the night infrequently with his mother.

St. Louis Southwestern Railway Company v. Pennington, Admr., 261 Ark. 650, 553 S.W. 2d 436 (1977) sets out the following elements which have been considered by the Arkansas case law to be significant indications of “more than the normal grief occasioned by the loss of a loved one”:

(1) Sleeplessness or troubled sleep over an extended period.
(2) Frequency of association and communication
(3) Obvious extreme or unusual nervous reaction to the death
(4) Crying spells over an extended period of time
(5) Adverse effect on survivor’s work or school
(6) Change of personality of the survivor
(7) Loss of weight by survivor and other physical symptoms.

We can of course conjecture the Mother grieved over Rickey’s delinquency, but there is absolutely nothing in this record to indicate the grief over his death was other than normal. Arkansas cases require a showing of more than normal grief. The Court erred in submitting to the jury mental anguish as an element of the family’s damage.

As a mother, I agonize for Rickey McCollum’s mother. However, a great portion of Arkansas law is based on case law. Our cases have many times over required a definite showing of grief over and beyond the normal grief before mental anguish becomes a proper element of damage to be submitted to the jury. Our legal system is built upon Arkansas cases taken as precedent.

I respectfully dissent.


text:
    Ralph SMITH v. Charles L. DANIELS, Director of Labor, and SWAFFORD HEATING
    CA 80-115
    601 S.W. 2d 235
    Court of Appeals of Arkansas
    Opinion delivered June 25, 1980
    Released for publication July 8, 1980
    Appellant, pro se.

      Herrn Norihcutt, for appellees.
   Steele Hays, Judge.

This appeal is from a denial of unemployment compensation benefits based upon a determination that the claimant voluntarily left his last place of employment without good cause in connection with the work, disqualifying him for benefits until he has had thirty days of covered employment. The disqualification is pursuant to Section 5(a) of the Arkansas Employment Security Law, which reads:

Voluntarily leaving work, (a) If he voluntarily and without good cause connected with the work, left his last work. Such disqualification shall continue until, subsequent to filing his claim, he has had at least thirty days of covered employment.

The Appeals Tribunal determined that the claimant had become employed by Swafford Heating and Air Conditioning Company and had worked on Friday, October 19, 1979, and on Monday, October 22, 1979. After working two days, claimant contends that he contracted the flu and sinus trouble and called in to say he was going to the doctor. He stated that he went to see Dr. Morgan, but that when he was able to return to work, instead of returning to Swafford Heating and Air Conditioning he went back to his regular employer, Climate Control. It appears that claimant worked at Climate Control until the week ending November 2, 1979, at which time he was laid off because of lack of work.

This case is unusual in that it appears that claimant’s employment by Climate Control overlapped his employment by Swafford Heating and Air Conditioning. There is evidence that claimant returned to Climate Control after working at Swafford Heating and Air Conditioning, and it is claimant’s contention that he was on leave of absence from Climate Control when he worked briefly at Swafford Heating “to see how he would like it.”

With reference to the decision of the Board of Review regarding the termination of claimant’s employment at Swafford Heating and Air Conditioning Company, we find ample evidence of a substantial nature to affirm the decision that claimant’s departure from Swafford Heating and Air Conditioning Company was voluntary and that Swafford Heating and Air Conditioning Company had work which claimant was capable of performing. Where there is substantial evidence to support the decision of the Board of Review, we must affirm. Terry Dairy Products, Inc. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955).

With reference to claimant’s contention that Climate Control, and not Swafford Heating and Air Conditioning Company, was his last employer, we note that Climate Control was not a party as they would have a right to be; furthermore, the record shows that when the original claim for benefits was filed on November 19, 1979, claimant gave Swafford Heating and Air Conditioning Company as his last employer.

The denial of benefits as to Swafford Heating and Air Conditioning Company based upon section 5(a) is affirmed. This decision is without prejudice to any rights the claimant may have with respect to his employment by Climate Control.

Affirmed.


author: Steele Hays, Judge. Marian F. Penix, Judge,

text:
    Roger L. RILEY v. MONARK BOAT COMPANY
    CA 80-124
    602 S.W. 2d 411
    Court of Appeals of Arkansas
    Opinion delivered June 25, 1980
    Released for publication July 8, 1980

      Eugene Hunt, for appellant.

      Bridges, Young, Matthews, Holmes, & Drake, for appellees.
   Steele Hays, Judge.

Appellant’s claim for workers’ compensation benefits for surgical repair of an inguinal hernia was denied by the Workers’ Compensation commission and is before us on appeal. Stated simply, the issue is whether the denial is supported by substantial evidence.

Appellant had been employed at Monark Boat Company for a month when, on August 3, 1978, he and several employees were attempting to turn over a boat for repair work. The weight of the boat was estimated at between seven hundred and one thousand pounds. Appellant described the occurrence:

“Well, when we was turning it over, like we had to put foam on the floor and tilt the boat up sideways. And when we tilted the boat over sideways the boat was coming on over and it was leaning, so the boy that was on the boat helping me had to go to the other side to keep it from falling, and left me on the back holding the boat, so we had to let it ease on down. And that’s when I hurt myself, when I raised up I felt the pain.

Appellant immediately told the other employees and his supervisor Mr. Benny King, that he had hurt himself. King advised appellant to continue working, which he did. Appellant examined himself in a restroom and observed a small knot on the right side of his lower stomach which he was able to depress with his finger. He felt considerable pain and found it very hard to walk. Appellant reported again to Mr. King and left around noon to see the company physician, Dr. A. K. Busby. Dr. Busby examined appellant and advised him to return to work. Appellant returned at about 3:30 p.m. which was his normal quitting time and punched out to go home. Appellant worked on August 4, a Friday, and on the following Monday and Tuesday. On Wednesday, August 9, appellant left work after some three and one-half hours, because of the pain and consulted Dr. Harold F. Wilson. Dr. Wilson advised appellant to leave work that same day and to come to the hospital on Sunday, August 13, for surgery to repair the hernia.

The testimony of appellant is corroborated rather fully by another employee, David Rawls, who stated that after turning over the boat appellant remarked that he had hurt himself in his lower stomach on the right side and that he, Rawls, told appellant he might have pulled a muscle or gotten a hernia; that this occurred within a few minutes after they had turned the boat. Rawls testified that appellant informed Benny King, and some time later left work to go to the doctor. His recollection was that appellant returned on the same afternoon saying that Dr. Busby had told him to return to work. The witness also recalled that appellant worked on the following day and the early part of the ensuing week and his testimony generally gives the impression of credibility. It was stipulated that three other employees, Wilson, Chancellor, and Doss, would testify to the same facts as David Rawls.

The remaining evidence of appellant is in the form of a bill from Dr. Busby for $15.00 for an office visit by appellant on August 3 for “hernia — very minimal.” The bill contains a blank space after the word “insurance” in which is written: “comp — Monark”. Also on the statement, apparently in the same handwriting, are words which have been scratched out, but which are partially legible. The words “Monark” and “turned in on comp” are clearly recognizable.

In addition to the hospital discharge summary of Dr. Wilson, the record reflects Dr. Wilson’s signed report to Monark’s insurance carrier on a standard form which states that appellant sustained a hernia while working, straining his right side “lifting bolts”. (It appears to be undisputed that this reference was to boats rather than bolts.) Dr. Wilson’s report was accompanied by a bill for services addressed to Monark Boat Company. In short, the report and statement lead to no other inference but that Dr. Wilson regarded the injury as compensable.

It is common knowledge that hernias often occur in just such acts as appellant was engaged in; however, to protect employers from uncertainty as to causation, § 81-1313(e) of the Workers’ Compensation Act (Ark. Stat. Ann.) sets out five essential elements which must be present in order for a hernia to be compensable:

(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernia region;
(3) That such pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within [forty]-eight (48) hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after such occurrence;

We note that in appellant’s case each step was met promptly and fully, and in such fashion as to satisfy even the most skeptical. This is not to imply that because these elements are met a hernia is presumed to be compensable, as the intention of the statute is that before a hernia may be considered as compensable the foregoing elements must be present. But where, as in the case before us, there is credible testimony from the claimant and four fellow employees that claimant experienced severe strain, with immediate severe pain in the hernia region, that he ceased work immediately and reported the occurrence to his employer and, although instructed to return to work, he recognized within an extremely brief period the need to see a physician, the combined effect of these elements and the promptness with which they occurred has significant probative force. Hence, we are persuaded, even convinced, that the appellant’s injury is supported by substantial, credible evidence. But that is not the test, the test is whether there was substantial evidence to support the decision which was reached. Independent Stave Company, Inc. v. Fulton, 251 Ark. 1089, Wilson Lumber Company v. Hughes, 245 Ark. 168.

The evidence on which the denial of benefits is to be judged consists of two parts: (a) a letter from Dr. Busby dated January 11, 1979, and (b) two work records of the appellant. Of the latter, one record is entitled “Employee Attendance Record”, which purports to show that appellant was not absent in August before August 10, the day he left work to consult Dr. Wilson, thus refuting any absence on August 3; the other is a time card showing times “in” and “out” for the five work days of the week beginning July 31. The time card purportedly shows that the appellant as having worked nine hours on August 3. It is not entirely clear what appellee intends to show by the introduction of these records, though presumably it is to cast doubt on whether appellant saw a doctor at all on August 3 or even if he did, he still managed to work a total of nine hours. We readily reject either contention in the face of the very strong evidence to the contrary. The appellant’s testimony is that he was absent for approximately three hours from around 12:00 noon until 3:30 in the afternoon and this fact is abundantly corroborated by the testimony of four fellow workers. True, the time card shows the appellant as having worked a nine hour day on August 3, but the same document clearly shows that something out of the ordinary occurred on August 3. The other four days of the week show the time “in” and time “out” to have been entered by the punch machine itself, whereas on August 3 two sets of initials appear and one of the “out” entries, 12:00 noon, is in handwriting rather than by machine and the lower part of entry bears the inscription “O.K.” and the initials “BKR”, which we take to be those of Benny King. If more were necessary, it is clear from the statement of Dr. Busby and his letter of January 11 that he did in fact examine the appellant on August 3 in his office and take a medical history and we believe the evidence points, unerringly, to the fact that appellant did leave work for an extended period of time on the date in question. Moreover, it is clear that the administrative law judge had no greater misgivings on this point than we do, as his findings include:

There can be no question from the record that claimant received some type of injury on August 3, 1978.”

Thus we are left with the letter on January 11 by Dr. Busby as the only evidence on the issue of substantiality. There is nothing else on which to rest the denial, and that being so we quote the contents of the January 11 letter verbatim:

“Roger Riley was seen in my office on August 3, 1978. His chief complaint was “pain in leg”. The patient stated that it had been there about 1 week and that it would hurt every once and awhile then would quit. Patient stated that he first noticed the knot one week before being seen. That patient stated that he had been working for Mon-Ark for about one month. He has been seen by Dr.’s Price and Hicks of Monticello.
Physical Examination showed the patient to have a very small hernia in the right inguinal canal. I recommended that he have surgical repair of the hernia. It was felt at the time that this hernia was a pre-existing hernia, but that it should be repaired.

The substantiality of this report must be assessed in the light of other evidence, and especially, that emanating from Dr. Busby himself, i.e., the August 3 statement. We are convinced the report fails to meet the fair standards of substantiality for reasons we will endeavor to define. We do not believe that appellant’s “chief complaint” could have been “pain in leg,” as there is no mention of such a complaint in the August 3 statement. If the hernia was the lesser of appellant’s complaints at the time of his examination by Dr. Busby we think certainly that fact would have been noted on the statement. The only complaint mentioned in the August 3 statement is “hernia — minimal.” Moreover, it is implausible that Dr. Busby recommended, as he says, surgical repair of the hernia to the appellant. His report twice states that he recommended surgery, but this simply will not repose with the testimony of appellant that he was told by Dr. Busby to return to work. In view of appellant having actually followed such advice and remaining at work for several days until the pain was “hurting real bad”, we believe appellant’s actions give credence to his testimony that he was told to return to work. Next, if the hernia which Dr. Busby noted on August 3 was “preexisting” he would surely have said so at the time, as he did on January 11. And, additionally, the obvious references to compensation insurance suggest that Dr. Busby regarded the hernia as covered. Finally, the objectivity of the report itself is undermined by the fact that appellant’s counsel had to write three letters to Dr. Busby, first on October 4, 1978, and again on October 18, 1978, and lastly on November 6, 1978, the last of which suggesting a subpoena for the information if not voluntarily supplied. Even so it was not until more than two months later and three and one-half months in all before the requested report was provided. This we believe the greater credence may be placed in the contents of the August 3 statement, brief though it is.

But even if we give Dr. Busby’s report all of the credence possible, the most that can be said is that it supports a finding that the hernia pre-existed the date of August 3. However, the administrative law judge, as we have said, concluded that there was no question from the record that claimant received an injury of some sort on August 3, which finding the commission did not take exception to. If the administrative law judge was correct (and we are confident he was) that an injury was sustained by the appellant on August 3, then the only injury possible is the hernia and Dr. Busby’s January 11 comments, when weighed against the other evidence and his own statement of August 3, simply cannot be regarded by reasonable minds as • substantial evidence that the hernia itself was not sustained on that date. Thus we are convinced that fair minded men could not have reached the conclusion which the Commission reached in this case and when that test is applied we are justified in a reversal. Prudy v. Livingston, 262 Ark. 575. We are not required to accept medical opinion categorically where there is strong and compelling evidence to the contrary. In a situation bearing some similarities to the case at bar, the Supreme Court rejected the opinion testimony of two physicians that the claimant was able to return to work on a certain day and reversed the Commission on the basis of a lack of substantial evidence. McBryde v. Arkla Industries, 235 Ark. 675.

We think it would be plainly inconsistent with the spirit and the tenor of the Workers’ Compensation Act, so oft repeated, that doubtful cases are to be resolved on behalf of the claimant and liberally construed to that end. Reynolds Metal Company v. Robins, 231 Ark. 165; Boyd Excelsior Company v. McKown, 226 Ark. 174.

This case is reversed and remanded with instructions to proceed in accordance with this opinion.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. The Administrative Law Judge and the three members of the Workers’ Compensation Commission determined the claim should be denied. The full Commission found the denial to be supported by a preponderance of the evidence. Our Court must view the evidence most favorably to the findings of the Commission. We must affirm the Commission unless there was no substantial evidence to support its findings.

Dr. Busby’s opinion is the only medical in the record. The claimant had the opportunity to depose Dr. Busby, but chose not to. Dr. Busby’s opinion that the hernia pre-existed the August 3 injury is unrefuted.

Viewing the entire record it is conceivable the members of this court may have found substantial evidence to allow the claim. However, that is irrelevant. The case law in Arkansas requires us to affirm the Commission when its determination is based on substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979).

The claimant worked nine hours on August 3, 1978, eight hours on August 4, 1978, was off for the weekend of August 5 and 6, worked eight hours on both August 7 and August 8. The claimant reported to Dr. Busby during the noon hour on August 3 that he had suffered a sporadic pain in his leg for about one week. Dr. Busby opined the hernia was pre-existing. This is substantial evidence. The decision should be affirmed.

I therefore respectfully dissent.