author: Darrell Hickman, Justice.

text:
    Ruth Della SUMLIN v. STATE of Arkansas
    CR 78-168
    587 S.W. 2d 571
    Opinion delivered October 15, 1979
    (In Banc)

      Solloway & Jackson, P.A., by: Lanny K. Solloway, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

On Thanksgiving day in 1977, Ruth Della Sumlin participated in an escapade that resulted in her being charged with capital murder. She was charged with the murder of J. Y. Cooper in the course and furtherance of being an accomplice to escape in the first degree. She was also accused of robbing Cooper. She was tried in the Columbia County Circuit Court, convicted and sentenced to life imprisonment without parole.

On appeal she alleges nine errors. We find on review none of these errors require reversal of the conviction or sentence. We have also examined the record for all other legal errors, as is our practice in cases of like punishment, and finding none prejudicial, affirm her conviction and punishment.

The facts concerning a jail break from the Columbia County Jail, around which all events of this case focus, are not seriously disputed.

Ruth Sumlin, formerly Ruth Brewer of Bradley, Arkansas, was a college student at Magnolia when she met Sumlin in October, 1976. She knew him as Warren Andrews from California. According to her, they kept steady company after they met. At the end of school in May, 1977, she only lacked a few hours toward a degree in psychology. She did not return to school in the fall of 1977, reciting a lack of money as the cause. She married Sumlin on October 2, 1977, while he was in the Columbia County Jail. Warren Sumlin, known to her as Andrews, had been in jail since August, 1977, pending the outcome of extradition proceedings initiated by California on a murder charge.

There is no doubt they had discussed breaking him out of jail, either by way of her supplying him a gun, or by forcing the jailer to release him. They discussed getting J. Y. Cooper’s car for the escape. She was allowed generous visiting privileges with her husband by the jailers, both of whom were later fired for their laxness.

On Thanksgiving evening about 10:00 p.m., she went to the jail, held a pistol and knife on the jailer and forced him to open the cells. Five prisoners escaped, including Warren Sumlin; several other prisoners voluntarily remained at the jail.

Warren and Ruth Sumlin, Thurman Moore, Jr., and Jackie Moore left the jail in a Pontiac automobile which belonged to J. Y. Cooper. About four hours later the Sumlins were in the custody of the Fordyce city police; Thurman Moore, Jr., was in custody and hospitalized for gunshot wounds; Jackie Moore was missing and remained so until he was located in Michigan several months later. The other escapees were rounded up that night by local law enforcement officers.

The nest day, Friday, J. Y. Cooper’s body, clothed only in socks and an undershirt, was found by two hunters on a logging road east of Magnolia. He was dead, having been shot through the temple; there was also evidence his sexual organs had been mutilated.

The State’s case was that Ruth Sumlin had killed J. Y. Cooper, emasculated him and took his car to be used as a getaway vehicle, forced the jailer to release the prisoners and then joined the escapees in flight.

Ruth Sumlin gave two versions of what transpired. In a statement to the police officers she admitted planning to get Cooper’s vehicle to be used in the escape. She explained she and Cooper had been out before and that she and Warren Sumlin had discussed getting Cooper’s vehicle. She went out with Cooper that afternoon, later that evening they drove to a back road and had sexual intercourse. Then she shot Cooper and took his car. Later she forced the jailer to release the prisoners at gun and knifepoint.

In her testimony at the trial she largely repudiated this statement. She admitted having sexual intercourse with Cooper — they had seen each other on other occasions — but denied she killed him. She said he was in the back seat of his car, drunk, when they all got in the car after the jail break. She said Warren killed Cooper later, or at least he took Cooper down the road and when she heard a shot, assumed he had killed Cooper. She said Warren killed Cooper because he knew Cooper had “disrespected” her.

She denied at all times mutilating Cooper’s sexual organs, suggesting that the car had backed over his body, or perhaps Warren Sumlin had done it. There was evidence the car ran over Cooper’s legs.

The two escapees did not fare well on their journey with the Sumlins. Both testified for the State and gave similar versions of what transpired.

Thomas Moore, Jr., who had been in jail about two weeks, said he knew in advance of the jailbreak. He said he saw Ruth Sumlin hold a gun and knife at the back of the jailer before the cells were opened. Jackie Moore said he saw her with a gun on the jailer. Both stated they were with the Sumlins at all times until they left the car near Fordyce; both said no one else was in the car — contradicting Ruth’s trial version that Cooper was in the back seat drunk and was later shot by Warren Sumlin.

Both Moores rode in the front seat of the Pontiac, first one and then the other drove. The Sumlins were in the back seat. They first stopped in Magnolia for gas, and then at Cairo for liquor. Next, they drove to El Dorado, trying to decide what to do; they then headed back north on the highway toward Fordyce.

According to Ruth, Warren was drinking heavily during the trip and he became unruly. More liquor was found in the trunk of the car which he began to consume. She said Warren took about $35.00 from Cooper’s wallet which was in the car. Warren Sumlin learned that one of the Moores had about $160.00 and he decided to kill them both. He had been shooting a pistol — she had found Cooper’s .22 caliber pistol and Warren Sumlin had it — out of the speeding car. He told her to shoot one at the same time he shot the other. His gun “clicked” several times, apparently misfiring, then it fired; then she fired her gun. Apparently the car was stopped at this time, and both Moores bailed out immediately after the shooting. Both Moores had been struck by bullets, Jackie in the head, Thurman in the neck. Thurman ran and hid in the woods, Jackie ran down the road. Sumlin pursued, firing his gun. Ruth Sumlin also fired her gun at them. Jackie Moore was able to escape, eventually reaching Michigan.

About this time two strangers happened along in a vehicle. Warren was still chasing the Moores; Ruth, in trying to drive the car, had run it into the ditch. The strangers stopped to help with the car and then Warren came back. According to Ruth, he robbed one of these men of his billfold after he shot him, and they took the strangers’ vehicle.

A Fordyce policeman came on this scene, about seven miles from Fordyce, in answer to a radio call and gave chase to the Sumlins. He was able to stop them; Ruth ran to the policeman who put her in his vehicle. According to Ruth and the policeman, Warren Sumlin tried to drive off and being foiled in his efforts, rammed the strangers’ vehicle into the policeman’s car. He was subdued and arrested at this time.

It was about 2:00 a.m., the day after Thanksgiving, when the Sumlins were taken into custody by the Fordyce policeman.

Ruth Sumlin remained in the custody of the Fordyce police until she was transferred to the custody of Dallas County Sheriff, Joe Pennington, about daylight, the 25th of November. She remained there until about 7:00 p.m., when she was transferred to the Columbia County Jail. On Sunday, the 27th, the Columbia County Sheriff told Ruth Sumlin he was transferring her to the El Dorado jail. At this time she made a statement. Before, she had refused to talk either with Dallas or Columbia county officials.

The State’s case against Ruth Sumlin regarding the jail break was strong. There were many witnesses telling substantially the same story — she forced the escape as we have described.

The evidence conflicted regarding the murder of Cooper and his emasculation. In her confession she admitted shooting Cooper, but in her testimony she denied it. She explained that she had been covering up for Warren Sumlin and had decided to tell the jury the truth. She testified Warren Sumlin killed Cooper. A good deal of testimony conflicted with her trial version of the events.

The medical officer who performed the autopsy on Cooper said Cooper was killed by a gunshot wound to the head. No alcohol was found in Cooper’s bloodstream. The scrotum and perineal area had been cut with an edged instrument. The scrotum and its contents were absent.

Cooper had type O blood. A crime laboratory technician testified that he found human type O blood on the blade of a knife, one found in Ruth Sumlin’s purse when she was arrested.

Tissue paper, containing semen and blood, was found around Cooper’s body. This evidence was all consistent with the State’s theory of the case that Cooper and Ruth Sumlin had intercourse beside the road and that Ruth Sumlin killed Cooper at the same place. She said the tissue paper must have been thrown from the car since she claimed in court that the sexual act occurred in the back seat — where Cooper remained drunk until Warren Sumlin killed him. It was coincidental she explained that Warren Sumlin killed Cooper at the same place she and Cooper had intercourse hours before.

The appellant, Ruth Sumlin, does not argue there was not substantial evidence to support her conviction, as there no doubt was. Her arguments are mostly procedural, that certain evidence was improperly admitted and the court made procedural mistakes, prejudicing her right to a fair trial.

The first allegation of error is regarding the in-custody statement of Ruth Sumlin; that it was inadmissible because it was not voluntary.

The law is well settled in this area, being only a matter of applying the law to the facts of this case. The State has the burden of proving an in-custody statement is voluntary. Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977); Boyd et al v. State, 230 Ark. 991, 328 S.W.2d 122 (1959). On appeal we make an independent determination, considering the totality of the circumstances surrounding the statement, of whether the statement was voluntarily given. The trial court found Ruth Sumlin’s statement voluntary and we will not reverse that finding unless it was clearly erroneous. Bell & Walker v. State, 258 Ark. 976, 530 S.W.2d 662 (1975); Harris v. State, 224 Ark. 314, 425 S.W.2d 293 (1968). Often a factor is the ability of a defendant to understand his rights. Whitmore v. State, 263 Ark. 419, 565 S.W.2d 133 (1978).

We conclude the essential circumstances surrounding the appellant’s statement are as follows. Ruth Sumlin had completed 3 Vz years of college toward a psychology degree. There is no evidence she suffered from any physical or mental infirmity. She was advised of her rights by every law enforcement department that had custody of her, the Fordyce City Police, the Dallas County Sheriff’s office, and the Columbia County Sheriff’s office. While she was handcuffed to a chair for a good part of the 25th of November, she was not physically abused. She admitted she was not threatened but she did complain an officer talked roughly to her once when she was on the phone.

While she was in Dallas County the officers were still looking for escapees and Cooper’s body was discovered. Considering she was a participant in a major jailbreak, the officers were not intolerant of her nor abusive of her.

She refused to talk to the authorities after twice being warned of her rights. The evidence indicated she asked for a lawyer. A great preponderance of the evidence reflects the officers ceased questioning her when she asked for a lawyer.

After she and Warren Sumlin were taken to the Columbia County Jail, the evening of the 25th, she was again informed of her rights and refused to make a statement.

Sunday, the sheriff told her she was being transferred to El Dorado. The sheriff in his testimony explained he had no facilities for a female prisoner.

The sheriff’s version and hers do not vary greatly as to exactly what was said. The sheriff said she wanted to stay near her husband and decided to make a clean breast of it. She said the sheriff asked if she wanted to talk before they went to El Dorado.

There is no doubt she asked for a chance to talk to her husband first. She was allowed to do so and told him she was going to make a statement. She said he told her to remain quiet and get a lawyer. She testified she decided to talk anyway because she could not change her mind once she told the officers she would make a statement.

She also asked to be permitted to make a phone call before making a statement. She was allowed to call a neighbor of hers; she told her she was going to confess.

Then she made a statement on tape, which was used later in her trial. It opened and closed with her being informed of her rights. Never once did she say she wanted a lawyer.

The single fact she had once asked to see a lawyer does not vitiate her subsequent statement. See Michigan v. Mobley, 423 U.S. 96 (1975) and compare with Rutledge v. State, 263 Ark. 781, 567 S.W.2d 283 (1978). Otherwise, a defendant could never voluntarily make a statement, once refusing to talk before a lawyer is present. It is a question of whether she voluntarily confessed. We have no doubt she did; we conclude she made the statement knowing what she was doing, well aware of her rights.

It is argued the court improperly admitted the tape recording of the confession since only a transcript was available at the Demo hearing. The judge was right, the tape was the best evidence of the confession. Rule 1002, Uniform Rules of Evidence. See, also, Baysinger v. State, 261 Ark. 605, 550 S.W.2d 445 (1977).

A knife, J. Y. Cooper’s billfold and a letter were found in Ruth Sumlin’s purse, which was seized by the Fordyce policeman when she was arrested. Neither the policeman arresting Ruth nor the Chief of Fordyce Police Force inventoried the purse. Both simply looked in the purse for weapons.

The letter, sealed and stamped, addressed to her mother, was opened by Sheriff Joe Pennington about 7:00 or 8:00 a.m. the morning after the escape. He inventoried the purse.

The knife was the one identified as having human blood on it. The billfold was J. Y. Cooper’s, presumably containing $35.00 at one time. The letter was very damaging to Ruth’s case. It read in part:

Warren and me are on the run. Just like Bonnie and Clyde ... I broke him out of jail . . . If they say a man was killed, I killed him, not Warren. Just want you to know that Warren isn’t making me do anything. I’m much worse than he is . . .

The appellant argues the search of the purse was not authorized as incidental to her arrest nor as a routine police inventory.

A search of an individual’s personal effects is incidental to an arrest if it is conducted shortly thereafter at a jail. U.S. Edwards, 415 U.S. 800 (1974). See also, South Dakota v. Opperman, 428 U.S. 364 (1976); Rules of Grim. Proc., Rule 12.2; and Johnson v. State, 252 Ark. 1113, 482 S.W.2d 600 (1972). The knife and billfold were properly seized according to these authorities.

The envelope is slightly different. Its contents and potential use as evidence, unlike the knife and billfold, were not readily visible, and were unknown when it was seized.

The sheriff said he opened it because he wanted to learn the whereabouts of the other escapees. It was still early in the morning after the escape. It was known that two men were shot. Several men had escaped from the Columbia County Jail, the exact numbers and whereabouts of the escapees were unknown.

The question is, was the search reasonable as required by the Fourth Amendment of the U.S. Constitution? We believe it was not only reasonable and proper but that the sheriff was fully justified in opening the letter. He might have been derelict in his duty if he had not.

Either as an inventory, hours after the arrest, or as a search incident to the arrest, these items from her purse were properly seized and properly admitted as evidence.

Ruth Sumlin wrote another incriminating letter while she was in jail. It was addressed to her mother, she delivered it unsealed to a jail attendant. She had been told it would be read. This letter was properly seized. Jail officials may examine certain communications of a prisoner as a matter of security. Green v. Maine, 113 F.Supp. 253 (D.Me. 1953). For the same reason, a note she wrote on a paperback book and tried to slip to Warren Sumlin was also properly seized. Ruth Sumlin had already participated in one jailbreak, and the officials were fully justified in seizing these items. See also Carpenter v. State, 536 F.2d 759 (8th Cir. 1976).

After the jury had been instructed by the trial judge and had begun their deliberations, they returned and the foreman asked the judge if the State had to prove both robbery and escape in the first degree to find Sumlin guilty of capital felony murder. The judge told the jury either one would be enough and read again the appropriate instructions. Then the foreman said:

FOREMAN: Your Honor, if the defendant was an unwilling accomplice to the actual shooting, would that change it in any way?
THE COURT: I’m not sure how whoever is asking the question is defining the word ‘unwilling.’ And again, I think that if you will read the second part of the instruction on capital murder, the one that’s entitled ‘Second,’ I believe it would answer your question.
I don’t want to prejudice anybody, and that’s why I’m not sure what you mean by unwilling.
I may have one idea under the law of what unwilling might be, but you may be looking at it in a different sense.
And in the course of and in the furtherance of that crime, either robbery or burglary, or the flight therefrom, that Ruth Della Sumlin, or a person acting with her in that case would be an accomplice. It does not say whether that accomplice is willing or unwilling.
The law makes no distinction.
DEFENSE ATTORNEY: Your Honor, I object to that interpretation of the law very strenuously, and you will note my exceptions.
THE COURT: The objection is so noted.
‘That he caused the death of J. Y. Cooper under circumstances manifesting an extreme indifference to the value of human life.’
There’s further an instruction that tells you what an accomplice is. Then I think that should answer your questions. If it doesn’t, try again, and come back and I’ll try to go further with it.

Sumlin argues the trial judge by his comments erroneously interpreted the law. We find the judge’s remarks did not amount to prejudicial error.

A trial judge, once instructing a jury, should refain from elaborating on them, for such remarks, if in error, can lead to the necessity for a new trial. See Rules of Grim. Proc., Rule 33.4. Cf. Western Coal & Mining Company v. Kranc, 193 Ark. 426, 100 S.W.2d 676 (1937). (Judge’s remarks during trial must be impartial).

However, the judge’s remarks were not improper. Whether one is “willing” or “unwilling” is not at issue in a criminal trial. Instructions, based on the Arkansas Criminal Code, use words designed to, so far as possible, define culpable conduct. For example, the Code uses the words “purposely”, “knowingly”, and “recklessly.” All of these words were defined by the judge in his instructions. Knowingly means:

KNOWINGLY — A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that this conduct will cause such a result.

The judge referred the jury to his instruction on accomplice liability. It reads:

You are instructed that a person may commit an offense either by his own conduct or that of another person.
A person is criminally liable for the conduct of another person when he is an accomplice of another person in the commission of an offense.
A person is an accomplice of another person in the commission of an offense if with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it.

“Unwilling” is defined as withholding consent, loath, reluctant, adverse. Webster’s New International Dictionary, 34d Edition, Unabridged. One can reluctantly participate in a crime and still be guilty according to our law. The key to criminal conduct in such a case as this is knowledge, as it was defined, and accomplice, as it was defined. The judge correctly referred the jury back to his original instructions; it is not a defense that one “unwillingly” participated in a crime.

Duress is a defense, and perhaps this is what the appellant had in mind. However, the trial judge was not requested to instruct the jury on duress. Having failed to ask for such instruction precludes the argument that such an issue should have been addressed. Baughman v. State, 265 Ark. 869, 582 S.W.2d 4 (1979).

Several black and white photographs were admitted which showed the nearly nude body of Cooper. It is argued the photographs were gruesome and inflammatory, showing the apparent mutilation of Cooper’s sexual organ. Indeed, the crime charges was gruesome but the photographs merely were evidence of the crime committed. They were relevant to who committed the crime, how it was committed and where it was committed. The trial judge excluded several photographs, avoiding any duplication. Our rule on the admission of photographs of this nature has been evenly and uniformly applied:

. . . However inflammatory they may be, they are admissible in the discretion of the trial judge, if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony or to corroborate testimony . . Perry v. State, 255 Ark. 378, 381, 500 S.W.2d 387, 390 (1973).

We find no error in admission of the photographs.

The trial judge granted the appellant a continuance in March, 1978. A request for another continuance was filed on the date of the trial reciting two reasons. First, that the trial judge had not ruled on the motions to suppress certain evidence, which were the subject of a Denno hearing for two days, March 1st and March 2d. Second, that a newspaper article the day before the trial indicated certain accomplices of Sumlin had pled guilty.

The Denno hearing was long, detailed and permitted the defense to explore in detail the circumstances surrounding the seizure of critical evidence. It knew all that was possible regarding the State’s case. We can see no prejudice in the fact the judge did not formally rule until the trial commenced.

There was no proffer of any evidence of prejudice resulting from the newspaper article, it was merely attached to the motion.

A trial judge has a duty to promptly try cases. One continuance had been granted to permit counsel to adequately prepare for trial. In the absence of any evidence of prejudice, or abuse of discretion, a trial judge’s decision on a continuance request will remain undisturbed. Russell & Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). We find that to be the case here.

The appellant argues the trial judge erroneously refused four offered instructions. One was that the State must prove beyond a reasonable doubt that the defendant emasculated Cooper. The court properly refused this instruction. That fact was not an element of robbery or murder. Only elements of a crime must be proved beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197 (1977).

The other three instructions were covered by instructions given by the court. The trial judge is not required to say the same thing in different ways. Butler v. State, 261 Ark. 369, 540 S.W.2d 651 (1977).

Once again Arkansas statutes which permit the imposition of the death penalty are challenged. We have answered most of the questions raised in prior cases. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). In fact, a defendant sentenced to life imprisonment without parole lacks standing to challenge the death penalty. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). We have held before that death penalty cases, like Furman v. Georgia, 408 U.S. 238 (1976), cannot be used to limit a jury’s discretion in imposing a life sentence.

The new argument is that since Sumlin was charged with murder in the course of furtherance of two felonies, robbery and first degree escape, the jury could find her guilty of capital murder in the course of either or only one felony. That is, the jury had too much discretion.

The trial judge clearly instructed the jury that it could find her guilty of capital felony murder if she killed Cooper, either to rob him or in furtherance of the escape. There is no unreasonable discretion in such circumstances, the jury must find her guilty of murder committed in the course of or in furtherance of a defined felony.

The Arkansas law defines what felonies subject one to a charge of capital felony murder — murder in the course of furtherance of rape, kidnapping, arson, vehicular piracy, robbery, burglary or escape in the first degree. Ark. Stat. Ann. § 41-1501.

The appellant’s argument is essentially that the State must choose one of these felonies to be fair to a defendant. Such a position would, indeed, be unfair to the State, permitting a defendant such as Sumlin, who participated in a wild escapade, to go before a jury accountable for only a part of a related course of misconduct.

Affirmed.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    EMPLOYMENT SECURITY DIVISION OF ARKANSAS v. Chris HUBBARD
    79-209
    587 S.W. 2d 835
    Opinion delivered October 22, 1979
    (In Banc)

      Thelma M. Lorenzo, for appellant.
    No brief for appellee.
   George Rose Smith, Justice.

After the appellee had received unemployment benefits measured by the wages he was actually paid during a base year that ended March 31, 1977, he applied for a redetermination of the amount of benefits. His proof showed that in November, 1977, after the expiration of the base year, his employer paid him $800.55 in back pay for work performed during the last quarter of the base year, his wages having originally been miscalculated under the Davis-Bacon Act. The Appeal Tribunal and the Board of Review refused to redetermine the benefits, holding that the computation must be based upon wages actually paid during the base year rather than upon wages merely payable. The circuit court took the opposite position and reversed the administrative decision. We agree with the Board of Review.

The legislative history of the Employment Security Act leaves no doubt about the correct rule to be followed. The original 1941 statute based the determination of benefits upon wages “earned” by the employee and upon wages “payable” to him during the base period. Act 391 of 1941, § 2(c) and (n). But a 1943 amendment changed both references to wages “paid” to the employee. Act 138 of 1943, §§ 23(c) and 24(n). The word “paid” has been retained ever since in the definition of “wages.” Ark. Stat. Ann. § 81-1103(n) (Repl. 1976).

In Connecticut and Maryland, where the statutes were amended in substantially the same way, the courts hold that the issue depends upon the wages actually paid. Giammattei v. Egan, 135 Conn. 666, 68 A. 2d 129 (1949); Maryland Dept. of Employment Security v. Werner, 231 Md. 474, 190 A. 2d 786 (1963). In the Maryland case the court explained the reason for the amendments to the statute:

As a matter of administrative feasibility, if the Department were to credit wages when earned, it would be necessary in every instance where the claimant qualified for less than the maximum amount of benefits to contact his employer to determine from his payroll records when each dollar of wages was actually earned. Needless to say, this would not only delay the payment of benefits, but it would also impose a great, if not impossible burden on the Department and on every employer.
This was the very reason that impelled the amendments of 1941.

The legislative history of the Arkansas act leads to the same conclusion.

Reversed.


author: John A. Fogleman, Justice.

text:
    BANK OF CAVE CITY v. Bobby HILL and WHITE RIVER MATERIALS, INC.
    79-189
    587 S.W. 2d 833
    Opinion delivered October 22, 1979
    (Division I)

      Tom Allen of Allen & McSpadden, for appellant.

      John C. Gregg of Highsmith, Gregg, Hart & Farris, for appellees.
   John A. Fogleman, Justice.

Appellant claims that its construction money mortgage has priority over the materialmen’s liens of appellees Bobby Hill and White River Materials, Inc., and that the decree of the trial court to the contrary should be reversed. We agree with the chancery court and affirm.

The case was tried upon the following stipulation of facts:

I.
Prince Construction and Metal Supply, Inc. purchased the property being the subject of this dispute on the 13th day of April, 1977, and on the same day verbally agreed with Bobby Hill to purchase a metal building to be placed on said real property.
II.
That John E. Bryant & Sons Lumber Co., which is not a party to this proceeding, delivered material to the construction site on the 18th day of April, 1977.
III.
That the Bank of Cave City agreed to loan the defendant, Prince Construction and Metal Supply Inc. the sum of $12,000 to be used in the construction of a metal building on the aforementioned real property. On the same date, Prince Construction and Metal Supply, Inc. was advanced the sum of $8,500 by the Bank of Cave City, and in turn executed their promissory note and deed of trust securing the sum of $12,000 which was subsequently filed for record on the 25th day of April, 1977.
IV.
That White River Materials, Inc. delivered certain materials in the sum of $1,354.64 on the 28th day of April, 1977.
V.
On the 11th day of May, 1977, Bobby Hill delivered to the real property being the subject matter of this dispute, materials for erection and construction of a metal building.
VI.
On the 31st day of May, 1977, White River Materials, Inc. delivered materials valued at $144.20 to the construction site.
VII.
On the 6th day of June, 1977, the Bank of Cave City advanced the sum of $6,000 as an additional advance on the notes secured by the aforementioned deed of trust.
VIII.
On the 8th day of August, 1977, White River Materials, Inc. served Prince Construction and Metal Supply, Inc. with a notice of materialman’s lien.
IX.
On the 11th day of August, 1977, plaintiff, Bobby Hill commenced this action by filing a complaint against Prince Construction and Metal Supply, Inc. and the Bank of Cave City, Cave City, Arkansas, seeking to establish a materialman’s lien and to foreclose the same.
X.
On the 18th day of August, 1977, White River Materials, Inc. filed suit seeking to foreclose its materialman’s lien.
XI.
On the 20th day of September, 1977, the Bank of Cave City, paid the sum of $1,875.38 to Bryant Lumber Co. for materials delivered to the construction site on April 18,1977, to preclude the possibility of the filing of a lien by Bryant Lumber Co.

Appellant contends that a materialman who furnishes materials after the recording of a construction money mortgage is not entitled to priority over the lien of the mortgage. We have held to the contrary in Planters Lumber Co. v. Jack Collier East Co., 234 Ark. 1091, 356 S.W. 2d 631, where we said that the lien of such materialmen relates back to the commencement of the construction of the building. Appellant seeks to distinguish this case from that one by pointing out that the materialman who furnished material prior to the recording of the construction money mortgage, in that case, perfected his lien, while the John E. Bryant & Sons Lumber Company did not perfect its lien. Appellant says that, under the circumstances existing here, the liens of appellees cannot stand on the same footing as that of Bryant, because Bryant never perfected its lien.

Appellant’s argument is not sound. In the Planters case the mortgagee also paid the claim of the claimant which had furnished material prior to the filing of the mortgage. The decision in that case did not turn upon the fact that the first material supplier had perfected its lien. The subsequent suppliers did not rely on that fact at all. They contended that their liens related back to the “commencement of the building” and that the date of delivery of the material of the first supplier to the lot on which the building was constructed was the “commencement of such building.” We agreed, pointing out that when the materialman claiming a lien files his account with the circuit clerk, as provided by Ark. Stat. Ann. § 51-613 (Repl. 1971), his lien dates back to the “commencement of such building” and is superior to any lien on the property that may have been placed there “subsequent to the commencement of such building.” We said that, in order for the construction money mortgage to have priority, it must have been executed before the “commencement of such building.”

We consider our previous decision controlling here. The lender who proposes to lend construction money can determine whether its mortgage will have priority by an inspection of the premises. Mark’s Sheet Metal, Inc. v. Republic Mortgage Co., 242 Ark. 475, 414 S.W. 2d 106; Clark v. General Electric Co., 243 Ark. 399, 420 S.W. 2d 830. Under the authority of these cases, such a mortgagee is charged with notice of whatever an inspection of the premises would have disclosed. Appellant concedes that the Bryant company had delivered materials to the construction site prior to the filing of its mortgage.

Appellant laments that “if the lower court is upheld most lending institutions will not make any advances over and above the original amount committed to in the construction mortgage, and second mortgages for the purpose of completing construction will be almost non-existent.” It is interesting to note that the writer of the dissenting opinion in Planters Lumber Co. v. Jack Collier East Co., supra, said: “I fear the economic repercussions which will flow from the majority opinion. Following the rule set down by the Court today, no individual nor lending institution can safely loan money to further a building project after one nail has been driven which has been purchased on credit. A lender willing to make a construction loan and take a mortgage to secure it cannot gain security for his loan by searching the records to determine the extent of prior liens on a building project, ascertain the amount of work done and materials furnished, and then act on the basis of this information. If he advances money on a project upon which construction has already begun, his mortgage would be inferior to those who might subsequently furnish labor or material for the project ...” The fears of today’s appellant and yesteryear’s dissenters are the same, but the latter plainly recognized the impact of the majority opinion. In the ensuing 17 years the General Assembly has not seen fit to change the law in respect to priority of liens, even though other substantial changes were made in 1979. The question is still one for legislative determination.

The judgment is affirmed.

We agree. Harris, G.J., George Rose Smith and Hickman. JJ.


author: Ernie E. Wright, Chief Judge.

text:
    J. D. RICHARDS III v. STATE of Arkansas
    CA CR 79-5
    585 S.W. 2d 375
    Opinion delivered August 8, 1979
    and released for publication August 29, 1979

      Paul D. Fray, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

This cause was appealed to the Arkansas Supreme Court, and by that Court assigned to the Court of Appeals pursuant to Rule 29(3) of the Arkansas Supreme Court.

J. D. Richards III was convicted by the trial court, with jury waived, of the crime of terroristic threatening under Ark. Stat. Ann. § 41-1608 and his punishment was fixed at five years in the State Penitentiary. All of the sentence except five months was suspended. He was credited with the five months spent in the county jail awaiting trial and placed on probation.

His points for reversal are without merit.

I. It is contended that it was reversible error for the court to fail to require either side to make opening statements. Ark. Stat. Ann. § 43-2110 (Repl. 1977) provides that the prosecuting attorney may make a brief opening statement of the evidence on which the State relies, and § 43-2111 (Repl. 1977) makes a like provision as to the defendant. No request for opening statements was made by either the prosecution or appellant, and the case proceeded to trial without any opening statements. The applicable statutes in using the word “may” indicate that opening statements are permissible and not mandatory. Gregory v. Colvin, 235 Ark. 1007, 363 S.W. 2d 535. The trial being before the court without a jury and there being no request for an opening statement, it was within the court’s discretion to proceed with the trial without opening statements. Failure of the court to require opening statements did not violate appellant’s Federal Constitutional right to a fair trial.

II. Appellant questions whether the statute here involved is violated absent the threat being communicated by the accused directly to the person threatened. Ark. Stat. Ann. § 41-1608 (1) reads:

“A person commits the offense of terroristic threatening if with the purpose [of] terrorizing another person he threatens to cause death or serious physical injury or substantial property damage to another person.”

There is no language in the statute indicating the threat must be communicated by the accused directly to the person threatened to constitute a violation.

III. Appellant finally questions the conviction because the evidence presented by the State, even if true, fails to show a threat to kill and was a conditional threat.

The evidence on the part of the State was that the person threatened, Mr. Roberts, was an employee of the Missouri Pacific Railroad at Conway; and that while he was starting his day of work on the railroad premises on August 19, 1977 the appellant, who had previously worked for the Missouri Pacific, came upon the railroad premises and insisted he was going to work the job Mr. Roberts was preparing to work on that day. The State’s evidence further indicates that the appellant asked Mr. Roberts to fight; that he had a rifle with him in the car in which he was riding; and that after Mr. Roberts left the presence of appellant, the appellant took a rifle from the car, cocked it, inserted a shell into the chamber, and told a railroad employee, “You’d better get that s. b. out of here or I’m going to shoot him”, referring to Mr. Roberts. There was further evidence that the threat was promptly communicated to Mr. Roberts by a railroad employee, that Mr. Roberts was frightened, concerned for the safety of his family, and that he left his job for the day.

While the evidence was conflicting, the record discloses substantial evidence to support the finding of guilty by the trial court, and the rule is well settled that on appeal the court does not attempt to weigh the evidence. That is the function of the trial judge, sitting as a jury in this instance, to evaluate the testimony of the witnesses. Simmons v. State, 255 Ark. 82, 498 SW 2d 870 (1973).

The threat to shoot another is a threat to cause such serious physical injury to another person as to constitute terroristic threatening within the express scope of §41-1608. The fact that the threat is conditioned in such a way as is calculated to coerce another person to abstain from a course of action he has a legal right to pursue is not a valid defense.

We find no prejudicial error.

Affirmed.


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

text:
    Calvin WILLIAMS v. COCA-COLA BOTTLING COMPANY and ROYAL GLOBE INSURANCE COMPANY
    CA 79-5
    585 S.W. 2d 372
    Opinion delivered August 8, 1979
    and released for publication August 29, 1979

      Phillip H. McMath, P.A., for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, for appellees.
   M. Steele Hays, Judge.

This cause was appealed to the Arkansas Supreme Court and by that Court assigned to the Court of Appeals pursuant to Rule 29(3) of the Arkansas Supreme Court.

This is a Workers’ Compensation case.

The appellant, Calvin Williams, was an employee of the respondent, Coca-Cola Bottling Company. On January 6 or 7, 1976, appellant alleged that he suffered an injury to his lower back while unloading stock from one of respondent’s trucks. Appellant filed a claim under the Arkansas Workers’ Compensation Act for total disability. Judgment was rendered in his favor by the Administrative Law Judge for temporary and total disability, but was reversed by the Full Commission. The Commission found that appellant had had a long history of back pain, and had failed to show substantial evidence that his work had precipitated the injury of which he now complains. Moreover, the opinion of the Commission stated that appellant had failed to indicate for approximately five months (from January 7, 1976 until June 21, 1976) that his condition was work related. The Circuit Court affirmed the Commission’s decision.

The appellant now brings this appeal from the judgment of the Circuit Court. The appellant contends that (1) there was no substantial evidence to support the opinion of the Commission; and (2) that testimony of the claimant’s former attorney, Mr. John Forster, in the form of an affidavit, should have been admitted into evidence by the Commission as being relevant to corroborate the claimant’s credibility.

We find it unnecessary to address the first point, since the resolution of the second point is determinative.

In reversing the Administrative Law Judge’s opinion, the opinion of the Full Commission noted that:

“The first record of claimant seeking medical attention following his alleged injury of January 6 or 7, 1976, is his visit to the University of Arkansas Medical Center surgery clinic on January 7, 1976, with complaints of back pain which claimant attributed to an injury which occurred ten years previously. No mention was then made of receiving any exacerbation of this condition on that or the preceding day even though the pain was described by claimant as “intense.” His next visit at the outpatient facility of the same medical agency was for low back pain again related to an injury received eight to ten years ago while he was lifting a pail of water. The medical records of succeeding visits also fail to reflect that claimant received a back trauma on January 6 or 7, 1976, and it is not until June 10, 1976, examination that the claimant first mentioned his current condition as being the result of an on the job injury in early January 1976. While the Administrative Law Judge in his opinion commented that the omission threatened claimant’s credibility, we take the position that it, along with other evidence, must defeat the within claim.

The Commission further commented:

“While there is the testimonial account of Willie Champion to suggest that the claimant was in pain on either January 6 or 7, 1976, its corroborative value is overcome by claimant’s failure to indicate for approximately five months following the reputed injury that he was suffering from a work related injury. It is, in our opinion, exceedingly unlikely that one who had sustained an incapacitating injury would neglect to mention its occurrence for several months thereafter.”

In support of the Full. Commission’s refusal to receive the affidavit, appellee cites Rule 14 of the Rules of the Workers’ Compensation Commission, which reads, in part:

“Introduction of evidence. All oral evidence or documentary evidence shall be presented to the designated representative of the Commission at the initial hearing on a controverted claim, which evidence shall be stenographically reported. Each party shall present all evidence at the initial hearing. Further hearings for the purpose of introducing additional evidence will be granted only at the discretion of the hearing officer of Commission. ”

The clear intent of Rule 14 is that all parties shall and will present all evidence at the initial hearing to enable the Commission to render an opinion upon a settled state of facts. There can be no real argument that Rule 14 is a necessary and appropriate Rule of procedure; its adoption and applicability are within the purview of the Commission. We agree with appellee that adherence to the rule is essential to an orderly disposal of cases. There are instances, however, where bending the rule ought to occur to insure the fair and judicious consideration of claims, rather than adherence to the rule for the sake of the rule itself. We are genuinely reluctant to make an exception to the rule when the Full Commission itself has seen fit not to do so and we would not do so except where a patent misstatement of fact (albeit collateral to the issue itself) is preserved in the opinion.

That provision of the Commission’s opinion which states that for five months the claimant failed to indicate that he was suffering from a work related injury simply will not repose with the fact that his claim was filed within approximately two months of the alleged injury and in the face of that material inconsistency of dates we believe the discretion of the Commission should have been toward the side of inclusion of additional (and relevant) evidence rather than toward the side of exclusion.

The case is reversed and remanded with instructions to receive the proffered affidavit for such weight as the Full Commission deems it warrants.

Fénix, J., dissents.

Marian F. Penix, Judge,

dissenting. The basis for the majority holding appears to be that the Workers’ Compensation Commission, in their opinion reversing the administrative judge, said “While there is the testimonial account of Willie Champion to suggest that the claimant was in pain on either January 6 or 7, 1976, its corroborative value is overcome by claimant’s failure to indicate for approximately five months following the reputed injury that he was suffering from a work related injury.” The Commission was saying that it was “approximately five months following the reputed injury” before there was documented medical evidence that he had sustained a work related injury. Because the claimant filed a formal claim on March 12, 1976, the majority appears to be holding that this is reversible error. I disagree. The Commission weighed all of the evidence before it. There was substantial evidence to support the Commission’s finding that the claimant had not suffered a compensable, work related injury. When the claimant kept a doctor’s appointment the day following the alleged injury, he did not mention the alleged injury. The claimant never reported his injury to his employer, as required by law. There is no objective medical evidence to substantiate the claimant’s complaints.

Another basis for the majority holding appears to be that the Commission abused its discretion in not allowing John Forster’s affidavit to be admitted into evidence under the Commission’s own Rule 14.

In Mohawk Rubber Co. v. Buford, 259 Ark. 614, 535 S.W. 2d 819 (1976) the court held that where the decision is based upon the application of the Commission’s own rules, the court will view it in deference to the Commission’s treatment of the rules. The Commission is empowered to make such rules and regulations for the administration of the Workers’ Compensation Law as may be found necessary [Ark. Stat. Ann. § 81-1343(9)]. Great weight should be accorded the findings of the Commission with reference to compliance with its rules and regulations, since it, being authorized to make them, is in a superior position to determine whether they have been complied with; and testimony must be weighed in its strongest possible light in favor of the Commission’s findings. I believe it is significant that although the Commission reversed the administrative judge in a 2-1 decision, the Commission ruled unanimously to deny the appellant’s motion to remand the case for additional testimony.

If we force the Workers’ Compensation Commission to relax their own rules, the rules become meaningless.

It is my belief that the decisions of the Arkansas Workers’ Compensation Commission and the Pulaski Circuit Court should be affirmed, therefore, I respectfully dissent.


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

text:
    AMERICAN CAN COMPANY, Employer v. Charles McCONNELL, Employee
    CA 79-3
    587 S.W. 2d 583
    Opinion delivered August 8, 1979
    and released for publication October 4, 1979

      Bethell, Callaway & Robertson, by: Donald P. Callaway, for appellant.

      Youngdahl, Larrison & Agee, for appellee.
   James H. Pilkinton, Judge.

This cause was appealed to the Arkansas Supreme Court, and by that court assigned to the Arkansas Court of Appeals pursuant to Rule 29(3) of the Arkansas Supreme Court.

This is a workers’ compensation case.

On August 2, 1972, appellee, Charles McConnell, was working on an air pressure line at his place of employment with appellant, American Can Company. The line blew off the machine, and the air pressure blew some foreign material into his right eye. The left eye was not involved. The following day, appellee was seen by Dr. Kenneth K. Wallace, an opthalmologist, who was unable to find any visible signs of injury. Subsequently, the appellee lost the vision in both eyes as the result of a medical condition known as macular edema. The macular edema developed in the left eye about a year after it appeared in the right eye, and is worse in the left eye. Appellee remained under the care of Dr. Wallace, but also consulted numerous specialists throughout the country.

Appellee asserted a claim for workers’ compensation benefits. Following a hearing on June 4, 1977, an Administrative Law Judge denied the claim, and the claimant appealed to the Full Commission. In a two-to-one decision, the Full Commission found the claim compensable, and directed appellant to pay total permanent disability benefits and medical expenses. This appeal is taken from an order of the Sebastian County Circuit Court affirming the award.

Points relied upon by appellant are:

1. The Commission erred in finding any causal relationship between the job-related injury to the employee’s right eye and his subsequent blindness from macular edema, and in finding that medical testimony is not required to establish the relationship.
2. The Commission erred in directing payment of all medical expenses related to the injury without determining whether such expenses were reasonably necessary for treatment.

It was stipulated that the date of the occurrence was August 2, 1972, at which time claimant’s average weekly wage was $138.00. Appellee contended that loss of vision in both eyes was the result of an injury on the stipulated date to the right eye, that he was entitled to permanent total disability benefits and medical expenses for treatment to his eyes. The respondent-appellant controverted these claims.

Following a hearing the Commission filed an opinion finding, among other things, that the appellee sustained a compensable injury to his right eye which resulted in the total loss of sight in both eyes, entitling appellee to compensation for permanent and total disability.

Under the Workers’ Compensation Law as decided by the Arkansas Supreme Court on numerous occasions, the decision of the Commission must stand if supported by any substantial evidence. All disputed evidence must be viewed in the light most favorable to appellee. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480 (1976); Jacob Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W. 2d 200 (1972); Southwestern Bell Telephone Co. v. Brown, 256 Ark. 54, 505 S.W. 2d 207 (1974).

The question of having conclusive medical evidence has been considered by cases in Arkansas and from other jurisdictions and by Professor Larson in his treatise on workers’ compensation. In Volume III, Section 79.51, Professor Larson states as follows:

“To appriase the true degree of indispensability which should be accorded medical testimony, it is first necessary to dispel the misconception that valid awards can stand only if accompanied by a definite medical diagnosis. True, in many instances, it may be impossible to form a judgment on the relation of the employment to the injury, or relation of the injury to the disability, without analyzing in medical terms what the injury or disease is. But this is not invariably so. In appropriate circumstances, awards may be made when medical evidence on these matters is inconclusive, indecisive, fragmentary or even nonexistent.” (Emphasis supplied.)

Professor Larson cites cases from several jurisdictions in a footnote to the above-quoted material, one of which is the Arkansas Supreme Court case of Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W. 2d 118 (1974). In that case, an award to claimant for a back injury, described as a “bulging” in-tervertebral disc, was sustained despite absence of medical testimony establishing a causal relationship between the work and the injury.

Among other cases cited in support of the quoted material above, is the Georgia case of Hartford Accident & Indemnity Co. v. Waters, 87 Ga. App. 117, 73 S.E. 2d 70 (1953). In that case, the decedent who had had high blood pressure, fainted while sweeping a spinning frame, and died a week later of cerebral hemorrhage. There was no medical testimony expressing an opinion that this hemorrhage was contributed to by the exertion, but one doctor said that an exertion that might raise blood pressure also might precipitate a blood vessel rupture. The court held that this, plus knowledge from human experience that exertion is dangerous in such cases, was enough to support the award.

In the body of the treatise again at Section 79.51, Professor Larson quotes at length from a Rhode Island case in which the undisputed testimony of claimant showed that she had been struck a sharp blow on the nipple of the left breast by a bobbin, that about two weeks later a lump had formed at that exact spot and pus was beginning to come off, and that shortly after, on the advice of doctors, the breast was removed. The award was attacked on the grounds that there was no direct medical testimony fixing the pathological nature of the condition that necessitated the operation and no medical testimony connected the blow with the growth. Citing from the decision of the Supreme Court of Rhode Island, the court commented on the subject of the lack of medical testimony on causation as follows:

“We can see that in the great majority of cases, such testimony ordinarily is necessary because of the seeming absence of connection between a particular accident and a claim resulting in injury. But in other cases involving special and peculiar circumstances, medical evidence, although highly desirable, is not always essential for an injured employee to make out a prima facie case, especially if the testimony is adequate, undisputed and unimpeached. Thus, where, as in the instant case, injury appears in a bodily member reasonably soon after an accident, and at the very place where the force was applied and with symptoms observable to the ordinary person, there arises, in the absence of believed testimony to the contrary, a natural inference that the injury, whatever may be the medical name, was a result of the employment. " (Emphasis supplied.)

Appellant testified at the hearing that he was 54 years old and first went to work for the respondent in July, 1950. He stated that on the day of his accident, August 2, 1972, he was working on an air pressure line because some “trash and stuff” apparently had clogged the valves. He testified that he filled the line with mineral oil to lubricate the valves and, while in the process of working on the troubles, the air line blew off the machine, struck him in the right eye, and the force of the air pressure blew foreign material to his eye. The plant nurse washed out the eye and applied medication.

Appellant testified that he first saw Dr. Wallace for his condition on the day following the date of injury. He complained to Dr. Wallace that his vision was blurred in his right eye. Appellant testified that he had not had any problems with blurred vision or anything at all with his eye prior to the accident happening. He stated that he did wear glasses but had never had any eye injuries of any kind and had never seen a doctor for eye problems prior to the date. He had been examined approximately eight years earlier by an eye specialist who had found nothing wrong with appellant’s eyes.

Appellant stated that he next saw a Dr. Faiser, at Holt-Krock Clinic several weeks after the accident because the condition in his right eye had not improved and, in fact, had grown continually worse. He testified that he went back to Dr. Wallace for treatment and next saw a Dr. Gass at the University of Miami in October, 1973. It was at this time that appellant testified that the problem also began taking his left eye. Appellant went on to testify that he had seen several specialists at different places in the country in an effort to obtain help for his eye condition. Reports from these various doctors were introduced as Claimant’s Exhibits. Most of the reports were placed in the record for informational purposes since the doctors did not express any opinion in regard to the causal relationship between appellant’s injury and his blindness. In fact, the medical evidence can be narrowed to the opinions of Dr. Wallace, Dr. Jerry Wurster, Dr. William H. Campbell, Dr. Norbert Becquet and Dr. Faier.

Dr. Wallace testified by deposition in that case that, in his opinion, there was no causal relation between the appellant’s eye condition and his subsequent blindness. Dr. Wallace did testify, however, at page 21 of his deposition that the cause of uveitis (the condition which results in the blindness) was not known. In his own words:

“Q. . . . What causes uveitis?
A. The cause of uveitis is not known.
Q. All right. So, the cause of macular edema is not known and the cause of uveitis is not known.
A. That’s right. Uveitis is known to be associated occasionally with certain disorders, but it’s not clear as to, you know, why they are associated together.” (Emphasis supplied.)

Dr. Wallace went on to testify that he first saw appellant bn August 3, 1972. He did not see any uveitis or macular edema. He did not see it when he examined claimant on the 9th of August, 1972, but, on August 11, 1972, he first detected the condition known as macular edema. He testified that it first appeared in the right eye, the eye in which claimant had had the injury.

Dr. Wallace went on to state that macular edema manifests itself by blurring your vision. He also stated as follows:

“Q. Does macular edema manifest itself by blurring of the vision?
A. Yes.
Q. And when he came in on August the 3rd, was he complaining of blurred vision?
A. Yes.
Q. In that eye?
A., Yes.
Q. Did he give you a history of having blurred vision in that eye prior to August 3, 1972?
A. No.”

From a review of the above-quoted testimony, it appears without question that the onset of the claimant’s condition which eventually spread to his left eye into eventual blindness did not appear until the day of the accident and, even according to Dr. Wallace’s testimony, the exact cause of the condition which produced the blindness is not known. The testimony of the claimant must also be considered as to when his eye trouble started.

Dr. Wallace wrote a standard form surgeon’s final report on November 16, 1972. This report appears as an exhibit to his deposition. In that report, indicating that he could make no determination either way concerning the cause of the macular edema, Dr. Wallace stated:

“Unable to determine (if) the cystoid macular edema is a result of on the job injury.”

However, in his deposition, Dr. Wallace seemed to take a totally negative view toward any possibility of causal relationship, as is indicated by the following testimony:

“Q. Do you have an opinion, based upon reasonable medical certainty, as to whether the uveitis, or the macular edema, were caused or contributed by an allergic toxic reaction from any substance which might have gotten into his eye in the course of the industrial accident which he described to you on the date you first saw him?
A. In my opinion, the macular edema and uveitis that he subsequently developed in both eyes is not related in any way to any toxic or allergic reaction from any chemicals that were introduced in the eye in the accident that he described to me.

And further:

Q. Do you have any opinion, based upon reasonable medical certainty, as to whether the macular edema was caused or contributed to by the industrial accident which he described to you as having occurred the day before you first saw him?
A. In my opinion, the accident did not cause or contribute to the macular edema.”

Dr. Jerry Wurster wrote a report dated September 16, 1975. In that report he relates the history given to him by the claimant and then goes on to state as follows on the last page of his report:

“I would now like to address myself to the possibility of the patient’s injury causing his uveitis. He has told me that all of the consultants he has seen in the past did not feel that these two are related, and I, at first, did not feel so either. However, since we know so little about what causes peripheral uveitis and since I think his cystoid macular edema is secondary to that, one cannot rule out the possibility of the injury being related to the onset of his peripheral uveitis. I am not indicating that there is a direct cause and effect, but I am just implying the possibility that perhaps there is a reasonable chance that the two could be related.” (Emphasis supplied.)

Dr. William H. Campbell stated in his report which appears as a Claimant’s Exhibit, as follows:

“I feel that Dr. Wurster’s statement is made in good faith. There is no known connection of his type of injury with this type of medical problem of the eye. However, no one can completely rule out or rule in the coincidental occurrence and there is always a possibility that an injury to an eye can cause inflammation. ” (Emphasis supplied.)

Finally, the report from Dr. Norbert Becquet was submitted as part of the record subsequent to the hearing. Dr. Becquet examined the claimant and reviewed all of the medical reports which had been written — Dr. Becquet states in his report, dated September 14, 1977, as follows:

“In my opinion this onset of flare and cells within the globe is probably more due to an allergic toxic reaction from the solution than from trauma, for he certainly would not have been examined for glasses just after trauma to the eyes.
An allergist I spoke to about doing sensitivity tests with the compounded lubricating solution said he would rather not do so; it might trigger a reaction and cause further loss of the vision he has.
The other ocular complications which are many are certainly possible secondary to the intraocular flareups following the spilling over the compounded lubricating solutions onto the anterior global areas.”

Dr. Becquet seems to have discounted the possibility of trauma to the eye, but concludes:

“. . . One should certainly consider as a probable cause of the uveitis an allergic reaction to the compounded lubricating solutions to the air hose which pulled loose.” (Emphasis supplied.)

In this case the evidence as a whole would no doubt have supported a contrary finding; but, that is not the test on appeal. Meador Lumber Co. v. Wysong, 262 Ark. 425, 557 S.W. 2d 395 (1977). The question here is whether there is any substantial evidence to support the Commission’s findings. If so, its decision must be affirmed. Dillaha Fruit Co. v. LaTourrette, 262 Ark. 434, 557 S.W. 2d 397 (1977).

Under the substantial evidence rule aforesaid appellant shoulders a heavy burden in seeking, as here, reversal of the Commission’s decision upon an issue of fact. Plastic Research & Development Co. v. Goodplaster, 251 Ark. 1029, 476 S.W. 2d 242 (1972). On appeal from awards made by the Workmen’s Compensation Commission, doubtful cases are always resolved in favor of claimant. Cooper Industrial Products, Inc. v. Worth. 256 Ark. 394, 508 S.W. 2d 59 (1974).

The medical soundness and probative force of the various doctor’s testimony was for the Commission, and a reviewing court is not at liberty to determine such matters. Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977).

On review, this court looks to see if there is any substantial evidence to support the findings of the Commission; all inferences must be resolved against the employer, and the evidence is given the most liberal construction possible in favor of the worker. Foster v. Johnson, 264 Ark. 894, 576 S.W. 2d 187 (1979).

Applying these well known rules, we must sustain the finding of the Workmen’s Compensation Commission in this case.

As to appellant’s second point, we do not think it was unreasonable for appellee to seek out all of the medical advice and attention he could get. This man was losing his eyesight. He appears to have been motivated by a desire to find a doctor who could help save his sight. There is no testimony that all the physicians consulted attempted an expensive course of treatment of his condition for which the employer must pay. There was no evidence of double, conflicting, unnecessary or extended treatment. We find no error in the Commission directing appellant to pay “all medical expenses related to claimant’s compensable injury.”

The case is therefore affirmed in all respects.

Hays, J., dissents.

M. Steele Hays, Judge,

dissenting. I cannot agree that the commission should be affirmed. The opinion of the Commission that appellee’s macular edema and uveitis were attributable to an injury incurred within the scope of his employment cannot, I believe, he sustained by the evidence, even when considered in a light most favorable to the appellee. The medical evidence from numerous opthamologists was that the cause or causes of macular edema and uveitis has not yet been isolated, though some, perhaps most, believe it to be vascular in origin. Claimant relies on the medical opinion of Dr. Jerry V. Wurster, Dr. William H. Campbell, and Dr. Norbert J. Becquet. The pertinent portion of Dr. Wurster’s opinion is:

“However, since we know so very little of what causes peripheral uveitis and since I think his cystoid macular edema is secondary to that, one cannot rule out the possibility of injury being related to the onset of his peripheral uveitis. I am not indicating that there is a direct cause and effect, but I am just implying the possibility that perhaps there is a reasonable chance that the two could be related.”

(It should also be observed that Dr. Wurster was mistaken in the sequence of the onset of disease as he erroneously assumed that the uveitis preceded the cystoid macular edema, which was clearly not the case.)

Similarly, Dr. Campbell stated:

“There is no known connection of his type of injury with this type of medical problem of the eye. However, no one can completely rule out or rule in the coincidental occurrence and there is always a possibility that an injury to an eye can cause inflammation.”

Obviously, neither of these guarded and cautious opinions (both of which are couched in terms of “possibility” rather than “probability”) meet the requisites of substantial medical evidence. Dr. Becquet’s testimony came closer to meeting the test when he stated:

“One should certainly consider a probable cause of the onset of uveitis and allergic reaction to the compounded lubricating solutions in the air hose which pulled loose.”

The problem with Dr. Becquet’s comment is that he makes a mistake of fact that is fatal to his opinion when he assumes that both eyes were involved in the initial episode on August 3, 1972. The report of Dr. Becquet at pages 39 and 40 of the abstract makes it clearly evident that Dr. Becquet’s opinion is founded on the lubricating solution being introduced into both eyes when in fact it is undisputed that only the right eye of the appellee was involved.

Against this inconclusive medical testimony is the testimony of the claimant’s own physician, Dr. Kenneth Wallace, also a opthamologist. Dr. Wallace examined the claimant on the day following his initial injury and both treated and examined the claimant over a period of several years. By actual count, Dr. Wallace saw the claimant not less than 97 times from the initial episode and as recently as November 8, 1977. Obviously, the claimant had a high degree of confidence in Dr. Wallace. Dr. Wallace testified un-equivocably that in his opinion there was no relationship between the August 3, 1972 injury and the pathology of the claimant’s vision loss. Specifically, Dr. Wallace stated:

“The significance of that to me is that as time went on, it began to become clear that we were dealing with a bilateral condition affecting both eyes, which could not and would not be related to any trauma in one eye only.” [“In my opinion, the macular edema and uveitis that he subsequently developed in both eyes is not related in any way to any toxic or allergic reaction from any chemicals that were introduced to the eye in the accident that he described to me.”]

Appellee relies on Harris Cattle Company v. Parker, 256 Ark. 166, 506 SW 2 118 and Hartford Accident and Indemnity Co. v. Waters, 73 SE 2d 70 as well as Larson 79.51. Professor Larson cites the case of Valente v. Bourne Mills, 77 R.I. 274, 75 Atl. 2 191. These cases hold that medical evidence “in appropriate cases” is not always required. A portion of Professor Larson’s commentary reads:

“We can see that in the great majority of cases, such testimony ordinarily is necessary because of the seeming absence of connection between a particular accident and a claim resulting in injury. But in other cases involving special medical evidence, although highly desirable, is not always essential for an injured employee to make out a prima facie case, especially if the testimony is adequate, undisputed and un-impeached. ”

I have no difficulty with this principle; I cannot, however, . agree that it has any application to the case at bar. In these cases there was no medical evidence on either side concerning causation, whereas in the present case Dr. Wallace and others stated emphatically that the injury and the result could not be related. Too, in the cases cited, the injury and its progress had a rather clear anatomical correlation, concerning which common experience gives some guidance, whereas in the case at bar the disease is highly complex and of unknown origin.

I don’t believe Professor Larson and the rationale of these cases should be extended to apply to facts presented in this case. I would reverse and dismiss.


author: James H. Pilkinton, Judge.

text:
    James JACKSON, Jr. v. STATE of Arkansas
    CA CR 79-2
    585 S.W. 2d 367
    Opinion delivered August 8, 1979
    and released for publication August 29, 1979

      John W. Achor, Public Defender, by: William H. Patterson, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   James H. Pilkinton, Judge.

This case was appealed to the Arkansas Supreme Court, and by that court assigned to the Arkansas Court of Appeals pursuant to Rule 29(3) of the Arkansas Supreme Court.

On November 22, 1976, an Information was filed by the Prosecuting Attorney of the Sixth Judicial District in which the appellant was charged with theft of property. A jury was waived and trial was on September 20,1978. The court found the appellant guilty as charged. Upon the state’s presentation of the prior felony convictions, appellant was sentenced to five years imprisonment according to Ark. Stat. Ann. Sec. 41-1001 (Repl. 1977).

The appellant contends that the trial court erred in sentencing him under Ark. Stat. Ann. Sec. 41-1001 (Repl. 1977). He bases his argument on the fact that the offense occurred August 6, 1976, at which time Ark. Stat. Ann. Sec. 41-1001 provided a different penalty for a Class “C” felony; and, that the statute as amended was an ex post facto law as applied to him. The prior statute provided a penalty of not less than two years nor more than ten years for a Class “C” felony. Appellant correctly states that Ark. Stat. Ann. Sec. 41-1001 was amended in 1977 to increase the penalty to not less than three years nor more than fifteen years if the conviction is a Class “C” felony, thereby increasing the minimum sentence by one year and the maximum sentence by five years. In the present case appellant, after being found guilty, was sentenced to five years imprisonment. Thus, the sentence imposed by the trial court was within the permissible range of sentencing allowed by Sec. 41-1001 both at the time of the commission of the crime and at the time of the trial.

The record shows that appellant not only failed to object to the sentencing but concurred with the court on the sentence. The Arkansas Supreme Court has previously held that questions involving sentencing will not be considered for the first time on appeal. Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979). McCoy v. State, 259 Ark. 607, 535 S.W. 2d 439 (1976).

Viewing the totality of the circumstances including the lack of an objection at trial, defense counsel’s agreement with the trial court as to the applicable law, and the fact that the sentence imposed by the trial court was within the permissible range, we hold that reversal is not warranted on this point as claimed by appellant.

Appellant also contends that the trial court erred in allowing testimony concerning the recovery of a stolen tire from the vehicle in which he was riding. He contends that the recovery of the stolen tire was the product of an illegal search and seizure. Appellant’s argument is based on the contention that the search conducted in this case was a warrantless search not incidental to the arrest and therefore should have been excluded.

Rule 16.2 Arkansas Rules of Criminal Procedure provides:

“The motion to suppress shall be timely filed but not later than ten days before the date set for trial of the case, except that the court for á good cause shown may entertain a motion to suppress at a later time.”

There is no indication whatsoever that appellant made any motion to suppress evidence in this case prior to the objection made at the trial. It seems clear therefore that the appellant’s motion to suppress evidence in testimony produced at trial was not timely made. Also there is no indication that appellant made any showing of good cause for which the court could have entertained a motion to suppress which was not timely made.

The Arkansas Supreme Court addressed a similar issue in Parham v. State, 262 Ark. 241, 555 S.W. 2d 943. In Parham, supra, the appellant was convicted of possession of marijuana with intent to deliver. In affirming appellant’s conviction, the Supreme Court pointed out that three of his six points for reversal must fail as his motions to suppress were filed too late. The appellant in Parham filed his motion to suppress a day or two before the date for trial whereas in the present case no motion was made prior to the trial. We hold therefore that appellant’s motion to suppress testimony concerning any evidence relating to the search and seizure of the stolen tire was not timely filed. See also Burnett v. State, 262 Ark. 235, 564 S.W. 2d 211 (1978). The further contention that the search of the vehicle and seizure of the stolen tire were illegal is also without merit. Appellant does not challenge the determination of probable cause to stop the vehicle, nor does he challenge the validity of the arrest. He argues however that the search could not be construed as incident to a valid arrest. The search in this case was clearly within the guidelines established by the Arkansas Rules of Criminal Procedure. Rule 12.1 provides, inter alia:

An officer who is making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused for the following purposes only:
(d) to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of the crime, or other things criminally possessed or used in connection with the offense.

Similarly, Rule 12.4(a) provides:

If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize anything subject to seizure and discovered in the course of the search.

Attention is also called to Rule 14.1 which further addresses the issue of vehicular searches as follows:

(a) An officer who has reasonable cause to believe that a moving or readily moveable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:
(i) on a public way or waters or other areas open to the public; . . .

The testimony presented at trial indicated that there was ample reason for the officer to have reasonable cause to believe that contraband was being unlawfully transported in the vehicle in question, thereby rendering a warrantless search of the vehicle permissible under the circumstances existing.

Officer Whooten testified that while receiving radio communication that a theft of property was in progress at a certain location, he was west bound on the same street on which appellant was attempting to flee. The officer further testified that the appellant’s vehicle was the only vehicle on the street besides the police car; and that appellant’s car was sitting low in the rear. The Arkansas Supreme Court has previously held that whenever a police officer has reasonable cause to believe that contraband is being unlawfully transported in a vehicle, then the vehicle may be the object of a warrantless search. Perez v. State, 260 Ark. 438, 541 S.W. 2d 915 (1976). Gordon v. State, 259 Ark. 134, 529 S.W. 2d 330 (1976). As pointed out in Perez, supra, the determination of the soundness of the officer’s concluding that probable cause for the search existed is made in the light of the particular situation, with account taken of all the circumstances. The facts in each case are likely to be different. Considering all of the circumstances in this case, it appears that the officer had reasonable cause to believe that the vehicle was unlawfully transporting contraband and thus had probable cause to stop the vehicle.

The search was valid if it was not reasonably practical to obtain a search warrant. Perez, supra, at 444; Tygart v. State, 248 Ark. 125, 451 S.W. 2d 225 (1970), cert. denied, 400 U.S. 807, 91 S. Ct. 50, 27 L. Ed. 2d 36 (1970). There were factors present in this case which would indicate that it was not reasonably practical for Officer Whooten to obtain a search warrant. He had information that a crime was in progress; that the criminals had been observed rolling a large tire from the scene of the crime to a parking lot; and the hour was late at night. Upon observing that the vehicle appeared to contain a heavy load as it seemed to be “sitting low in the rear”, and was occupied by two suspects meeting the description of the information furnished him by the radio, the officer stopped the vehicle. For the officer to have gone in quest of a search warrant at that hour of the night under the circumstances would have been impractical. This coupled with the other significant facts then existing produced a situation whereby warrantless search incident to the arrest was not only reasonable but would have rendered the officer subject to criticism had he not searched the automobile.

Affirmed.


author: David Newbern, Judge.

text:
    CHANDLER TRAILER CONVOY, INC. and NORTHWESTERN NATIONAL INS. CO. v. Linda Sue HENSON
    CA 79-1
    585 S.W. 2d 370
    Opinion delivered August 8, 1979
    and released for publication August 29, 1979

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.

      Gordon & Gordon, P.A., for appellee.
   David Newbern, Judge.

This case was appealed to the Arkansas Supreme Court and by that Court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

This is a workers’ compensation case resulting from death of an employee due to a heart attack. The Workers’ Compensation Commission found that the employee was not acting in the scope of his employment at the time of the heart attack and immediately subsequent death which led to this claim.

Scope of employment was the only issue before the Commission. There was conflicting evidence whether the deceased, a contract-hauler for Chandler Trailer Convoy, Inc., was hauling a mobile home for the benefit of the Company or was engaged in a haul which was contrary to his agreement with the Company and solely for his own benefit. Neither side called as a witness Mr. Carlos Irrirzary who, at the time of the move in question and for a period thereafter, was employed in a management position with the Company. His job was described in the record as “claims man” in charge of “driver personnel.” Evidence of his foreknowledge or approval of the move or evidence of the lack of such foreknowledge or approval would have been highly persuasive with respect to the scope of employment issue. Numerous references were made in the testimony of witnesses before the Administrative Law Judge to the fact that Mr. Irrirzary knew of the move, at least after it had taken place. Neither side presented him, despite the fact that the record was left with nothing to show whether he knew or did not know of the move before it was to occur or during its occurrence. Some testimony indicated that Mr. Irrirzary’s statements to other witnesses at least implied the Company expected to be paid for the move. No explanation was given by either side for failure to call Mr. Irrirzary. Each side now contends it was the responsibility of the other to call him. Mr. Chandler, president of the Company, testified that Mr. Irrirzary had, the day before the hearing, retired from his employment with the Company and was living at Benton, Arkansas.

The Commission’s decision was vacated and set aside on appeal to the Circuit Court, and the case was remanded to the Commission for the purpose of taking the testimony of Carlos Irrirzary “and for the development of any further evidence to determine whether the decedent, John Henson, was working within the scope of his employment with the respondent-employer when he suffered a fatal heart attack.”

The Company contends the Court’s order was improper for various reasons. Appellee contends the Court’s order was not appealable, and even if it were found to be appealable, it was not improper.

We need not discuss the propriety of the order remanding the matter to the Commission for further evidence, as we find the order to be not appealable.

In Nolan Lumber Co. v. Manning, 241 Ark. 422, 407 S.W. 2d 937 (1966), the Arkansas Supreme Court held squarely that such orders are not appealable. That decision has not been overruled, and indeed it has been cited by the Arkansas Supreme Court with approval in Floyd v. Ark. State Board of Pharmacy, 248 Ark. 459, 451 S.W. 2d 874 (1970).

The Appellants would have us look to the language of the Nolan Case which went beyond the holding of non-appealability to discuss the propriety of remanding a case to the Commission for further evidence, and which indicated that if the trial court abused its discretion in remanding a case to an administrative agency, its decision might be reversed. We regard that language as dictum only, in view of the clear holding of the Nolan Case which is set out in the final two paragraphs of the opinion as follows:

The general rule in our state is that appeals lie only when and if there is a final judgment, decree or order. (Citations.)
Since the order entered by the trial court in this case is not appealable the appeal should be dismissed and it is so ordered. 241 Ark. at 424.

We, therefore, affirm the trial judge’s order remanding the case to the Workers’ Compensation Commission.

      Neither side on this appeal cited Bridges v. Arkansas Motor Coaches, Ltd., Inc., 256 Ark. 1054, 511 S.W. 2d 651 (1974), but we feel compelled nonetheless to distinguish that case in which the Arkansas Supreme Court treated an appeal from an order by a circuit court remanding a case to the Transportation Commission for the taking of further evidence as a request for certiorari and found the circuit court lacked jurisdiction to order the remand. There the Supreme Court found the trial court’s order was a flagrant act in disregard of the procedure for filing a complaint before the Transportation Commission. We find nothing comparable here, as there is no separate procedure by which the evidence sought could be introduced in a way that would benefit this claimant. Thus, even if the Circuit Court’s action were found to have been improper, in this case it could hardly be elevated to the level of “jurisdictional impropriety. ”


author: Ernie E. Wright-, Chief Judge.

text:
    Piercy A. WELLS and Lorene L. WELLS v. Richard B. GRIFFIN, d/b/a GRIFFIN SALES COMPANY, CONSOLIDATED BUILDERS, INC. and KHILCO INDUSTRIAL ELECTRIC, INC.
    CA 79-12
    586 S.W. 2d 239
    Opinion delivered August 15, 1979
    and released for publication September 5, 1979

      Warner & Smith, by: J. H. Evans, for appellants.

      Shaw & Ledbetter and Bethell, Callaway & Robertson, for appellees.
   Ernie E. Wright-, Chief Judge.

This appeal to the Arkansas Supreme Court has been assigned to the Court of Appeals for disposition pursuant to Rule 29(3) of the Arkansas Supreme Court.

The appellants, Mr. and Mrs. Wells, owners of certain real estate, entered into a contract with Consolidated Builders, Inc. (hereinafter called “Consolidated”) to build an addition to an existing building upon the real estate involved for a fixed sum. Consolidated subcontracted the ceiling and floor work for this new structure to Griffin Sales Company, one of the appellees, (hereinafter called “Griffin”) for the sum of $3,094.00 for labor and materials for the ceiling work and for the sum of $1,863.11 for the floor work.

Consolidated engaged the appellee, Khilco Industrial Electric, Inc. (hereinafter called “Khilco”) on a cost-plus basis to do the electrical work.

Upon completion of the work Consolidated failed to pay Griffin and Khilco and was declared to be a bankrupt. In this action Griffin and Khilco each obtained judgments against Consolidated and Wells ánd materialmen’s and laborer’s liens were decreed against Wells’ real estate, and foreclosure was ordered. The Griffin judgment was in the amount of $4,-957.11 and the Khilco judgment was in the amount of $14,-232.14.

Appellants seek reversal on three points.

I. It is contended the court erred in finding that Griffin perfected his lien by filing his action within 120 days from the date the last work was performed under the sub-contract with Consolidated.

As frequently occurs in cases of this nature, the evidence was conflicting as to when the last work was done. It was stipulated that if work was performed by Griffin under his subcontract after August 23, 1976, he was entitled to a lien on the real estate. The court found that Griffin timely instituted suit against the prime contractor and Wells, rendered judgment in the amount of $4,957.11 in favor of Griffin, decreed a lien on the property involved and decreed foreclosure.

The chancellor in effect found that Griffin furnished labor and/or material in making improvements to the subject property within 120 days prior to the commencement of the action. We are unable to say that the court’s finding was against the preponderance of the evidence. See Neal v. Neal, 258 Ark. 338, 524 S.W. 2d 460 (1975). The decree of the trial court as to Griffin must be affirmed.

II. It is contended as to Khilco, that the court erred in finding that Khilco performed work on the subject property within 120 days prior to the filing of his materialmen’s and laborer’s lien and that any work done by Khilco that was not pursuant to any contract with Wells or their contractor or agent could not be the subject of a lien against the Wells’ property.

The law is well settled that the owner of real estate does not subject his property to a lien by merely permitting the lessee to make improvements. Donald v. Heigel Lumber Company, 187 Ark. 1014, 63 S.W. 2d 646.

The evidence stands undisputed that Consolidated authorized electrical improvements to the old building, not upon the basis of any contract between Consolidated and Wells, but upon order of Wells’ tenant, a Mr. Keaton. There is no evidence that Keaton was an agent for Wells. We hold that no lien attaches to the Wells’ property for labor and materials provided by Khilco in electrical improvements to the existing Wells’ building outside the scope of the Wells’ contract.

Therefore the labor and materials provided by Khilco in improvements to the old building, stemming from the order of Keaton, and not pursuant to the Wells’ contract with Consolidated, must be excluded in making a determination of whether the Khilco lien was timely filed.

When evidence of work performed or materials furnished by Khilco stemming only from the order of Consolidated, by arrangement with Keaton, are excluded from consideration in determining whether the lien was timely filed, there is no substantial evidence in the record to support a finding that the Khilco lien was filed within 120 days from the time the last labor was performed or material furnished pursuant to the Wells’ contract with Consolidated. Therefore, the judgment against Wells, including the decree for a lien and foreclosure of same, must be reversed.

III. Appellants contend the trial court erred in including profits of Griffin and Khilco in the lien judgments.

As to the Griffin lien claim, the contract which is the basis of the lien was for a fixed sum that includes labor and materials. This being true, the lien properly embraces the full amount of the contract. See Shaw v. Rackensack Apt. Corp., 174 Ark. 492.

As to the Khilco lien judgment, our holding supra disposes of the action. However, we would point out that on a cost-plus contract, as in the case of Khilco’s contract, only the cost of labor and materials qualify for lien purposes as indicated by the Shaw case. The statute makes no provision for a lien for profits on this type contract.

The decree of the trial court as to the judgment and lien in favor of Griffin is affirmed. The judgment and lien foreclosure in favor of the Appellee Khilco against Wells and the Wells’ property is reversed and appellants shall recover from the appellee, Khilco, one-half of the costs of the following items on appeal; transcript, brief, filing fee. The appellee, Griffin, shall recover from appellants the cost of his brief.


author: Marian F. Penix, Judge.

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS v. Craig HARDAGE
    CA 79-15
    587 S.W. 2d 836
    Opinion delivered August 15, 1979
    and released for publication October 4, 1979

      Laser, Sharp, Haley, Young & Huckabay, for appellant.

      Henry Morgan, for appellee.
   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

The question before this court is whether Craig Har-dage, Appellee, had an insurable interest in certain real property. The jury awarded $12,000.00 plus penalties and attorney’s fees.

A policy of fire insurance was issued by Farm Bureau Mutual Insurance Company of Arkansas, appellant, to Craig Hardage, appellee, insuring a dwelling against loss by fire in the amount of $12,000.00. Craig Hardage sold the property to C. Jack Anderson and the deed was recorded on July 28, 1977. Although Anderson signed the offer and acceptance without noticing the clause giving Hardage the house, he nevertheless signed the contract and closed the transaction. Anderson testified that he never once considered the house to be included in the.price he paid for the property. His agreement with Hardage was that the house belonged to Hardage until such time as Anderson began to bulldoze the property. This development never occurred.

Hardage visited the appellant’s office for the purpose of renewing the policy. He tendered the premium to appellant’s agent and it was accepted. At this visit Hardage explained the sale of the property and the plan for keeping the house for himself. The appellant was thus put on notice, but nevertheless renewed the policy. The house was completely destroyed by fire on August 19, 1977.

Hardage had an insurable interest in the house at the time of the loss by fire. Farm Bureau Mutual Insurance Company of Arkansas v. E. J. Barnes, 228 Ark. 68, 305 S.W. 2d 673, is a case very similar to the one at hand. There the court held that the buildings which were to have been removed were real property under “the eyes of the law”, and the plaintiff had an insurable interest within the meaning of Ark. Stat. § 66-515 (66-3901) and was entitled to recover the face value of the policy.

Appellant cites Williams v. Farmers & Merchants Insurance Company, 327 Fed. Supp. 1109 (D.C. Ark. 1971) as holding that an alleged purchase of real property under an oral agreement did not possess sufficient economic interest in the safety of the insured property to have an insurable interest therein. The facts in the Williams case are substantially different from the present case. In the present case, the purchaser of the land concedes that appellee retained ownership of the house involved.

Appellant raises the statute of frauds. The appellant, Farm Bureau Mutual Insurance Company of Arkansas, was not a party to the written or oral contract. Russell v. Keene, 239 Ark. 752, 394 S.W. 2d 131 (1965) held that a third party insurance company who was not a party to the contract may not raise the defense of the statute of frauds. This legal principle is restated in 73 Am. Jur. 2d 582 and also in 37 C.J.S. § 220(e).

We hold that appellee had an insurable interest in the property destroyed by fire. Therefore, the jury verdict for Hardage is affirmed and the appellee is awarded costs and attorney’s fee in the amount of $300.00.


text:
    Sandra J. BASS, Administratrix of the Estate of Johnny BASS v. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION
    CA 79-36
    587 S.W. 2d 48
    Opinion delivered August 15, 1979
    and released for publication October 4, 1979

      Arlan L. Woodruff, for appellant.

      Bradley & Coleman, by: Douglas Bradley, for appellee.
   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

This appeal is from a verdict directed by the trial court for the appellee, Home Federal Savings & Loan Association. The appellant, Sandra J. Bass, Administratrix of the Estate of Johnny Bass brought suit against appellee for the amount of a Credit Life Insurance policy.

Sandra J. Bass and Johnny Bass secured a loan from appellee to finance the purchase of a home. The transaction was closed by appellee’s agent at appellee’s place of business on August 18, 1976. The appellee presented the Basses with an instrument entitled Federal Reserve Regulation Z. Appellee’s employee typed the words “Credit Life” in a blank on the instrument and also typed in the cost of insurance both on an annual and on a monthly basis. The employee asked the Basses if they wanted Credit Life Insurance. Johnny Bass acknowledged that they did want such insurance and signed his name in the appropriate blank. The employee testified that she kept the applications in her desk drawer. She also testified she could not remember this particular loan closing transaction, but that her normal practice would be to process an insurance application. There was no explanation as to why an insurance application was not processed in this instance. There was no evidence to rebut the appellant’s testimony that no application was offered to her, nor was anything further said about the necessary steps required for securing such Credit Life Insurance.

In February 1977 Johnny Bass learned he had cancer. The appellant Sandra Bass checked all of the places where she had loans and learned from appellee that there was no Credit Life Insurance with Home Federal Savings & Loan. Home Federal told appellant to come in and fill out an application. Of course Johnny Bass’s application was rejected. Johnny Bass died on May 18, 1977.

In reviewing the sequence of events beginning with the loan closing, it appears that the appellant has made a prima facie case of negligence. The Basses were not advised of further action necessary until months later when it was too late. Once the question concerning Credit Life arose, and the appellants indicated their desire for Credit Life, the jury may well have found that appellants were led to believe Credit Life was being provided. The jury may also have found that there was a duty on part of appellee to process an application in the normal way. Derby v. Blankenship, 217 Ark. 272, 230 S.W. 2d 481 (1950) and Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665.

Appellee’s employee testified that Home Federal Savings & Loan was not an agent of the insurance company. However, she did testify that the chairman of the board is licensed for insurance. Whether Home Federal Savings & Loan was agent of the insurance company or agent of the Basses, its failure to procure or at least make an attempt and advise appellants within a reasonable length of time of the unavailability of the insurance is actionable. The appellant met the burden of proof necessary for the jury to decide whether or not appellee was negligent.

Reversed and remanded.