text:
    Warren G. KENNEDY et ux v. E. A. STROUT REALTY AGENCY, Inc. et al
    5-6177
    490 S.W. 2d 786
    Opinion delivered February 26, 1973

      Walker, Campbell ir McCorkindale, for appellants.

      John B. Driver, for appellees.
   Lyle Brown, Justice.

Kennedy and wife sued appellees to cancel a land sale contract and for consequential damages for misrepresentation as to the water supply. Cancellation and damages were denied and appellants contend the court’s findings wrere against the preponderance of the evidence and contrary to the law.

Status of the Parties. Appellee Strout Realty Co. and its agent, appellee L. A. Potter, had a listing on the subject property and the offer and acceptance were executed by Potter. At the conclusion of the trial it was conceded by appellants that they had not made a case against Strout and Potter. Appellee Rex Killebrew was the record owmer of the property but it is not contended he made any representations concerning the lands. Appellee Freddy Sutterfield had a partnership arrangement with Killebrew. Sutterfield would check on property for sale; Killebrew would put up the money and take the title. When Sutterfield firmed up a sale of land so acquired, Killebrew would be refunded his money and the profits would be divided. It was Sutterfield who negotiated the sale with the appellants and it was Sutterfield who is alleged to have made false representations concerning the ability of springs on the land to produce a supply of water ample for modern household purposes.

This suit concerns a 133-acre tract of land in Searcy County. Late in 1969, or early in 1970, title to the acreage became vested in Rex Killebrew. Negotiations on behalf of Killebrew were conducted by Freddy Sutterfield, agent for, or partner of, Killebrew. On August 5, 1970, Sutterfield listed the property with the local operator of Strout Realty Agency. The listing described the property and improvements in detail. With respect to water supply the listing read: “two spring, one pond”. Sutterfield first listed only 100 acres of the tract and at an asking price of $18,500. On the listing Sutterfield related that the house on the property was complete except for running water and bath and concluded that “Owner agrees to put spring water in”.

After considerable negotiations, the Kennedys entered into a purchase contract on May 14, 1971, whereby they agreed to buy the 133 acres for $17,500. The Kennedys entered into possession and made considerable improvements to the house. During the early period of possession they said they discovered that the two springs which Sutte'rfield represented would produce plenty of water, were mere wet weather springs. When Killebrew refused to cancel the sale and return the down payment, the Kennedys brought this suit. They alleged that false and fraudulent representations were made to them concerning the ability of the springs to furnish ample water for household purposes. The trial court found that the existing water supply furnished by the springs was not adequate to furnish the household with continuous water supply unless they could be more fully developed. However, the court concluded that the Kennedys failed to establish by a preponderance of the evidence that fraudulent representations upon which the Kennedys had a right to rely, were made with reference to the water supply.

There are two facts which stand out in the evidence and which require a reversal. First, we think it undisputed that Kennedy made it known to all parties his desire for a sufficient amount of water for household purposes. Second, we think the evidence preponderantly shows that the so-called springs were mere wet weather springs. We shall discuss the first point with particular reference to the representations made by Sutterfield. It was Sutterfield who executed the listing with Strout Realty. On the line that was printed the words “Source of Water”, Sutterfield inserted “two spring, one pond”. Then on the second page Sutterfield inserted this statement: “Home is complete except for running water and bath. Owner agrees to put spring water in”. The obligation of the owner to install water was not in the final sale and purchase contract. That is because the listing was for 100 acres for $18,500; the purchase was consummated for 133 acres and for $17,500. However, it was bound to be encouraging to Kennedy that Sutterfield thought there was enough water to service the home. The listing was shown to Sutterfield by Potter. At one point in his testimony, Sutterfield insisted that he made no contact with Kennedy prior to the signing of the papers. But questions by the trial court showed a different situation. Sutterfield testified that before the sale and purchase contract was signed, Kennedy called him on the telephone.

The Court: Was there anything said about the adequacy of the water supply for a house by you or him?
A. Yes, I told him I thought there was plenty of water there for a house.
The Court: Now, this was in this telephone conversation?
A. Yes.

This brings us to the capacity of the water supply. The evidence is clear and convincing that the springs relied upon by Sutterfield in his assurances to Kennedy were mere wet weather springs. (Incidentally, the point where a quarter-inch pipe had been stuck into the crevice in a rock and dripped water in wet weather was actually not inside the property line of the tract sold Kennedy.)

Ted Scarlett testified that he owned the property about three years ago and sold it to Sutterfield because there was no water supply. The farm of Charless Knee adjoins the Kennedy farm and runs along the hollow where the springs are located. He said water came out of the pipe when it was real wet weather. He described the springs as being wet weather springs. Elton Campbell testified that he lived on the subject property twenty years; that the only spring on the property was a wet weather spring; and that most of any given year they would haul water from other sources. Witnesses Ennis Campbell and Britt Head, both of whom showed considerable familiarity with the property, verified the other testimony with reference to there being no running water on the property. Head testified that at Kennedy’s request, he dynamitéd for water in the vicinity of the spring but without success. Loyd Girod, witness for appellees, testified that when he showed the spring to Kennedy there were two small puddles of water, “small trickles”. L. A. Potter, another witness for appellee, testified that he viewed the springs with Kennedy and that there were two puddles of water created by small trickles. From testimony supplied by appellees from some elderly citizens it appears reasonably certain that years ago there was an active spring on the property which furnished a limited source of water supply but the supply has receded to a small trickle of water in wet weather.

It was not necessary that the Kennedys establish actual fraud on the part of Sutterfield. “[Representations are construed to be fraudulent when made by one who either knows the assurances to be false or else not knowing the verity asserts them to be true”. Lane v. Rachel, 239 Ark. 400, 389 S.W. 2d 621 (1965). In other words it is clear to us that Sutterfield asserted the adequacy of the water to be true when in fact he had no reasonable foundation for making such representation.

The cause is reversed and remanded. The Kennedys are entitled to recover from Killebrew and Sutterfield the full amount of all payments made on the purchase price, together with recovery for improvements made to the property in good faith.

Reversed and remanded.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Ernest B. MAY v. CROMPTON-ARKANSAS MILLS, INC. and LIBERTY MUTUAL INSURANCE COMPANY
    5-6163
    490 S.W. 2d 794
    Opinion delivered February 26, 1973

      Alonzo D. Camp, for appellant.

      Riddick Riffel, for appellee.
   John A. Fogleman, Justice.

Appellant contends that the judgment of the circuit court affirming the denial of compensation to him by the Workmen’s Compensation Commission should be reversed because there was no substantial evidence to support the commission’s decision. That decision was based upon a finding that the claimant did not suffer any injury to his left leg out of and in the course of his employment.

Appellant May claims that he suffered a compensable injury on the night of October 25, 1968, while working as an oiler at the Crompton-Arkansas Mills, Inc., plant at Morrilton. He testified that he slipped on a polished concrete floor and his left shin struck a metal brace underneath a weaving loom, resulting in a disabling injury at the exact site of an old compound fracture of the mid-portion of his left tibia and fibula which had resulted in a poor union and left him with a limp.

May testified that this injury occurred about 10 minutes before midnight, when a shift change was to take place. May stated that for this reason no one was in the vicinity at the time of the injury, because everyone who might have been there was in the “break” room preparing to leave, and the new shift workers had not entered the area. Furthermore, according to May, the large room where the incident occurred was filled with many waist-high looms, all of which were in operation. Thus, he said, one outside the immediate area could not have seen or heard anything to cause him to be aware of the injury. May testified that he managed to overtake a fellow worker named Reuben Jones to whom he related the details of the occurrence. May went to the emergency room of a hospital the next day where an antibiotic and an anti-pain remedy were prescribed by the attending physician. Appellant returned to his home, but was later admitted to the hospital, where he remained for more than a week. Sometime during this interval, appellant’s wife called the superintendent (or personnel manager) at the plant and advised him that May had slipped at the plant and bumped his shin. After leaving the hospital, May went to the plant office, where Ansel Swaim, the personnel manager, after discussing the injury and compensation with May, helped him to prepare a claim for benefits under a group policy carried by appellee for the benefit of its employees, resulting in the payment of benefits to May. Eventually, May’s left leg was amputated below the knee because of an uncontrollable infection at the old injury site.

While it is true that the evidence might have supported a contrary finding, the burden of proving that his injury arose in the course of his employment was upon appellant. Wilson v. United Auto Workers International Union, 246 Ark. 1158, 441 S.W. 2d 475. This being the case, we are unable to say that there was no substantial evidence to support the commission’s findings, because there was testimony tending to negate May’s testimony and that of his wife. The commission might well have found from this contradictory evidence that May was not injured at the time he claimed to have been and might have also rejected his testimony for lack of credibility. Not only must we accept that view of the facts most favorable to the commission’s findings, we are bound by the commission’s determination of the extent to which testimony is given credit and must leave the drawing of inferences from the facts and circumstances to the commission. Wilson v. United Auto Workers International Union, supra.

May admittedly did not report his injury to any of the company’s supervisory personnel on the night it occurred, even though he testified that James Wells, his foreman, was in the plant, and others testified that they were also present. May stated that his fellow employee Reuben Jones had promised to testify for him, but had backed out. No effort was ever made by appellant to compel the testimony of Jones, in spite of the fact that his whereabouts seemed to have been known to May. The claimant admitted that he had been suffering pain from the old injury prior to the time of the alleged incident at the plant, and was carrying “pain pills” which he took when the leg hurt. May gave no history of the injury at the plant to his treating orthopedic surgeon. The group policy under which May made claim after his first stay in a hospital covered only non-job-related injuries. Swaim testified that he was not at the plant on Saturday, October 26, 1968, when May’s wife said she called him and reported the injury. He also testified that when May came to his office after the first hospitalization, May did state that he had bumped his leg some time previously, but could not state that this caused his trouble. Swaim related that May stated this trouble had flared up on him from time to time and had been controlled by shots administered by Dr. Henry Mobley. Swaim also testified that May did not then state the time, place or circumstances of this alleged injury.

Not only Swaim, but Wells, Leonard Dixon (overseer of the weaving department) and several weavers and loom fixers (some of whom were no longer employed by appellee) gave testimony from which a fact finder would have been justified in concluding that it was highly improbable that no one would have been in the area where May claimed to have bumped his leg at the time May said that he did and that the area was clearly visible from the “break” room. Some of these witnesses said that because of the imminent shift change some 75 to 80 people would have been in the vicinity. While it was conceded that employees such as oilers and fixers might leave the job a few minutes early, the unlikelihood of weavers not being present just before the shift ended was shown by testimony that each of them was paid on the basis of recorded production, the recording of which could be terminated by the turning of a “pick lock” by an oncoming shift worker. Wells did not see how May could have been injured in the manner he claimed to have been because an intervening beam roll should have prevented his leg from striking the bar or “beam lock.” Wells said that he was in the area at the time May asserted that the injury occurred. It also appears that the claim was first filed about VA years after the alleged occurrence. When it was filed, the date of the injury was stated as October 28, 1968.

Appellant classifies this testimony on behalf of the employer as "negative” evidence and says that it cannot afford substantial support to the commission’s findings. It appears to us that the drawing of an inference that May was not injured on the job because of the circumstances shown by these witnesses was permissible if full credibility was given to their testimony. Even if this were not so, this evidence could be taken to cast enough doubt upon the credibility of the claimant and his wife that the question ultimately was one of credibility, a matter lying exclusively within the province of the commission, and it was not bound to accept the claimant’s testimony at face value. Kivett v. Redmond, 234 Ark. 855, 355 S.W. 2d 172. Consequently, we cannot say that the circuit court erred in affirming the commission.

Accordingly, the judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Dorothy JEFFERS v. BROWN MOTOR COMPANY and Everett BROWN
    5-6199
    490 S.W. 2d 803
    Opinion delivered February 26, 1973

      Paul K. Roberts, for appellant.

      Coleman, Gantt, Ramsay ir Cox, for appellees.
   J. Fred Jones, Justice.

This is an appeal by cross-complainant Dorothy Jeffers from a circuit court judgment striking paragraphs 3, 4, 5 and 6 from her cross-complaint against Brown Motor Company and Everett Brown, after which her cross-complaint was dismissed and judgment was entered upon the pleadings in favor of the cross-defendant appellees, Brown Motor Company and Everett Brown.

The facts appear as follows: On July 25, 1970, Mrs. Jeffers purchased an Opel station wagon from appellee Brown Motor Company. She paid $400 cash and signed a conditional sales contract agreeing to pay the additional amount of $623.61 in monthly installments. The sales contract and security agreement were assigned by Brown to Simmons First National Bank of Pine Bluff and the bank filed suit against Mrs. Jeffers in replevin upon her default in the monthly payments.

Mrs. Jeffers did not seriously defend the replevin action but she filed a cross-complaint against the Brown Motor Company and Everett Brown in which, after asserting the names and residences of the parties, she alleged in paragraphs 3, 4, 5 and 6 that she purchased a 1967 Opel automobile from the Brown Motor Company paying $400 in cash and agreeing to pay the additional sum of $623.61 in monthly installments. She admitted in her cross-complaint that she signed a Conditional Sales Contract and Security Agreement and did not read the instrument she signed because of warranties made to her by the defendant and one of his agents and employees. She alleged that she advised the defendant Brown and his agent that she desired to purchase an automobile suitable for use as a taxi. She alleged that the defendant Brown and his agent-employee warranted to her that the Opel automobile which she purchased was exactly what she wanted and needed for use as a taxi. She then alleged: “Brown said ‘there are a lot of people buying Opels for taxis. You won’t have a dime’s worth of expense on this car for five years. I have driven this car myself, and its in perfect condition.3 33 (Emphasis supplied). She alleged that she did not test drive the automobile but relied entirely on the warranty made by Brown, his salesman-agent and employees, and as a result, and because of the representations made to her, she purchased the automobile and signed the conditional sales contract and security agreement. She alleged that in driving the automobile from the Brown Motor Company to her home in Bradley County, she found that the automobile was not in perfect condition; that there was something wrong with the clutch; that the motor failed to perform as warranted and that the automobile she purchased was not suited for use as a taxi. She alleged that the actual value of the automobile when she purchased it was $350 rather than the amount she agreed to pay; that Everett Brown and the Brown Motor Company, its agents, servants and employees, knew or should have known that the said automobile was mechanically imperfect and needed extensive repairs. She alleged that the cross-defendants willfully and intentionally perpetrated a fraud upon her by the fraudulent statements they made concerning the condition of the automobile and in persuading her to sign the conditional sales contract in the purchase of the automobile. She alleged that as soon as she learned the true condition of the automobile, she attempted to return it to the Brown Motor Company but that when she asked to discuss the matter with the cross-defendant Brown, he refused to discuss it with her. She alleged punitive damages in the amount of $500 and compensatory damages in the amount of $623.61 and prayed judgment for those amounts.

Summary judgment was entered by the trial court in favor of Simmons First National Bank in the replevin action and there is no appeal from that judgment. Everett Brown and the Brown Motor Company filed answer admitting that they sold the automobile to Mrs. Jeffers for the amount alleged, but denying the other allegations in her complaint. They attached a copy of the conditional sales contract to their answer and stated:

“The third party defendants specifically deny each and every other allegation set forth in the complaint and plead the said conditional sales contract and security agreement as a complete and final bar to the allegations made therein, same having been signed by Dorothy Jeffers and containing the following affirmative allegations by her: ‘no change in or modification of this contract shall be binding unless in writing and no agreement or representation shall be binding upon holder unless expressly contained herein. Buyer acknowledges that no oral representations, warranties, or guaranteees have been made by Seller to Buyer in connection herewith.’ Also, the following: ‘The Seller hereby sells and the Buyer, hereinafter referred to as ‘Buyer’ whether one or more, hereby bargain and grant to Seller and its assigns a purchase money security interest pursuant to the terms and conditions herein set forth the following described property which Seller has examined and found to be in acceptable condition. . .’ (Emphasis Applied)
Third party defendants plead said conditional sales contract and security agreement and the statements contained therein and affirmations made by Dorothy Jeffers as a complete, total and absolute bar to the claim and cause of action set forth in the third party complaint and the third party defendants move that paragraphs 3, 4, 5 and 6 be stricken in accordance with the applicable rules of pleadings and of law and further allege that the said third party complaint should be forthwith dismissed and the third party defendants granted their costs herein.”

The trial court found that paragraphs 3, 4, 5 and 6 in the cross-complaint were based on allegations of warranties allegedly made by the cross-defendants requiring all testimony dehors the written contract which Mrs. Jeffers admitted she signed. The trial court found that the allegations upon which the paragraphs were founded were contradictory and inconsistent with the express terms of the conditional sales contract and inadmissible under our holdings in Green Chev. Co. v. Kemp, 241 Ark. 62, 406 S. W. 2d 142; Hambrick v. Peoples Mercantile & Implement Co., 228 Ark. 1021, 311 S. W. 2d 785, and Federal Truck & Motors Co. v. Tompkins, 149 Ark. 664, 231 S. W. 553. The trial court then ordered paragraphs 3, 4, 5 and 6 stricken from the cro.ss-complaint and entered judgment in favor of Everett Brown and Brown Motor Company on the pleadings as per their motion.

The appellant Jeffers contends that the trial court erred in. striking paragraphs 3, 4, 5 and 6 from the cross-complaint and in dismissing her cross-complaint. We agree with the appellant Jeffers. In the cases of Green Chev. Co. v. Kemp and Hambrick v. Peoples Mercantile & Implement Co., supra, the litigation sounded in contract rather than in tort and fraud was not involved or alleged as an inducement to entering into the contract in either case.

In Federal Truck & Motors Co. v. Tompkins, supra, the purchaser of a used truck used it in his buiness for five months and after two monthly payments had become past due, he proposed to pay the balance if allowed proper discount. His proposition was not accepted by the seller and when the purchaser refused to make further payments, suit was instituted on the notes. The affirmative defense was laid in tort but it was submitted to the jury on contract. The distinguishing feature in Tompkins was stated by this court in the following language:

“Appellee defends the judgment of the court below on the theory that he was deceived and induced, by false representations in regard to the age and condition of the truck, to make the contract. But the case was not tried or submitted on that issue. In the instructions submitting the case to the jury the court said: ‘The defendant admits the execution of the notes, the sale of the motor truck, but says that the truck was warranted or guaranteed to him to be in good condition and not to have been run to exceed eight months and to be as good as new. He says that it was not as good as new and it was not in good condition and it was run more than eight months, and that the warranty has proved to be false * * *’ Having thus stated the issue, the court told the jury to find for the appellee if the testimony supported his contention.” (Our emphasis).

The case at bar is more in point with the recent case of Union Motors, Inc. v. Phillips, 241 Ark. 857, 410 S.W. 2d 747. In that case Phillips placed an order with Union Motors for a demonstrator automobile with low mileage and in all respects as good as new. He took delivery of the automobile and subsequently filed suit for damages on breach of warranty. He alleged that Union Motors’ agents represented the automobile to be in perfect condition and runs as good as new; that after he purchased the automobile he discovered that it had been in a wreck and imperfectly repaired; that Union Motors knew at the time of the sale that the automobile had been wrecked, and that Union Motors concealed that fact from him. He alleged damages in the amount of $1,000. Union Motors in its answer admitted the sale of a demonstrator but alleged that the only warranty made was the usual manufacturer’s warranty which was delivered to the purchaser Phillips. Secondly, Union Motors alleged that Phillips acknowledged in writing that no other warranties were involved. A jury was waived and a trial before the court resulted in an award of compensatory damages to Phillips in the amount of $650. We affirmed the judgment of the trial court in Phillips by finding that the complaint sounded in tort rather than in contract. See also Ray Dodge, Inc v. Moore, 251 Ark. 1036, 479 S.W. 2d 518, where beginning at the bottom of page 1040 of the Arkansas Report we said:

“Appellant’s argument that the proof of fraud must be clear and convincing is based upon the premise that the fraud charged is contradictory of the written vehicle buyer’s order signed by appellee, citing Belew v. Griffis, 249 Ark. 589, 460 S.W. 2d 80. The order contains an acknowledgment that no warranties were made by the dealer. Appellant contends that the alleged representations as to the mileage traveled by this vehicle contradicted that instrument. In Belew, however, the alleged representation related to the total amount required to pay the deferred purchase price and was clearly contrary to the recited consideration in a deed. Clear and convincing evidence of fraud is required to cancel or reform a solemn writing, but not to establish fraud in obtaining a contract by fraudulent misrepresentation. Clay v. Brand, 236 Ark. 236, 365 S.W. 2d 256; Parker v. Johnston, 244 Ark. 355, 426 S.W. 2d 155.”

The judgment of the trial court is reversed and this cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


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

text:
    The ARKANSAS STATE POLICE COMMISSION, J. E. DUNLAP, Jr., Chairman et al v. B. G. DAVIDSON
    5-6191
    490 S.W. 2d 788
    Opinion delivered February 26, 1973

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy Atty. Gen., for appellants.

      Jerry Screeton, F. Russell Rogers and James M. Thweatt, for appellee.
   Conley Byrd, Justice.

The issue on this appeal is whether the appellants, The Arkansas State Police Commission, J E. Dunlap, Chairman, et al, can hold the hearing required by Ark. Stat. Ann. § 42-406 (d) (Repl. 1968), for the reinstatement of a discharged State Policeman in executive session under the Freedom of Information Act, (Act 93 of 1967). The trial judge construed the Freedom of Information Act to require that the hearing of testimony, as distinguished from a discussion or consideration by the Commission, must be held in public. We agree.

For the purpose of this proceeding, it is admitted that appellee, B. G. Davidson was dismissed from the State Police Force, and that in apt time he made application for a reinstatement hearing, and that appellants refused to give him a public hearing.

Arkansas Statutes § 42-406(b) (Repl. 1968), provides that a member of the State Police Force can only be removed for cause. Subsection (d) thereof provides that the Director must give a discharged State Policeman written notice of the reasons therefor and that such discharged State Policeman can appeal his dismissal to the Commission. That subsection further provides:

“An appeal may be taken to the Circuit Court of Pulaski County from any order of the Commission discharging, . . . any member of the State Police Force, provided such appeal be perfected within thirty (30) days from the date of the final order made by the Commission, and such appeal shall be heard by the Circuit Court without the introduction of any further testimony.’’

The two germane sections of the Freedom of Information Act here involved are Sections 2 and 5. Section 2, [Ark. Stat. Ann. § 12-2802 (Repl. 1968)] provides:

“It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this act [§§ 12-2801 — 12-2807] is adopted, making it possible for them, or their representatives, to learn and to report fully the activities of their public officials.’’

Section 5, [Ark. Stat. Ann. § 12-2805 (Repl. 1968] provides:

“Except as otherwise specifically provided by law, all meetings formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts, and all boards, bureaus, commissions, or organizations of the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds, shall be public meetings.
The time and place of each regular meeting shall be furnished to anyone who requests the information.
In the event of emergency, or special meetings the person calling such a meeting shall notify the representatives of the newspapers, radio stations and television stations, if any, located in the county in which the meeting is to be held and which have requested to be so notified of such emergency or special meetings, of the time, place and date at least two [2] hours before such a meeting takes place in order that the public shall have representatives at the meeting.
Executive sessions will be permitted only for the purpose of discussing or considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.
Executive sessions must never be called for the purpose of defeating the reason or the spirit of the Freedom of Information Act.
No resolution, ordinance, rule, contract, regulation of motion considered or arrived at in executive session will be legal unless following the executive session, the public body reconvenes in public session and presents and votes on such resolution, ordinance, rule, contract, regulation, or motion.” [Emphasis ours].

Appellants rely upon the italicized portion of Section 5, for their authority to hold an executive session. When that portion permitting executive sessions “. . . only for the purpose of discussing or considering employment, . . . disciplining, or resignation,” of any employee is considered in the light of the declaration of public policy set forth in Section 2, we cannot construe it broad enough to permit an executive session for the purpose of hearing testimony. Like the trial court, we read the provision permitting an executive session, when applied to a statutory evidentiary hearing such as this, as giving to the Commissioners, after the hearing of testimony (and arguments, if any), the limited right of retiring into executive session “. . .only for the purpose of discussing or considering. . .” among themselves the decision they should reach. However, we point out that the last paragraph of Section 5 makes it mandatory for the Commissioners to reassemble in public session for the purpose of voting on the matter before them.

Afirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result. I do not agree that the issue before us is nearly as broad as stated in the majority opinion. I would not go beyond the issue actually presented. In order that the matter be viewed in the proper perspective, a more comprehensive statement of the case than is contained in the majority opinion is necessary.

Appellee filed a petition for writ of mandamus to require the Arkansas State Police Commission to conduct a public hearing on his appeal from the order dismissing him. The only reason petitioner assigned as a basis for this relief was that the commission was considering whether his dismissal was justified and not his employment, appointment, promotion, demotion, disciplining or resignation, covered by the exception to Ark. Stat. Ann. § 12-2805 (Repl. 1968). Appellants asserted that the hearing of appellee’s appeal did come within that exception, and that he was not entitled to a public hearing.

The writ set out the circuit court’s holdings in unusual detail. It commanded appellants to conduct a public hearing, with the qualification that after the hearing, the commission might go into executive session to discuss or consider its disposition, and thereafter reconvene in public session and make known its finding and decision. Appellants only assert that the direction to hold a public hearing is erroneous. No appeal was taken from that portion of the judgment permitting the executive session for deliberation, and no one asserts here that the circuit judge’s holding in this respect is erroneous.

The basic purpose of the Freedom of Information Act, is, of course, for the benefit of the general public. The exception provided by Ark. Stat. Ann. § 12-2805, however, is primarily for the protection of the employee or prospective employee. It has been suggested that the rationale of such a section is that government employees should not be put in a more public position than employees of a private organization when their personal attributes are being discussed, even though it might be desirable in some cases that public sessions to consider such matters be held. See Comment, Access to Governmental Information in California, 54 Calif. L. Rev. 1650, 1657 (1966). It would seem that the best interests of the accused might have been served by a hearing in executive session, if the result is ultimately favorable to him. But the matter cannot be viewed retrospectively.

It is to be noted that executive sessions are only permitted by the statute — not required. We have heretofore recognized the interest of a public officer in having charges against him considered in a public hearing in Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85, when we expressed the opinion that hearings on serious charges for removal of an officer serving a fixed term should be public if the accused desired. Although there might be bases of distinction between the cases of a public officer serving a fixed term and a public employee serving for an indeterminate period, no reason for making such a distinction appears here. Appellee has clearly, positively and repeatedly asked for a public hearing. In the absence of an overriding public interest calling for a private hearing (e.g., national security), he should have it. The only suggestion of such an interest in this matter is the argument in appellants’ brief that witnesses whose attendance cannot be compelled by the commission would be more reluctant to voluntarily appear and candidly assert facts detrimental to the accused in a public hearing than in a closed session. This argument is made academically, as there is nothing in the record to indicate that there are witnesses in this case who will not voluntarily appear or who are reluctant to testify. It is offered principally in rationalizing the basis for the exception. This contention does not seem to me to override appellee’s desire for a public hearing, particularly in view of the fact that, if he ultimately sought review of an order discharging him, the record of the hearing would then be made public when filed in the circuit court. Since this is the case, I agree with the result reached by the majority.

I do not agree, however, that the act does not permit the hearing of testimony in a case such as this to be had in executive session when the commission desires and the employee involved does not object. This approach gives a far too narrow construction to the word “considering.” To consider may mean more than to deliberate or adjudge. It may mean “to entertain” or “give heed”; “to fix the mind on with a view to careful examination”; “to examine.” Eastman Kodak Co. v. Richards, 123 Misc. 83, 204 N.Y.S. 246 (1924); Massachusetts Mut. Life Ins. Co. v. Colorado Loan & Trust Co., 20 Colo. 1, 36 P. 793 (1894); Rodolf v. Board of Commissioners of Tulsa County, 122 Okla. 120, 251 P. 740 (1926); United Bro. of Carpenters v. Industrial Commission, 363 S.W. 2d 82 (Mo. App. 1962); Black’s Law Dictionary, 4th Ed. See also, People v. Tru-Sport Pub. Co., Inc., 160 Misc. 628, 291 N.Y.S. 449 (1936). Even though the word “consider” might be given the very narrow connotation of “deliberate,” as implied by the majority opinion, this is not at all consistent with the obvious purpose of the exception and would leave the commission free to hold a public hearing of evidence on charges against an employee over his objection. I do not think that this was the legislative intent and insist that a reading of the whole act requires that we give the word consider an interpretation broad enough to include the hearing of evidence. Otherwise, the whole purpose of the exception can easily be defeated.


author: Conley Byrd, Justice.

text:
    William C. HORNE v. STATE of Arkansas
    5813
    490 S.W. 2d 806
    Opinion delivered February 26, 1973

      John W. Cole, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Frank B. Newell, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant William C. Horne, age 19, was charged with burglary and grand larceny allegedly arising out of a breaking and entering of the H & H Pharmacy in Sheridan. The jury found him guilty of grand larceny and not guilty of the burglary charge. For reversal, appellant relies upon the points hereinafter discussed.

The record shows that the H & H Pharmacy was closed on Saturday sometime after 6:00 or 6:30 p.m. and that on Monday morning when Mr. Walter Ellis opened his pharmacy he noticed that there had been a breaking and entering of the building. There was a quantity of watches and drugs missing. There is proof in the record that around 11:50 p.m. on Saturday appellant was in the company of Ray Mooney, and Jacquelyn and Elaine Brewer. Both Jacquelyn and Elaine testified that appellant said he “needed a fix”. Thereafter, between 12:30 and 1:00 a.m. on Sunday the appellant and Ray Mooney appeared at Lybrand’s service station. Mooney had several watches and appellant had a sack full of pills, all in boxes. The next morning Mr. Lybrand found a disposable syring in the area where appellant’s car had been parked. The syringe was described as being similar to those sold by H 8c H Pharmacy. Frank Mitchell, a State Policeman with the Criminal Investigation Division, testified that the drug Desoxyn, missing from the pharmacy, could be taken orally or injected with a syringe into a vein. When injected, the drug must be broken down with a liquid solution, where it will go in the vein — a tablet or capsule can be dissolved in a spoon. In the drug culture this is known as “popping the needle.” Mooney pleaded guilty and testified for the State. According to him both he and appellant were involved in the breaking and entering, but he insisted that he took the watches and appellant took the pills.

The court did not err in denying appellant’s motion for acquittal on the larceny charge. James Ivey testified that while Mooney and appellant were at the service station, there was some conversation between them about a drug store and that Mooney wanted to go back and get a gun. We pointed out in Puckett v. State, 194 Ark. 449 108 S.W. 2d 468 (1937), that an acquittal on a burglary charge does not necessarily work an acquittal of the larceny charge. Furthermore, the corroborating evidence on the larceny charge here was much stronger than on the burglary change.

There is no merit to appellant’s contention that the court should have quashed certain cross-examination quesr tions and answers about appellant’s refusal to make statements or admissions to die sheriff. Having taken the stand to testify in his own behalf, he thereby waived his Fifth Amendment right not to be a witness against himself and became subject to cross-examination like any other witness. See Brown v. United States, 356 U.S. 148, 78 S. Ct. 622, 2 L. ed. 2d 589 (1957), Harris v. State of New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. ed. 2d 1 (1971), and Rooks v. State, 250 Ark. 561, 466 S.W. 2d 478 (1971).

As we view the record, the syringe was properly introduced into evidence. The proof showed that the pharmacy had been entered, a quantity of drugs susceptible to use in a syringe had been taken, and that a disposable syringe similar to that sold by the pharmacy was found near the place appellant parked his car when he was seen taking the bottles of pills out of the boxes in which they came packed. While it is true that Ellis could not assert that any syringes were taken in the burglary, he did identify the type handled by his pharmacy and their availability had the burglars wanted to take one. The other witnesses connected up the relevancy by identifying the syringe found as being similar to the one coming from the pharmacy and being found at or near where appellant had parked his car.

Neither do we find any merit in appellant’s contention that the court erred in invoking the rule at the instance of the prosecution. We do not interpret Ark. Stat. Ann. § 43-2021 (Repl. 1964) as limiting the right to segregate witnesses to the accused.

Before the jury was empaneled, appellant moved to quash the jury panel or wheel. It was then admitted that only 74 veniremen were drawn from the 1970 jury wheel and that in appointing the 1971 jury commissioners, the trial court instructed them to replace only the 74 veniremen used. This of course does not comply with Act 568 of 1969. That Act requires the trial judge on or before November 1st of each year to appoint not less than three nor more than twelve jury commissioners and specifically commands the jury commissioners to select as prospective jurors, “for the following calendar year,” not less than 500 persons (for Grant County) from among the registered voters. Section 22 [Ark. Stat. Ann. § 39-214 (Supp. 1971)], recognizes that there can be a challenge to the panel and provides an alternate method of selecting jurors when the panel is quashed.

The State suggests that the language of Act 568 is directory only (not mandatory) and that in any event this slight deviation does not constitute prejudicial error.

While we must admit that the trial court’s deviation in the selection of the jury is a rather practical approach to an arduous task in a county with a small population, in view of the many successful attacks that were being made on our jury selections in post conviction proceedings prior to the passage of Act 568, we cannot construe the language thereof as directory only. If such practice should be continued for many years, it would tend to exclude from jury service those voters who registered after the last full selection of the jury wheel. Furthermore, Ark. Stat. Ann. § 43-1910 (Repl. 1964), recognizes that an accused has a right to make a challenge to the panel.

Neither can we agree with the State that the deviation here is not prejudicial. In the trial of the case, appellant exhausted all of his peremptory challenges. Furthermore, in view of the changes made in the law by Act 568, we do not see how we can take any other view. Prior to Act 568, supra, Ark. Stat. Ann. § 43-1911 (Repl. 1964), provided that a challenge to the panel could be made only for a substantial irregularity “in selecting or summoning the jury, or in drawing the panel by the clerk.” Ark. Stat. Ann. § 43-1911, was repealed by Act 568, and substituted in its place was Section 23 thereof, [Ark. Stat. Ann. § 39-215 (Supp. 1971)] which no longer makes a challenge to the selection of the jury subject to the substantial irregularity restriction.

Because of the irregularity in selecting the jury wheel or panel the judgment is reversed and remanded.


author: Frank Holt, Justice.

text:
    WARWICK ELECTRONICS, Inc. v. Carrie DEVAZIER
    5-6174
    490 S.W. 2d 792
    Opinion delivered February 26, 1973

      N. M. Norton, for appellants.

      Fletcher Long Jr., for appellee.
   Frank Holt, Justice.

In this workmen’s compensation appeal, the appellant contends there is not sufficient evidence to show a connection between appellee’s employment and her hospitalization for stomach ulcers as found by the referee and affirmed by the commission and the Circuit Court. It is well established that the trial court and this court review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the commission’s finding which, like that of a jury, we uphold if there is substantial evidence to support its action. Northwestern Natl. Ins. Co. v. Weast, 253 Ark. 710, 488 S.W. 2d 322.

The appellee was hospitalized in 1967 for a duodenal ulcer. However, in July, 1968, another doctor ruled out the possibility of an ulcer and determined she had a “spasmodic stomach.” In September, 1968, appellee sustained a compensable back injury arising out of her employment. Within a few days disc surgery was performed. It appears that two other operations were necessary: one in October, 1969, and the other in January, 1970. During her convalescence of approximately two years, various medications were prescribed which included Emperin Compound No. 3 for relief of pain. It contains aspirin which is considered ulcergenic. Also, Earidine, a muscle relaxant, was prescribed which is considered “mildly irritating.”

Appellee was again hospitalized in May, 1970, for tests because of her continued back pain. She was found to be suffering from an ulcer condition in addition to her original injury. She was treated for the ulcer along with traction and medication for her back. She was discharged after approximately twenty days which is the period of hospitalization at the cost of $1,769.05 that appellant denies as being compensable. There was medical evidence adduced from a treating doctor (Jennings) that “[T]hese ulcers were probably caused by ulcergenic medications. Of course, I am sure that the mental stress and strain of the pain in the low back certainly had its own share of contribution to the etiology of the ulcers, as well.” According to him he consulted with a gastroenterologist and “[O]n examination, it was felt that Mrs. Devazier [appellee] indeed had a gastric ulcer which he felt had its genesis in the psychological stress and medication related to the low back pain.” The appellee claimant testified that she took no medicine other than aspirin “occasionally,” except medication prescribed for her. She, also, stated in answer to a question if she took aspirin following her operation in October, 1968, “[N]o, the doctor gave me medicine to take after that.”

In view of the recited evidence, we must disagree with the appellant’s argument that appellee took ulcergenic medication “of her own motion” and, therefore, her treatment for ulcers was not connected with her back injury. The credibility of the witnesses and any conflict and inconsistency in the evidence were for the commission as fact finders to resolve. Kivett v. Redmond Company, 234 Ark. 855, 355 S.W. 2d 172 (1962), Dacus Casket Co. v. Hardy, 250 Ark. 886, 467 S.W. 2d 713 (1971). Certainly we cannot say there is no substantial evidence to support the commission’s finding that her ulcer condition and treatments were a consequence of appellee’s compensable injury. It follows that the appellant is liable for appellee’s hospital bill.

Appellant next asserts that it was error for the circuit court to order respondent to pay medical expenses not in issue and that had not been shown in the evidence. This judgment was predicated upon the commission’s finding and award that “[Rjespondents are further ordered to pay any medical bills associated with the above treatments that have not already been paid.” Certainly she received medical treatments for her ulcers. However, it is true that the only item of expense that was actually shown in evidence was the hospital bill. We do not construe the trial court’s order, based upon the commission’s finding and award, to preclude the right of the respondent to controvert any medical bill or treatment asserted by the claimant as being associated with her ulcers or eliminate the necessity for the commission’s approval of any controverted bills. Therefore, we deem the asserted error as being harmless and nonprejudicial.

Affirmed.


text:
    Vern BARNETT v. MARYLAND CASUALTY COMPANY
    5-6181
    490 S.W. 2d 784
    Opinion delivered February 25, 1973

      Douglas Bradley and Jon R. Coleman, for appellant.

      Barnett, Wheatley, Smith ir Deacon, for appellee.
   Frank Holt, Justice.

The only issue on appeal is whether the appellant’s residential homeowner’s insurance policy covered the fire loss of his electric cook stove which was not on the insured premises. Based upon a stipulation of facts, the trial court, sitting as a jury, adjudged that appellant recover nothing from the appellee insurer and dismissed appellant’s complaint. Appellant asserts that this adverse judgment is contrary to the law and facts and, accordingly, should be reversed. We cannot agree.

The appellant owned a rental house. A tenant purchased and installed the electric stove during his occupancy. When the tenant moved the appellant acquired ownership of the stove in payment of the tenant’s rental indebtedness. Appellant did not remove the stove. Within the month he again rented the house. His new tenant, an employee, had a stove which “would not fit in the space.” Appellant “loaned” the electric stove to his new tenant “with no additional rent being charged,” reserving the right to remove the stove at any time. About three months after renting the house to the new tenant, the house and stove were destroyed by fire. The agreed value of the stove is $326.

Appellant’s homeowner’s insurance policy on his own dwelling (not the rental house) provided coverage for “unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling ***while on the described premises and ***such unscheduled personal property while elsewhere than on the described premises, any where in the world.” (emphasis added) This coverage excluded “property rented or held for rental to others by the insured” and "business property while away from the described premises;...” These exclusions were pleaded as affirmative defenses and, also, that the coverage for unscheduled personal property included only such “personal property usual or incidental to the occupancy of the premises as a dwelling insured under the contract of insurance.”

It clearly appears that “such unscheduled property while elsewhere” must be “usual and incidental to the occupancy of the [insured] premises” in order to be covered by appellant’s homeowner’s policy. There is no evidence that appellant acquired, used or even contemplated the use of this particular electric stove in his own residence. To the contrary, the electric stove was acquired in connection with a business or the rental of a house. The stove, so acquired, was left in the rental house, as a loan, since the tenant’s stove wouldn’t fit. A contract of insurance, like other contracts, must be accorded a reasonable interpretation in giving legal effect to its language and provisions. Aetna Life Insurance Co. v. Spencer, 182 Ark. 496, 32 S.W. 2d 310 (1930). In the case at bar, we cannot say the trial court’s interpretation is unreasonable nor that the court’s finding is unsupported by substantial evidence.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    PROCTOR SEED & FEED CO., Inc. v. HARTFORD ACCIDENT AND INDEMNITY CO & INSURANCE CO. OF NORTH AMERICA
    5-6175
    491 S.W. 2d 62
    Opinion delivered March 5, 1973
    [Rehearing denied April 16, 1973.]

      N. M. Norton, for appellant.

      Shaver ir Shaver, for appellee.
   Carleton Harris, Chief Justice.

Proctor Seed 8c Feed Company, Inc. (hereinafter called Proctor) instituted suit in December, 1968, against one Carruth Linn in the St. Francis County Circuit Court seeking judgment against Linn on an account and note. Linn filed a cross-complaint (counter-claim), seeking damages against Proctor for allegedly converting his soybeans, trespassing on land leased by him in order to convert said soybeans, and seeking punitive damages for the conversion of the beans because conversion was willful, wanton and malicious» and further asking that said damages be offset against any judgment that Proctor might obtain against him. The cross-complaint was unsuccessful but Proctor incurred an expense of $2,214.50 for attorneys’ fee and costs. Prior to this litigation, Hartford Accident 8c Indemnity Company (hereinafter called Hartford) and Insurance Company of North America had issued to Proctor insurance policies which, according to Proctor, obligated them to defend against the counter-claim made by Linn. Accordingly, Proctor instituted suit against Hartford and Insurance Company of North America asserting that though put upon notice, the companies had failed to undertake his defense, and that he had accordingly been forced to employ attorneys and defend the suit at a cost in attorneys’ fees and other expenses in the total amount of $2,214.50. Judgment was prayed against the companies for this amount. Each side moved for a summary judgment, appellees supporting their motions with the policies sued upon and copies of the cross-complaint and amended cross-complaint in the action between Proctor and Linn. Thereafter, Proctor likewise asked for a summary judgment supporting it with an affidavit of Phil Hicky, the attorney who represented Proctor in the litigation with Linn. The court granted the summary judgment sought by the companies and from that judgment, Proctor, appellant herein, brings this appeal.

For reversal, it is simply asserted that there are no genuine issues of material fact, and that as a matter of law, upon the undisputed facts and pertinent provisions of the Hartford policy, the trial court should have overruled the motion for summary judgment made by this appellee, but granted the similar motion made by appellant.

The provision of the policy depended upon by appellant reads as'follows:

“The company will pay on behalf of the insured all sums which insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence,. . . .”

“Occurrence” is subsequently defined as “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured;. . . .”

Relative to the Proctor-Linn litigation, a “cross-complaint and set-off” was filed by Linn asserting that Proctor had “appropriated and converted to the plaintiff’s use 795 bushels of soy beans wholly without the defendant’s permission or authorization, and sold said soy beans for $2.43 per bushel in the plaintiff’s name. * * * The soybeans which were converted by the plaintiff were grown and harvested for the purpose of planting as seed beans and as such had a market value of $4.00 per bushel, $3,180.00. The cost of sacking and cleaning said beans would have been $302.10, leaving a net market value of the beans converted by plaintiff at $2,877.90, thereby causing direct damage to the defendant by reason of such conversion in the amount of $945.05.”

By amendment, Linn asserted he was entitled to treble the value of the soybeans since in acquiring such beans, Proctor Seed 8c Feed Company, by its agent, was trespassing on the land leased by Linn when the beans were taken; that plaintiff’s acts were “willful, wanton, and malicious”. Linn likewise sought $20,700 as the difference in the value of the bean crop he actually made and the value of such crop which would have been made had plaintiff not converted the said beans, “which were of a higher quality than the seed beans he was able to obtain to replace his own.”

By still another amendment, Linn changed the amount alleged as damage, and wound up seeking total damages in the amount of $30,041.00. Of course, it is at once apparent that the allegations in the counterclaim do not in any manner relate to an “accident”, and under the provisions of the policy, coverage is limited to an accident.

In Equity Mutual Insurance Co. v. Southern Ice Co., 232 Ark. 41, 334 S.W. 2d 688, this court definitely held that the insurer’s obligation to defend the insured is based upon the allegations of the complaint filed against the insured. We said:

“The great weight of authority, in cases like this and involving the insurer’s duty to defend, is that the allegations in the pleadings against the insured determine the insurer’s duty to defend. It is not what the insurance company may have gleaned from its outside investigation: it is the allegations made against the insured — however groundless, false, or fraudulent such allegations may be — that determine the duty of the insurer to defend the litigation against its insured.

See also Fisher v. The Traveler’s Indemnity Company, 240 Ark. 273, 398 S.W. 2d 892, and cases cited therein.

Appellant argues, however, that the facts in this case are vastly different from those in the cases cited, and that we have also said that there are exceptions to that general rule, citing Employers Mutual v. Puryear Wood Products Co., 247 Ark. 673, 447 S.W. 2d 139. We commented as follows in that case.

“We have held that the allegations in a complaint determine the obligation of the insurer to defend its insured Fisher v. The Traveler’s Indemnity Company, 240 Ark. 273, 398 S.W. 2d 892, and cases cited therein. However, appellant does not contend that this court, in determining this question, is confined to those allegations. That complaint alleges that the trailer was in the care, custody and control of Puryear, but it also alleges that the damage to the trailer wás a result of the negligence of Puryear. Since it would be possible that a jury could find that the loss was due to Puryear’s negligence without also finding that the trailer was in its care, custody and control, it is apparent that appellant’s obligation to defend cannot be determined simply from the allegations in the Landon complaint.”

In Puryear, the words construed were “care, custody and control of insured” and the situation was entirely dissimilar to the instant case; it will also be noted that the insurance company was not contending that the allegations were controlling. However, we reiterate that there may well be situations where an insurance company’s obligation to defend cannot be determined simply from the allegations in the complaint. However, this is not such a case. Appellant says that the obligation to defend should be determined on the basis of the facts actually known by the insurance company, rather than by the allegations in the cross-complaint filed by Linn, and appellant apparendy relies upon the affidavit of Mr. Hicky as showing that the company was acquainted with facts which were dissimilar and not in accord with the allegations in the pleading. Even if we were inclined to the belief that this is the type of case that might prove to be an exception to the general rule, we find no evidence that the company was familiar with facts that obligated it to defend. In his affidavit, Mr. Hicky stated:

“5. Upon the filing of the original counterclaim, we notified the defendant, Hartford, of what was going on, but we were not greatly concerned when Hartford raised some question about whether the claim fell within the coverage of its policy, because the amount involved in the counter-claim at that point was small in comparison to the amount being sued for in the complaint, and it was doubtful whether that claim would be collected in full under the best of circumstances.
6. Upon the filing of the amendment, however, introducing the additional claim for treble damages, loss of profits, and punitive dámages, we did become concerned, because the amount then being sued for by Mr. Linn very substantially exceeded the amount being sued for by our client, and from that point on the two insurance companies were provided by me with copies of all pleadings, and I was frequently in communication with them, principally by telephone, on the question whether they were going to undertake the defense of the counterclaim and treat that claim as covered in event Mr. Linn should effect a recovery on it.”

We do not know what facts were supplied to Hartford by Mr. Hicky, nor do we know what pleadings Proctor filed in response to the counter-claim since a copy of Proctor’s pleadings is not abstracted nor included in the transcript.

A letter written by Hicky to Hartford appears in the transcript, but this letter was not abstracted, appellant mentioning specifically that the letter was not being abstracted. For that matter, the letter was written after the trial of the lawsuit, which could hardly be pertinent to whether the company breached its contract in not defending the litigation. At any rate, we think Equity Mutual Insurance Co. v. Southern Ice Co., supra is controlling. This finding, of course, settles the litigation and precludes any discussion of the second part of appellant’s point where it asserts that the court should have granted its motion for summary judgment. It might be stated that we have said that we cannot pass on the question of whether a summary judgment should have been granted, for this is not an appealable order. See Widmer v. Ft. Smith Vehicle & Machinery Corp., 244 Ark. 971, 429 S.W. 2d 63.

Affirmed.

       Appellant concedes that, because of the particular wording of the policy, the judgment in behalf of Insurance Company of North America should be affirmed.

       “We do not abstract the letters referred to in Attorney Hicky’s affidavit. They were to lay people in the insurance companies’ organizations, who had been making the contention that the claim was not covered because of an exclusion as to damage to property in the care, custody, or control of the insured. Once the matter got into hands of attorneys, that contention disappeared and as far as we can tell it does not now figure in the case. (R. 81-92) In addition, it apparently is not being argued that the insurance company was not kept adequately informed by Attorney Hicky at all times.”


text:
    OCOMA FOODS and TRAVELERS INSURANCE COMPANY v. Marie GROGAN
    5-6190
    491 S.W. 2d 65
    Opinion delivered March 5, 1973

      James F. Dickson, for appellants.

      M. D. Anglin, for appellee.
   Carleton Harris, Chief Justice.

Marie Grogan, appellee herein, commenced work for Ocoma Foods on September 9, 1952, and continued such employment until March 6, 1970, at which time she left, and has not since attempted to returned to work. During these years, she performed a variety of tasks, but was primarily a “saw girl” which involves moving whole chicken breasts through an automatic saw in order to separate them into two pieces. This work normally is performed while sitting down; Mrs. Grogan occasionally performed other duties such as “dipping turkeys” and weighing livers and hearts. Early in 1962, she began experiencing back pain and consulted Dr. Rhys Williams of Harrison, who referred her to Dr. John Tsang, a neurosurgeon who has treated Mrs. Grogan intermittently since May 5, 1962. Mrs. Grogan gave a history of persistent low back pain which had existed for some months prior to the date of examination, radiating into her lower left extremity. Dr. Tsang diagnosed a protruded intervertebral disc at L4 and in May, 1962, the doctor performed a laminectomy at L4. After recovering from the surgery, Mrs. Grogan returned to work at Ocoma but again went to Dr. Tsang on October 23, 1962, giving a history of low back pain radiating into her lower right extremity. The doctor ultimately diagnosed a second protruded disc at L4 and performed a second laminectomy on November 6, 1962. Following her recovery, Mrs. Grogan returned to work, but again visited Tsang on January 30, 1965, and again gave a history of recurrent low back pain radiating into the left extremity. A third laminectomy at L4 was performed by the doctor on February 2, 1965, after which she again returned to work at Ocoma following recovery. On October 28, 1968, Mrs. Grogan once again consulted Dr. Tsang, giving a history of recurrent low back pain radiating into the right extremity. On this occasion, the doctor recommended non-surgical treatment and advised her to consult another neurosurgeon or orthopedic surgeon about the possibility of spinal fusion. She did not follow this advice, however, but again returned to work at Ocoma. After quitting her job in March, 1970, she again visited Dr. Tsang and again complained of lower back pain radiating into the lower right extremity. The doctor diagnosed lumbosacral strain along with a post-operative state resulting from three lumbar laminectomies and recommended non-surgical treatment, including the wearing of a corset. Mrs. Grogan was advised not to return to work for one year pending further examination.

On October 26, 1970, Mrs. Grogan filed a claim for workmen’s compensation benefits alleging that she had sustained injury to her lower back and claiming medical expenses, doctor bills, hospital bills, weekly payments, and compensation for the percentage of injury to the body as a whole. Ocoma and Travelers Insurance Company, its carrier, controverted the claim, contending that she sustained no injury arising during the course of her employment; that she failed to notify respondents of any injury, and that any claim was barred by limitations. A hearing was conducted by a referee who, at the conclusion thereof, found that Mrs. Grogan’s work aggravated a preexisting back condition, causing her to terminate her employment, and that she was temporarily totally disabled for a period of one year from March 29, 1970 as a result of the aggravation; he also found that her claim for benefits prior to October 26, 1968, was barred by limitations. Claimant was awarded a lump sum payment for temporary total disability, awarded all medical expenses incurred on or after October 26, 1968, and the question of permanent partial disability was held in abeyance. On appeal to the full commission, the decision of the referee was affirmed with one dissent, and on appeal to the Circuit Court of Carroll County, the order of the commission was affirmed. From the judgment so entered, appellants bring this appeal. For reversal, it is asserted that there was no substantial evidence to support the findings of the commission.

We agree with appellants that there is no substantial evidence that Mrs. Grogan sustained an accidental injury arising out of and in the course of her employment. Claimant stated that she first noticed back trouble in 1962, having a “catch” in her back, but she did not know what caused the trouble. No report of an injury was made to any official of the company. Dr. Williams testified that he first saw Mrs. Grogan in March of 1962 for a complaint of a pain in her back that had been present for quite some time. The doctor stated that she denied any history of trauma, and he recommended that she see Dr. Tsang. Dr. Williams had no opinion as to the cause of Mrs. Grogan’s condition.

Dr. Tsang testified that from the time Mrs. Grogan commenced seeing him for her back condition, she had never indicated that she was injured in any respect, and his records indicated that no trauma was involved in her problem; he testified that she had mentioned that her job (passing chickens through a sawing machine) required no physical exertion, and he could not say that her work caused a disc herniation. The most that Dr. Tsang would state was that exertion, lifting, straining, stretching, or any kind of hard labor could possibily have aggravated her existing condition — “Well, it’s possible that physical exertion, as you describe, could have aggravated her condition.” However, he also stated that any type of movement, exercise, whether work on the job or housework, or even normal activities, could likewise aggravate the condition. He also said that coughing or sneezing seemed to aggravate Mrs. Grogan’s pain. The first report that Dr. Tsang made to Dr. Williams, after seeing Mrs. Grogan initially on May 5, 1962, was as follows:

“PRESENT COMPLAINTS:
1) Persistent low back pain for two months.
2) Associated with radiating pain into her left hip, left leg, and left foot.
3) Left leg “goes to sleep”, at times.
PRESENT ILLNESS:
She began to notice those aforementioned symptoms two months ago with no history of injury. Coughing and sneezing would aggravate those pains. Lying down on a firm mattress relieved some of her suffering. She was in hospital for traction during early part of April with no remarkable improvement. She has not been able to work since April 1, 1962.”

Dr. Tsang subsequently testified that his medical records clearly revealed no neurological changes in Mrs. Grogan since 1965.

Mrs. Grogan herself stated several times that she sustained no specific injury at any time; that the visits to Dr. Tsang were not occasioned by any injury and it is uncontroverted that she never notified any fellow employee or official of Ocoma Foods, either orally or in writing, of any injury sustained by her in the course of her employment. Several employees of the company testified that they had heard Mrs. Grogan mention that her back was hurting, but they had never heard her complain of any injury sustained on the job.

As stated, the most said by Dr. Tsang was that it was possible that her work aggravated her existing back condition, although the doctor also said that any type of work, at home or otherwise, possibly would have had the same effect. It is true that we have approved some commission awards where those furnishing the medical evidence used the terms “possible”, “might”, and “could cause”. Kearby v. Yarbrough Bros. Gin Co., et al, 248 Ark. 1096, 455 S.W. 2d 912, Exxon Corp. v. Fleming, 253 Ark. 798, 489 S.W. 2d 766. In both cases, however, the condition suffered by the claimant was, under the evidence, tied in with the employment. In Kearby v. Yarbrough Bros., supra, though the fatal heart attack occurred after Kearby returned to his home from work, evidence reflected that Kearby had been working long hours for several weeks; that he was afflicted with chronic bronchitis with pneumoconiosis and that this chronic condition was related to his working environment; that he was suffering prior to going to the gin on November 17 (date of the attack) and had in fact received medical attention before going to work that morning. It was pointed out by Yarbrough that Kearby’s doctor would not give a positive conclusion on the causal relationship between the work and the heart attack stronger than that there could be a connection. In upholding the commission and reversing the circuit court, we quoted the Court of Civil Appeals of Texas (San Antonio) as follows:

“In determining whether or not a showing of mere possibility and no more has been made, all of the pertinent evidence on the point must be considered. The fact that an expert medical witness, in speaking of cause and effect uses such expressions as ‘might cause’, ‘could cause,’ ‘could possibly cause,’ or phrases similar thereto does not preclude a jury finding of causal connection, provided there be other supplementary evidence supporting the conclusion.”

In Exxon Corp. v. Fleming, supra, Fleming received a brain injury on the job, and we held there was substantial evidence to support the commission in its finding that a subsequent heart attack was related to the injury received on the job. But here, there was never any injury on the job and no evidence that there was a causal relationship between the employment and the disability. In Young v. Flanders Mfg. Co., 245 Ark. 976, 436 S.W. 2d 100, we commented that although several doctors, including Mrs. Young’s physicians, treated Mrs. Young after a 1964 injury, not a single one expressed the opinion that the injury described by claimant was the cause of the condition of the cervical spine. Here, two physicians of Mrs. Grogan’s choice had examined and treated her, and neither would express the opinion that her work was the cause of her ailment. In Farmer v. L. H. Knight Co., 220 Ark. 333, 248 S.W. 2d 111, we pointed out that the burden of proof is on the claimant to show that the injury or death of the employee was the result of an accidental injury that not only arose in the course of the employment, but in addition, that it grew out of, or resulted from, the employment. That burden has not been met in the instant case.

Under this finding, there is no necessity to discuss the question of whether Mrs. Grogan’s claim was barred by the statute of limitations.

The judgment of the Carroll County Circuit Court is accordingly reversed with directions to reverse the award made by the commission.

It is so ordered.


author: George Rose Smith, Justice.

text:
    Curtis Lee JACKSON v. STATE of Arkansas
    5803
    491 S.W. 2d 581
    Opinion delivered March 5, 1973
    [Rehearing denied April 9, 1973.]

      George Howard Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by Gene O’Daniel, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Jessie Dew and the appellant, Curtis Lee Jackson, were jointly tried upon a charge of having burglarized a car. Dew was acquitted, but Jackson was found guilty and sentenced to two years imprisonment. For reversal he argues that certain evidence should have been suppressed, as having been illegally seized by an officer acting without a search warrant, and that Jackson was prejudiced by the court’s action in allowing a modified version of Dew’s confession to be read to the jury.

We find no merit in the first point. At about midnight on November 23, 1971, the night desk clerk at a Pine Bluff motel saw two men take clothing and boxes from a brown Corvair car and carry them toward the back of the motel. At the same time a guest in the motel saw the men take two suitcases from the Corvair and put them in a 1956 red and white Chevrolet. The matter was immediately reported to the police, who investigated at the motel and broadcast the description of the car, stating that it was occupied by several black men, A car fitting the description was stopped by Officer Pippins (who was looking for the vehicle) at an intersection apparently eight blocks from the motel. Jackson was driving the car, and Dew was in the front seat. The officer saw one of the stolen suitcases in the back seat and, upon searching the car, found another one in the trunk.

Under the ruling in Chambers v. Maroney, 399 U.S. 42 (1970), the suitcases were properly admitted in evidence. In Chambers a car was similarly stopped on the basis of a description given by eyewitnesses who had seen it speed away from a parking lot in the vicinity of a filling station that had just been robbed. In upholding a warrantless search of the car at the police station, on the basis of probable cause, the court said:

“For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
“On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to seafch and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car ...”

The court added that “for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars.” Upon the authority of that case the search in the case at bar was proper.

The appellant’s second point for reversal complains of the introduction by the State of codefendant Dew’s confession, which implicated Jackson. In Bruton v. United States, 391 U.S. 123 (1968), the court held that an accused person’s constitutional right to be confronted with the witnesses against him, which includes the right to cross-examine them, entitles him to object to a codefendant’s confession which also inculpates him. The court further held that the error is not cured by an instruction telling the jury that the confession can be considered as evidence only against the confessing defendant.

In following the Bruton case in Mosby and Williamson v. State, 246 Ark. 963, 440 S.W. 2d 230; (1969), we suggested that such a confession might be rendered admissible by the deletion of the references to the non-confessing defendant. Here the trial court attempted to follow our suggestion, by striking out all references to Jackson by name and substituting phrases such as “a friend of mine.” The appellant insists that the revised confession nevertheless so unmistakably referred to Jackson as to be inadmissible.

We need not determine whether Dew’s edited confession would have been admissible under Bruton, for later in the trial Dow testified in his own defense, denied the truth of his confession, and corroborated Jackson’s statement that the suitcases had been put in the car by an unknown man who caught a ride with Jackson and Dew near the motel and fled when the police car approached with its blue light on. In a case decided after Bruton the Supreme Court held that when the proceedings take the turn that we have just described, there is no denial of the right of confrontation. Nelson v. O’Neil, 402 U.S. 622 (1971). From that opinion:

“It would be unrealistic in the extreme in the circumstances here presented to hold that the respondent was denied either the opportunity or the benefit of full and effective cross-examination of Runnels.
“We conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.”

It follows that there is no merit in the appellant’s second contention.

Affirmed.


text:
    Richard Monroe SIMS v. STATE of Arkansas
    5819
    491 S.W. 2d 583
    Opinion delivered March 5, 1973

      Howard, Howard <¿r Howard, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Frank B. Newell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

According to the State’s proof, four men, one of whom was armed with a pistol, robbed the Rosedale Drug Store in Little Rock on January 24, 1972. Two of the men, Tommy Stacker and the appellant Sims, were tried jointly. Sims was found guilty and, as a habitual offender, was sentenced to 21 years imprisonment. A mistrial was declared with respect to Stacker, the jury being unable to agree upon a verdict.

Sims first complains of the admission in evidence of Stacker’s confession from which all references to Sims by name had been deleted. Stacker later testified in his own defense, denying that he voluntarily signed the confession and insisting that he had no part in the robbery. For the reasons stated in Jackson v. State, 253 Ark. 1116, 491 S.W. 2d 581, also decided today, there was no denial of Sims’s right to be confronted with the witnesses against him, for he unquestionably had an opportunity to cross-examine Stacker.

Upon the appellant’s second point for reversal, we cannot say that the trial judge, after having found Sims’s own confession to have been voluntary, erred in submitting the issue of voluntariness to the jury. See Walker v. State, 253 Ark. 676, 488 S.W. 2d 40 (1972), and cases there cited. The court’s action was certainly not prejudicial, since it afforded Sims a second opportunity to obtain a favorable decision upon the issue of voluntariness.

Finally, the State called Charles Moorman as a witness. Moorman admitted having participated in the robbery of the drug store, but he surprised the prosecution by denying that Sims and Stacker participated in the crime. Sims nevertheless complains of this question and answer, from Moorman’s testimony:

“Q. Were these two men with you when that drug store was robbed?
“A. No, sir; they wasn’t. I never robbed anything with those two gentlemen.”

The appellant contends that Moorman’s answer might have been construed by the jury to mean that Moorman had participated in other crimes with Sims and Stacker, but that remote possibility is far too conjectural to represent prejudicial error.

Affirmed.


author: Lyle Brown, Justice.

text:
    Troy W. ENGLISH v. Mittie C. ENGLISH
    5-6192
    491 S.W. 2d 60
    Opinion delivered March 5, 1973

      N. D. Edwards, for appellant.

      Wiggins ir Christian and Ralph W. Robinson, for appellee.
   Lyle Brown, Justice.

This suit was instituted by Mittie C. English against her son, Troy W. English to set aside two deeds. Title to the property was originally in Henry English and Mittie C. English as husband and wife. Henry English died in 1950. In 1971 Mittie C. English was persuaded to place title in herself and her son as joint tenants with the right of survivorship. It is the latter conveyances which the suit sought successfully to set aside. Mittie C. English died before the trial ended and suit was revived with her other children being substituted as plaintiffs. Notwithstanding, the appeal was lodged showing Mittie C. English as appellee. Be that as it may, the rights herein which would have inured to the benefit of Mittie English shall vest in the named survivors.

Mittie C. English was 84 years old at the time of her death. For a number of years she had lived alone on the farm property in question. In 1961, Troy English, who had lived in California much of his adult life, arrived at the homeplace to live with his mother. During the ensuing months some type of conveyance was drafted concerning the property; however, the living arrangements proved unsatisfactory. Thereupon Troy destroyed the conveyance and returned to California in 1963. In 1969 Troy made his second appearance at the homeplace, ostensibly to make his home with his mother. The deeds creating the joint tenancy were executed on May 28, 1969. In May 1971 Mittie English brought her action to cancel the conveyances, alleging fraud and undue influence. The chancellor found that it had been established by clear and convincing evidence that the son had overreached the mother; that there was no consideration for the execution of the conveyances; and that the son was physically unable to care for his mother, as he had promised to do in return for her executing the conveyances.

It was appellee’s testimony that she was in poor health when Troy came to her home on March 1, 1969, and said he had come to live with her. At that time the home consisted of one large room, a kitchen and a bath. Troy said he was going to take care of her, add a room to the house and repair the house; that he would fix the fences, clear land and repair the road. Then she said he began talking about a deed and it was discussed off and on for some two months. She related that her son did not live up to any of his promises. Then on May 28, 1969, her son brought a notary public to the house. A portion of Mrs. English’s abstracted testimony gives her description of that meeting:

They read it to me but I was real sick and I can’t remember anything he read and I couldn’t read or see or understand what it was. All I remember was at the last, was all of one-half of the oil rights, that’s all we get. I just didn’t realize, I don’t know whether I was doped or what, but I told him I didn’t want to for it was against what I promised dad that I would not sell it or let just one have it. I didn’t really know I was deeding it to him. I didn’t really know it was a deed. The real estate man read it to me. When they came I got up out of my chair, and I met them. I couldn’t know who they was for I can’t see. He says “Mother, I’ve got some papers for you to sign”. By some means, I don’t know why, I signed them and I didn’t know they was deeds.

One of the children testified on behalf of the mother. The daughter lives in Van Burén, which is not far from Ozark, and after her mother fell in March 1969, the daughter has averaged coming to the farm twice a week. The daughter, Henryetta Freeman, said she did cooking, washing and house cleaning for her mother. Henryetta corroborated her mother’s testimony to the effect that Troy was not at the place nearly all the time; in fact it was testified that he went to Springdale and worked in the chicken industry for several weeks.

To the contrary, Troy English described himself as being attentive to his mother. He said he made no promises in consideration of the creation of the joint estate in the homeplace. He quoted his mother as saying that all the other children had their own homes and families and could not afford to stay with her. It was his mother’s idea, so he testified, that the title be changed. He said his mother was solicitous about his staying with her. He said the execution of the deed was a calm and deliberate act and in that connection he was corroborated by the notary public. On cross-examination it was elicited that Troy did not advise his bothers and sisters that the mother was making a deed. Also, Troy testified that he expressed to his mother his intention of doing all that he was physically able to do about the place; and that he was afflicted with Parkinson’s disease which had progressed since 1945.

Cases of this type must stand or fall on the basis of the peculiar facts and circumstances applicable thereto. It would therefore serve as no real precedent for all the evidence to be detailed, especially since we are affirming the chancellor. The chancellor specifically found (1) that the evidence of overreaching was clear, cogent and convincing; (2) that there was a total failure of consideration; and (3) that appellant did not perform those chores which appellee had been led to believe would be carried out by him. In other words the chancellor attached greater credibility to the evidence offered by appellee and we certainly cannot say it was error.

Affirmed.