author: Minor W. Millwee, Associate Justice.

text:
    Lee v. State.
    4895
    315 S. W. 2d 916
    Opinion delivered July 1, 1958.
    [Rehearing denied September 29, 1958.]

      Edward H. Herrod, for appellant.

      Bruce Bennett, Atty. General; Thorp Thomas, Asst. Atty. General, for appellee.
   Minor W. Millwee, Associate Justice.

On May 9, 1957 the appellant, Leo Lee, was charged with murder in the first degree in the killing of another Negro, William Harrison Smith Jr., on December 26,1956. The information was amended on July 23, 1957, by additionally charging appellant with the commission of the homicide while in the attempt to perpetrate the crime of rape upon the person of Grace Helen Hays. The jury returned a verdict of guilty of first degree murder without recommending a life sentence and the trial court thereupon assessed the death penalty.

In his motion for new trial, the appellant first questions the sufficiency of the evidence to support the verdict. He earnestly contends there is a lack of sufficient evidence to show either that he assaulted and killed Smith with malice aforethought, premeditation and deliberation or that he did so in the attempt to perpetrate a rape upon the Hays girl.

The evidence adduced by the State tended to establish the following facts. Grace Helen Hays, 19 years of age, resides with her parents at 1406 Ringo Street in Little Rock, Arkansas. In December, 1956 she was at home for the Christmas vacation while in her third year in college in Michigan. On the night of December 26, 1956, she had a date with William Harrison Smith Jr. with whom she had been keeping company for three or four years. They attended a movie with Grace’s two younger sisters and a brother. After leaving the theater in Smith’s two-door Chevrolet automobile, they took the children home and proceeded to drive around for a while and parked about the middle of the 2200 block on 24th Street between Howard and Park Streets.

Grace Helen Hays testified that she was learning to drive and that she and Smith exchanged positions in the front seat shortly after they parked. After they had been sitting there about five minutes and Smith had kissed her once, a large rock crashed through the right door glass of the car and she heard a voice shout: “I am tired of this fucking here.” She saw the form of a man standing on the curb with his head above the car. As the car door opened Smith turned to his right and said: “Mister, please don’t hurt my girl,” and then said to Grace Helen, “Don’t get shook, I am shot.” Smith then got out of the car. The man she later identified as the appellant then walked in front of and to the left side of the car and said to Grace Helen: “Come on ont — I have been laying for you.” He seized her by the shoulder and forced her from the car. She fell to the ground and rolled under the car. He then said: “Come on out, I am going to kill you anyway,” and she replied: “Mister, I will do anything.” As he forced her into an alley with a pistol against her back, he asked her about her husband, her parents and where she lived. He then forced her to lie on the ground where he kissed her, placed his fingers in her privates after making her remove her undergarments. He then forced her to engage in an unnatural sexual act at gun point. After also placing his penis in her privates he released her with the warning that she not “holler or call the police.” She drove the car directly to her home, reaching there about 9:45 p. m. and the police were notified and given a description of the appellant whom she had not known previously.

After young Smith left the car he staggered to the home of Nace Bradford, a short distance from the car and slumped on his front porch. Bradford called an ambulance and Smith was taken to a hospital where he died shortly thereafter as a result of a wound caused by a bullet which entered his left side and came to rest in his right hip bone.

On May 4,1957, appellant was taken into custody by Little Bock police in connection with another shooting at Gillham Park. Two Little Bock detectives, D. M„ Cox and O. A. Allen, testified that on May 7, 1957, appellant freely and voluntarily admitted he shot someone at the scene of the killing when he came upon a couple in a car on the night of December 26, 1956; that he read the next morning that it was Smith; that he did not want to visit the scene of the shooting again; and that a day never passed that he didn’t think about the-killing. He made the same statement the next day to> the prosecuting attorney and other officers. Grace Helen was called home from college and was positive in her identification of the appellant as her assailant on the night in question and picked him out of a police line-up. She and others testified there was a street light and other lights shining in the vicinity of the killing on the night of December 26, 1956. She also stated the night was clear and that the lights in the vicinity enabled her to get a good look at the appellant while they were in the alley and that she particularly noticed his mustache and the outline of his hair.

Appellant had lived within a block of the scene of the killing for about 18 months prior to August, 1955, and had known Nace Bradford for many years. When officers visited the scene on the night of the killing, they found shattered glass where the car had been parked and a purse belonging to the prosecuting witness where she had told them she dropped it. In the excitement she was unable to distinguish between the crash of the window of the car door and the noise of a gun and did not know that a shot had been fired until the deceased told her he was shot.

Appellant testified he made the confession as the result of a beating administered to him by Officer Allen in a lonely graveyard west of Little Rock where he said the officer took him while they were on their way to State Police Headquarters on May 7th. This was denied by Allen and there were other facts and circumstances in contradiction of appellant’s version of the route taken and injuries he claimed to have sutained as a result of a beating by the officer. Appellant and his wife also testified that he did not leave home on the night of the killing.

We must, of course, consider the testimony in the light most favorable to the State in determining its sufficiency to sustain the verdict. When this is done we hold the evidence sufficient to sustain the charge that there was either a willful, malicious, deliberate and premeditated killing of Smith by the appellant or that the latter killed Smith in the attempt to perpetrate a rape upon the person of Grace Helen Hays. It follows that the trial court committed no error in refusing appellant’s request for a directed verdict of not guilty.

Appellant next assigns error in allowing the prosecuting attorney to amend the information to charge that the offense was committed by appellant while in the attempt to perpetrate the crime of rape as provided by statute (Ark. Stats., Sec. 41-2205.) Amendments like this which change neither the nature nor the degree of the crime charged are permissible under Ark. Stats., Sec. 43-1024. See Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304.

In response to appellant’s motion for a bill of particulars, the State detailed the time and place of the alleged commission of the offense. The response further stated that the State would also rely on the additional allegation that the offense was committed by appellant while in the attempt to perpetrate the crime of rape as set out in the amended information. Appellant’s complaint of the insufficiency of the bill of particulars is without merit. The information, unaided by the bill of particulars, fully complied with Ark. Stats., Sec. 43-804. This statute provides that the bill of particulars shall state the act relied upon by the State in sufficient details as formerly required by an indictment, that is, with sufficient certainty to apprise the defendant of the specific crime with which he is charged in order to enable him to prepare his defense. The information here met all requirements of the statute and the bill of particulars gave still further details and information as to the charge. Brockelhurst v. State, 195 Ark. 67, 111 S. W. 2d 527; Ragsdale v. State, 222 Ark. 499, 262 S. W. 2d 91.

Error is next assigned in admitting a photograph of the body of the deceased. In doing so, the trial court admonished the jury that the picture was admitted solely for the purpose of showing the nature, extent and location of the bullet wound and not to inflame their minds in any matter. The admission and relevancy of photographs is a matter resting largely in the discretion of the trial judge, and we find no abuse of that discretion in this case. As we said in Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17: “ Admissibility of photographs does not depend upon whether the objects they portray could be described, in words, but rather on whether it would be useful to enable the witness better to describe and the jury better to understand, the testimony concerned. Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. ’ ’

Appellant next contends the court erred in allowing his confession to be introduced into evidence. It is argued that it was not made freely and voluntarily in that it was made while appellant was in custody and before he was taken before a magistrate. The trial court followed the approved practice of first hearing the testimony in the absence of the jury as to the circumstances under which the confession was given and then submitted the question as to whether it was freely and voluntarily made to the jury on the conflicting evidence, admonishing them to disregard the confession unless it was voluntarily made. We have held in State v. Browning, 206 Ark. 791, 178 S. W. 2d 77, and several subsequent eases, that the failure to have a warrant of arrest and to take the accused before a committing magistrate does not prevent a confession made to officers from being admissible if the jury found the confession to have been voluntarily made. See Palmer v. State, 213 Ark. 956, 214 S. W. 2d 372, certiorari denied in 336 U. S. 921, 69 S. Ct. 639, 93 L. Ed. 1083. There is no evidence of a continuous inquisition persisted in to the extent of exhausting the appellant physically or mentally and thereby overcoming his will, and his testimony that he was beaten into the confession is sharply denied by the officers and other facts and circumstances.

Appellant also insists the court erred in admitting evidence that a .38 caliber revolver was taken from his home by an officer without a search warrant. While we have held evidence obtained without a search warrant to be competent and admissible, it is undisputed that the officer entered the home of appellant and took the gun with appellant’s express permission.

Complaint is also made of the court’s action in permitting counsel for the State to ask appellant’s wife the name of his first wife on cross examination. First, the witness' stated she did not know the name of her husband’s former spouse and the appellant testified, without objection, as to the name. The scope of the cross examination of a witness is largely within the discretion of the trial court and no abuse of that discretion occurred here.

Nor do we think the trial court committed reversible error in refusing appellant’s motion to allow the jury to go to the scene of the alleged beating of appellant by Officer Allen. Appellant testified he and the officer were at the scene only a short time and that he was handcuffed to a hickory tree and fell to the slate ground at the base of the tree where the officer beat and kicked him. As previously stated, this was stoutly-disputed and there is little in the testimony indicating that a visit to the scene would have had any probative value. At any rate the question of the propriety of a view of a place where any material fact is alleged te have occurred is again a matter within the discretion of the trial court under Ark. Stats., Sec. 43-2119. No abuse of that discretion is apparent in the instant case.

We have carefully examined the other assignments of error which relate primarily to the admission of certain rebuttal testimony and general objections to certain instructions given. We find no error in these assignments. The trial court’s rulings on the admission of evidence generally were very favorable to the appellant and the instructions given have been repeatedly approved by this court. On the whole case we find no prejudicial error, and the judgment is affirmed.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Monsanto Chemical Co. v. Commr. of Labor.
    5-1575
    314 S. W. 2d 493
    Opinion delivered July 1, 1958.

      Davis £ Ragsdale, for appellant.

      McMath, Leaiherman £ Woods, for appellee.
   George Rose Smith, J.

The question in this case is whether 232 employees of the appellant were entitled to receive unemployment compensation during the latter part of a strike, after the appellant, by using supervisory employees, had resumed production at its plant. The Board of Review, whose decision was affirmed by the circuit court, held that the applicants were eligible for benefits. By this appeal Monsanto asks us to reverse that decision and to direct that the payment of these benefits not be charged to its account. See Call v. Luten, 219 Ark. 640, 244 S. W. 2d 130.

Several weeks after the expiration of the contract between Monsanto and the union representing its employees, negotiations for a new contract failed, and the union called an economic strike, effective March 2, 1956. Picket lines were established, and the plant was idle until April 27. The appellees do not seek unemployment compensation for the period while the plant was not in operation. On April 27 Monsanto, by utilizing the services of 91 supervisory employees, was able to resume at least partial production. Beds were moved into the plant, which was operated twenty-four hours a day. On and after May 19 applications for benefits were filed by 232 of the 339 striking employees. The. claims involve a three-week period ending June 8, when the labor dispute was settled and the workers returned, to their jobs.

The first question is one of law and centers upon the interpretation of this language in the statute: “An individual shall not be eligible for benefits for any week with respect to which it is found that his unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed [with two provisos that are unimportant here].” Ark. Stats. 1947, § 81-1105 (f).

The issue turns upon what is meant by the phrase, “a stoppage of work.” These words appear in the unemployment acts of many other states and have been frequently construed. It could be argued that the language refers to a cessation of work on the part of the employee, in which case the phrase would be synonymous with unemployment. That construction was in fact adopted in Oklahoma, but there the rule was later changed by an amendment to the statute.

Elsewhere it has been pointed out that the Oklahoma view makes the reference to a stoppage of work meaningless, for the statutory sentence has already mentioned unemployment and presupposes the existence of that condition. See Williams, “The Labor Dispute Disqualification,” 8 Vanderbilt L. Rev. 338; Sakrison v. Pierce, 66 Ariz. 162, 185 P. 2d 528. Consequently the view is now generally accepted that the stoppage of work means a cessation of business activity at the employer’s establishment rather than unemployment on the part of the applicant for benefits. The authorities were reviewed in Abbott Pub. Co. v. Annunzio, 414 Ill. 559, 112 N. E. 2d 101, where the court observed that the majority interpretation is followed in nineteen states, while the minority rule has been applied administratively in Colorado and judicially in Oklahoma.

We have no hesitancy in assigning to our statute the meaning that has been almost unanimously given to its language in other jurisdictions. Not only does the majority rule adhere to the basic principle that every word in a statute must be given effect if possible; it also recognizes and carries out the legislative policy of avoiding favoritism toward either side in a labor dispute. As the court stated in Saunders v. Maryland Unemployment Comp. Bd., 188 Md. 677, 53 A. 2d 579.: “The purpose of the statute was to alleviate the consequences of involuntary unemployment. It was not intended to penalize or subsidize either employees or employers, lawfully engaged in a labor dispute. It was not intended to compel striking workmen to remain without its benefits longer than their own action made necessary. Nor was it intended to compel employers to finance their employees in a strike against them. It was not concerned at all with labor disputes, except in so far as it became necessary to consider them in deciding when unemployment was voluntary and when it was involuntary. And it stated how they should be considered with reference to unemployment in plain, simple and easily understood words.”

The next question is whether the stoppage of work at the Monsanto plant had ended when the present claims were filed, on and after May 19. This is an issue of fact, upon which we must affirm the Board of Review’s finding's if supported by substantial evidence. Terry Dairy Products Co. v. Cash, 224 Ark. 576, 275 S. W. 2d 12. "We are unable to say that the record is devoid of such evidence.

There is really not a great deal of conflict in the proof concerning this issue. February was the last month of normal operations before the strike. In that month, according to the report filed by Monsanto with the Oil and Gas Commission, the company produced 1,-150,320 barrels of its various petroleum products. The appellant’s witness Carney testified that in February “we had some stills shut down, which is normal.”

In May, while the supervisory employees were operating the plant day and night, the reported production was 1,082,769 barrels, and in June (the strike ended June 8) Monsanto reported an output of 1,237,592 barrels. It is shown without dispute that during the three-week period now in question the company did not operate one of its catalytic cracking stills and did not operate its alkylation plant. We infer that this prevented the company from processing some of its products to the point of complete readiness for the market, but much of the testimony is so technical that we cannot say with assurance how serious these matters really were. As Monsanto’s counsel candidly remarked to one of the witnesses: “You talk so much chemistry I’m afraid that none of us can completely understand it.”

The appellant insists that the stoppage of work must be held to have continued until the plant’s production was again entirely normal in every respect. If this view were accepted Monsanto would be right in contending that the Board’s findings are not sustained by the evidence. We are of the opinion, however, that the stoppage ends when the employer regains production to a point at which his business operations are substantially normal. As Professor Williams observes in the article cited above, it is illogical to say that the stoppage does not occur in the first place until production has fallen off by at least 20 or 30 per cent and yet to hold that the stoppage continues until the plant again reaches 100 per cent of its productive capacity. Williams concludes that “The administrators and the court will he looking for a ‘substantial curtailment’ of production and a return to substantially ‘normal production.’ More definiteness can hardly be expected in anything so obviously purely a question of degree.” See also Ablondi v. Board of Review, 8 N. J. Super. 71, 73 A. 2d 262, and Note, 12 Ark. L. Rev. 123. It is of course apparent that if a resumption of completely normal operations were required, the employer could continue the stoppage indefinitely by leaving a small department of his plant idle.

Here the proof shows that, in terms of barrels, Monsanto’s output in May and June was roughly the equivalent of normal production. That some of the stills were not operating does not show conclusively that the stoppage continued to exist, in view of the admission that it was normal for some stills to be shut down. On the record as a whole we do not feel justified in holding that the Board’s findings are unsupported by any substantial evidence.

Finally, Monsanto contends that the striking employees were not available for other work. The proof is that the 339 employees maintained a picket line consisting of 21 men at a time; this duty appears to have been rotated. The appellant, citing Producers Produce Co. v. Industrial Comm., 365 Mo. 996, 291 S. W. 2d 166, contends in substance that as a matter of law a workman cannot at the same time be available for other work and be engaged in a strike which has as its ultimate purpose a resumption of the worker’s former employment. That is indeed the view expressed by the Missouri court. The contrary position was taken in Milne Chair Co. v. Hake, 190 Tenn. 395, 230 S. W. 2d 393, and, at least inferentially, in several of the cases holding that striking employees are entitled to benefits when there is no longer a stoppage of work at the employer’s place of business.

It seems to us that the issue is essentially one of fact. Here only 232 of the 339 employees applied for unemployment compensation. The proof shows that most of the others found work elsewhere, which must have been temporary, as the record indicates that all the employees returned to work at Monsanto after the dispute was settled. The present applicants registered for work at the local office of the employment service and are not shown to have been disqualified by that office on the basis of unavailability. This showing made a prima facie case and shifted to Monsanto the burden of going forward with the evidence. Little Bock Furn. Mfg. Co. v. Commr. of Labor, 227 Ark. 288, 298 S. W. 2d 56. Monsanto made no effort to develop proof with respect to any particular applicant; it relies instead upon the appellees’ admission that the various striking employees were available for picket duty.

We do not think that the Board was required to find that the applicants would have refused offers of work in order to be on hand for occasional tours of duty on the picket line. There is no evidence to support that conclusion, which does not impress us as a reasonable one. The Board may well have inferred that some of the 107 employees who did not apply for benefits had participated for a time in the picketing before accepting new jobs. The Board may also have believed that these applicants registered at the employment office in the hope of finding work for the support of themselves and their families. It cannot be said that the undisputed evidence shows that the appellees were not available for other employment.

Affirmed.

MoF addin, J., not participating.


text:
    Finley v. Glover.
    5-1597
    315 S. W. 2d 928
    Opinion delivered July 1, 1958.
    [Rehearing denied September 29, 1958.]

      J. B. Reed, for appellant.

      Joe P. Melton and Chas. A. Walls, Jr., for appellee.
   George Rose Smith, J.

During the year 1956 the appellee Glover raised rice upon his own land and upon fifty-two acres rented from the appellant Finley. This action was brought by Glover to recover for damage inflicted upon the crop by the appellant’s cattle, it being shown that the animals were negligently allowed to enter the fields and graze on the rice. There was a verdict for the plaintiff in the sum of $3,400.

Three points áre relied upon for reversal. First, it is contended that the court erred in striking a cross-complaint that Finley had filed on the day before the trial. The case had been pending for several months and had been set for trial twenty-five days in advance. The cross-complaint averred several new matters, not related to the plaintiff’s cause of action, and would doubtless have resulted in a continuance. In these circumstances we find no abuse of the trial court’s discretion. Butler v. Butler, 176 Ark. 126, 2 S. W. 2d 63.

Secondly, Finley complains of a reference to bad checks that was made by the plaintiff’s attorney in his statement to the jury. Not only did the court at once admonish the jury not to consider counsel’s statement until it was proved, but also Finley admitted on cross-examination that he had paid for feed with a bad check. There was no error.

Thirdly, the appellant makes a dual attack upon the instructions about the measure of damages. In substance the court fixed the measure of damages as the fair market value of the rice at the time of its damage. Finley objected generally and also specifically on the ground that the jury should have been told to consider the expense of planting, cultivating, and harvesting the crop. The cost of planting entered into the value of the growing crop and could not fairly have been deducted. Had the instruction referred to what the value of the crop would have been if it had matured without damage, then it would have been necessary for the jury to be instructed to deduct those production expenses that were eliminated by the partial destruction of the crop. St. Louis S. W. Ry. Co. v. Morris, 76 Ark. 542, 89 S. W. 846. But here the charge referred only to the fair value of the rice at the time of the damage, which is also a correct way of stating the measure of permissible recovery. Miller v. Wheat, 208 Ark. 636, 187 S. W. 2d 176.

Alternatively, it is insisted that if the instructions were correct then there was no proof of the value of the crop at the time it was damaged. There was, however, evidence of what the value would have been at maturity, and we have held that such testimony supports the verdiet even without direct proof of the gathering and marketing expenses. Rogers v. Stillman, 223 Ark. 779, 268 S. W. 2d 614. Since the jury awarded less than two thirds of the estimated maturity value of the lost rice, it is evident that the production costs were taken into consideration.

Affirmed.


text:
    Board of Trustees, Univ. of Ark. v. Pulaski County.
    5-1643
    315 S. W. 2d 879
    Opinion delivered July 1, 1958.
    [Rehearing denied September 29, 1958.]

      Bruce Bennett, Atty. General; Roy Finch, Jr., Chief Asst. Atty. Gen’l.; and Ray Trammell of counsel, for appellant.

      William M. Lee, Henry B. Means, Reed Thompson, J. Frank Holt, John T. Jernigan, Joseph C. Kemp and Gardner A. A. Deane, Jr., for appellee.
   George Rose Smith, J.

By this suit the appellees, six counties and two cities, seek a declaratory judgment holding that the Medical Quota Act (Act 568 of 1957) is unconstitutional. The defendants compose the Board of Trustees of the University of Arkansas and govern the University Medical Center at Little Rock. The chancellor declared the act to be invalid and enjoined the defendants from attempting to enforce it.

By its preamble the act declares that the Medical Center is a state institution, supported by state-wide taxation, and that the use of its facilities by certain counties and municipalities has been disproportionate to comparative population. To correct this situation the act assigns quotas to each county and to each city of more than 10,000 people. Residents of the various counties and cities who are unable to pay for medical care may be treated at the state’s expense within the limits of the assigned quotas, but each county or city must pay the actual cost of charitable treatment rendered to its residents in excess of its quotas. If any city or county fails to pay within thirty days after it is billed, the sum due may be deducted from state funds that the city or county would otherwise receive.

For the most part the appellees’ attacks upon the validity of the act require little discussion. The connties ’ contention that the statute infringes upon the county court’s constitutional power to control county finances has been rejected in a number of cases, the most recent being Campbell v. Ark. State Hospital, 228 Ark. 205, 306 S. W. 2d 313, which is not dissimilar on this point to the case at bar. An allied contention, that the financial burden upon these appellees will be so great as in effect to destroy their local governments, is sufficiently answered by that provision of the act which empowers each county judge and the chief administrative officer of each city to certify the eligibility of each resident applicant for free medical care. If the charges now assertedly due from these appellees appear to be unduly great, it is because they have failed to exercise their option to control admissions to the Medical Center.

A number of contentions are based on the fact that the quotas assigned to the various counties and cities are based solely on comparative population. Before these points can be discussed it is necessary to describe the quota system in some detail.

The act provides two different quotas for each of the seventy-five counties (and for the city of Marked Tree, as we shall explain later on) and for each of the twelve cities having more than 10,000 residents. The first quota represents the number of patient-days in the hospital that are allotted annually to each county and city. Arkansas county, for example, is allowed 1,728 patient-days a year at state expense, Ashley county 1,872, and so on down the list. The various separate quotas total 140,604 patient-days a year. In like manner the act assigns to each county and city an annual quota for emergency and clinic visits to the Medical Center. These various separate quotas total 100,000 visits a year.

The act itself does not state just how these numerical quotas were determined, except that it does declare parenthetically that they are apportioned pro rata according to population. The system is explained in detail, however, in the answer filed by the appellants. It is there asserted that the Medical Center hospital has 450 beds, which can be utilized at 85 per cent of their full capacity for 365 days a year. This leads to a total of 139,613 patient-days a year (85 per cent of 450 x 365). This total was allocated among the counties and cities in proportion to their population as shown by the 1950 federal census. (That the actual total in the act comes to 140,604 instead of 139,613 is due in a negligible degree to the rounding off of fractions and, principally, to an obvious mathematical error by which Wood-ruff county was assigned 1,000 more patient-days than its relative population calls for. We assume that a mere mathematical error of this kind can be judicially corrected. See Murphy v. Cook, 202 Ark. 1069, 155 S. W. 2d 330.) When a county contained a city having more than 10,000 people the city’s population was subtracted from that of the county in fixing their separate quotas. In the same way the Medical Center’s annual capacity to take care of 100,000 emergency and clinic visits was apportioned on the basis of the 1950 census.

In addition to pleading the method of allocation in their answer the appellants offered testimony to show that the quotas were in fact determined in the manner just stated. This proof is a part of the record, though the chancellor ruled it incompetent. Perhaps the testimony would not be admissible to show what was in the minds of the legislators when the act was passed, but we see no reason why it would not be competent as tending to support the appellants’ asertion that there is a sound factual basis for the quotas allotted to the counties and cities. We need not explore this issue, however, for we can determine the method of allocation without reference to the pleadings or the proffered proof. We take judicial notice of the federal census figures, Street Imp. Dists. Nos. 481 and 485 v. Hadfield, 184 Ark. 598, 43 S. W. 2d 62, and it is a simple matter to demonstrate to a mathematical certainty that the various quotas were based upon comparative population as shown by the 1950 federal census.

It is first insisted that a classification based upon relative population alone is so unreasonable and arbitrary as to invalidate the act on the ground that it is local or special legislation. Ark. Const., Amendment 14. On this point the appellees insist that the residents of counties and cities geographically near the Medical Center will inevitably use its facilities more frequently than will citizens living far away. Hence, it is said, the assigned quotas should take into account relative distances as well as relative population.

This argument overlooks the basic purpose of the act, which is to distribute the burden of maintaining the Medical Center equitably among the several counties and cities. A quota system based upon population appears to us to be an altogether fair method of accomplishing the legislative purpose; certainly it is not so unreasonable as to warrant a holding that comparative population has nothing to do with the purpose of the act. See the Hadfield case, supra. The appellees’ position really narrows down to the contention that, merely because they happen to be near the Medical Center, they should not be required to pay their fair share toward maintaining the institution. This position is obviously without merit.

A further contention is that the distinction between cities having more than 10,000 people and those having-less than that number is arbitrary. "We do not think so. The system involves no duplication or favoritism, for the population of these larger cities was deducted from that of their respective counties. The legislature may well have believed that a small community might be unable to afford to pay its ostensible share upon a quota basis, since serious illnesses befalling a few of its indigent citizens might result in medical bills amounting to thousands of dollars. Hence the risk of such a calamity was spread over the particular county as a whole. On the other hand, the legislature may have believed that the larger cities were sufficiently populous to warrant their being treated on the same basis as a county. We think it plain that some classification as between large cities and small ones is justifiable, and it is not for us to say that the line as drawn by the legislature is arbitrary.

The act is also objected to on the ground that it is based only on the 1950 census, with no provision for an adjustment of quotas to meet future shifts in population. On this point the appellees cite a number of our cases holding that a classification based upon a particular census makes the act a local one, since no other city or county can ever be admitted to the class.

We do not regard those cases as controlling here. Such acts are local because they amount to a singling out of a particular community for special treatment. As Sutherland points out in § 2109 of his work on Statutory Construction (3d Ed.): “An act limited to a particular census is a form of identification.” Our own decisions are to the same effect. As we said in Ark-Ash Lbr. Co. v. Pride & Fairley, 162 Ark. 235, 258 S. W. 335: “In other words, this statute selected Mississippi County as its only field of operation as unerringly as if it had been made to apply to that county by name.”

That is not the situation here at all. The act does not attempt to identify any county or city by the subterfuge of referring to a particular bracket in the census figures. Quite the opposite, the counties and cities are referred to by name, and a quota is assigned to each. If the quotas were in fact fairly assigned on the basis of the 1950 census, it would not now be a valid objection that they might become discriminatory when the 1960 census is taken. The principle is well settled that a statute may be valid when enacted but may become invalid by changes in the conditions to which it applies. Nashville, C. & St. L. Ry. v. Walters, 294 U. S. 405, 55 S. Ct. 486, 79 L. Ed 949; Atlantic Coast Line R. Co. v. Ivey, 148 Fla. 680, 5 So. 2d 244; Vigeant v. Postal Teleg. Cable Co., 260 Mass. 335, 157 N. E. 651; Pennsylvania R. Co. v. Driscoll, 330 Pa. 97, 198 A. 130. Hence if the Medical Quota Act could be shown to be free from discrimination on the basis of the latest census, we would not hold it invalid upon the ground that it might later become discriminatory. It might have been better for the appellants to have been invested with power to reapportion the quotas to meet changes in population, as was done in the case of the Tuberculosis Sanatorium, Ark. Stats. 1947, § 7-311; but that precaution was not essential.

The appellees’ remaining contention, however, is unanswerable; that is, that the Medical Quota Act discriminates in favor of Poinsett county and Marked Tree. It is of course well settled that an act which does not apply uniformly throughout the state is local if one county is arbitrarily selected for special treatment. “The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute.” Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617; Smith v. Cole, 187 Ark. 471, 61 S. W. 2d 55.

In the act before us Marked Tree, a city in Poinsett County, is included in the list of counties and is given annual quotas of 211 patient-days and 151 emergency and clinic visits. The quotas for Poinsett county are 2,870 patient-days and 2,055 visits. If the population of Marked Tree had been subtracted from that of the county, as was done in the case of the larger cities, the act would be mathematically defensible and it might be assumed that the General Assembly had a sound reason for its special treatment of this city of less than 10,000.

That, however, wras not done. For convenience we discuss only the quota for annual visits, though the discrimination exists in the patient-days quota as well. According to the census the 1950 population of the state as a whole was 1,909,511. Poinsett County, with a population of 39,311 (including that of Marked Tree), was therefore entitled to 2,058 of the 100,000 apportioned visits. It was in fact given a quota of 2,055. But Marked Tree, with a population of 2,878, which had already been counted in that of the county, was assigned a quota of 151 visits, which, had there been no duplication, is mathematically correct on the basis of Marked Tree’s population. Thus Poinsett county as a whole was allowed 2,206 visits, when its total population entitled it to only 2,058.

It further appears that the other counties and cities have been made to pay for the favoritism extended to Poinsett county and Marked Tree. Arkansas county, with a population of 23,665, was entitled to 1,239' visits on the basis of the state’s true population of 1,909,511. But when Marked Tree’s population is counted twice, making a fictitious state total of 1,912,389, Arkansas county then receives only 1,237 visits, and that is the figure in the statute. In short, Arkansas county is made to pay for two of the free visits allowed to Marked Tree. Next in alphabetical order, Ashley county, with an enumeration of 25,660, was entitled to a quota of 1,344, but the duplication reduced its quota to the statutory figure of 1,341. And so on down to Yell county, whose true quota of 736 was cut down to 735. Even Poinsett county was affected, its correct quota of 2,058 having been reduced to 2,055.

If we could conscientiously say that the demonstrable discrimination was inadvertent, it might be possible for us to hold, as we have intimated with respect to the mathematical error of 1,000 in Woodruff county’s patient-days quota, that practically every one of the 176 numerical quotas in the act should be judicially construed to read other than they do. But we perceive no reason to suppose that the draftsman of the act intended for it to read differently. To include the city of Marked Tree in the list of counties was certainly not an oversight. To allot that city an undeserved quota of 151 and then to calculate every other quota so that Marked Tree’s windfall was proportionately distributed among the other cities and the counties was not an oversight. We cannot escape the conclusion that the discrimination was deliberately written into the act, beyond the reach of judicial correction. As much as we are in sympathy with the purposes of the act, we have no alternative except to hold that it violates the constitution.

Affirmed.

Holt, MoFaddin, and Millwee, JJ., dissent.


author: George Rose Smith, J. Carleton Harris,

text:
    Wright v. Sullivan.
    5-1689
    314 S. W. 2d 700
    Opinion delivered July 1, 1958.

      H. II. MacAdams and Penix & Penix, for appellant.

      Bruce Ivy, for appellee.
   George Rose Smith, J.

The issue in this case is whether the appellant Wright is entitled to have his name appear on the ballot in a Democratic primary to be held later this summer. It is conceded that the appellee Sullivan duly qualified as a candidate for nomination to the office of county sheriff. The only other candidate who attempted to qualify was the appellant, but by oversight he failed to file his corrupt practice pledge until May 2, the ticket having closed on April 30. Sullivan then filed this action for a declaratory judgment, naming Wright and the members of the Democratic county committee as defendants. The trial court held that the pledge had been filed too late and enjoined the committee from placing Wright’s name on the ballot.

The statute requires that the corrupt practice pledge be filed ninety days before the election. Ark. Stats. 1947, § 3-1304. The difficulty lies in the fact that two primary elections have been necessary since the adoption of Amendment 29 to the constitution, which requires that party nominees receive a majority vote. Wright’s pledge was not filed ninety days before the preferential primary, which will be held on July 29, but it was filed more than ninety days before the general or run-off primary, which will be held on August 12. Wright contends that the latter date should be controlling, since the law provides that when there are, as here, only two candidates for an office the contest is to be determined at the second primary election. Ark. Stats., § 3-212.

We think this question has been determined adversely to the appellant by the explicit language of the statutes. By Act 238 of 1943 the legislature declared that when there are only two candidates for an offiee “the time for filing pledges and payment of fees shall be reckoned from the date of the preferential primary election.” Ark. Stats., § 3-212. In a later section of the same act it is directed that only the general primary shall be held if there are no races involving three or more candidates, “provided, however, the time for filing pledges and payment of fees shall be reckoned from the date on which the preferential primary would have been held had one been necessary.” Ark. Stats., § 3-214. Thus the General Assembly has twice declared that the time is to be calculated from the date of the preferential primary even if only two candidates have qualified.

The appellant contends that in the statutes just quoted the reference to “pledges” should be taken to mean party loyalty pledges only, since those happen to be the only pledges that are mentioned elsewhere in the act. Ark. Stats., § 3-213. We think it reasonable to believe that the legislature meant to include both types of pledge in its mandate and thus to avoid the confusion that would inevitably occur if the time for filing the corrupt practice pledge should be dependent, as the appellant insists, upon the number of candidates eventually seeking the office. It is conceded that the date of the preferential primary determines the time for the filing of the party loyalty pledge and for the payment of the ballot fee. We are not convinced that the legislature meant to fix a different date for the filing of the corrupt practice pledge, which is equally a requirement to be met by a candidate for office.

The appellant also asks us to hold that the filing of the pledge two days late amounted to a substantial compliance with the statute. This position might be well taken if no objection has been raised until after the election, for then the requirement could be regarded as directory; but we have often held that the provisions of the election laws are mandatory if enforcement is sought before the election. Orr v. Carpenter, 222 Ark. 716, 262 S. W. 2d 280; see also Fletcher v. Ray, 220 Ark. 844, 250 S. W. 2d 734. and Byrd v. Short, 228 Ark. 368, 307, S. W. 2d 871. The appellant cites a number of cases involving the principle of substantial compliance, but only in the case of Fisher v. Taylor, 210 Ark. 380, 196 S. W. 2d 217, was the objection made before the election. That case involved a party loyalty pledge executed on behalf of a member of the armed forces, serving on board ship, and we based our decision on the special consideration that the law accords to soldiers and sailors absent from home in defense of their country. It was specifically stated that the rule there applied would not be controlling ‘ ‘ under ordinary and normal conditions, ’ ’ which are the conditions presented by the case at bar.

Affirmed.

Harris, C. J., concurs.

Carleton Harris,

Chief Justice, concurring. I agree that Act 238 of 1943, which directed that “the time for filing pledges and payment of fees shall be reckoned from the date of the preferential primary election”, applies to all “pledges” and not just to party loyalty pledges. I likewise agree that this provision is mandatory, since the word “shall”, in my opinion, means “must”. However, this Court has not always followed that rule. In the case of Fisher v. Taylor, 210 Ark. 380, 196 S. W. 2d 217, the Court permitted a pledge to he filed by a person other than the candidate, the candidate having given his power of attorney to his mother to act in that respect. While I agree that the Fisher case involved extraordinary circumstances, I also feel that the Court made a mistake in making any exception to the statute. In the first place, both the party loyalty pledge and corrupt practice pledge are personal pledges, and therefore should be made by the candidate himself. In the next place, I can think of no valid reason that would prevent prospective candidates from complying with the provisions of the Act. The pledge does not have to be filed on a particular day; in fact, it can be filed for months preceding the deadline. Accordingly, sickness, or other casualty occurring on a particular day, could not justify one in failing to comply Avith the Act.

Other cases are cited by appellant as authority for their contention that the statute is not mandatory which, as the majority opinion points out, were cases instituted, and determined by this Court after the election was over. I recognize the rule to be different where objection is raised before the election, in contrast to where litigation is commenced after the election, but I feel that some of the language used in prior decisions has justifiably given rise to the belief that the statute is not mandatory, and I am of the opinion that this Court should take the present opportunity to correct that language. For example, let us look at the case of Spence v. Whitaker, 178 Ark. 51, 9 S. W. 2d 769. There, the candidate mailed his corrupt practices pledge to the Secretary of the State Democratic Central Committee, instead of to the Secretary of State, as required by laAV. In holding that this constituted substantial compliance, this Court said:

‘ ‘ If one should deliberately fail or refuse to file the pledge required by the law, it would be the duty of the committee to refuse to put his name on the ticket. But where, as in this case, the evidence shows that the candidate was gnilty of no violation of the Corrupt Practice Act, that he intended in good faith to comply with the provisions of the law, and that no harm resulted, * * such error did not deprive him of his right to have his name placed on the ticket. Further quoting from the opinion:

“The intention of the law is to assure fairness and honesty and the nomination of the man favored by a majority of the voters. If the Legislature had intended that a failure to file this pledge should deprive one of the right to have his name on the ticket when there was no question of any wrongful conduct or any attempt to violate or evade the law, it would have provided in plain language that this should operate as a disqualification.”

In the case of Taaffe v. Sanderson, 173 Ark. 971, 294 S. W. 74, a candidate for sheriff filed a statement setting out that he was familiar with the corrupt practice act, but he did not add that he would, in good faith, comply with its terms, as required by the statute. This Court held that this form of pledge constitute_d substantial compliance.

In the instant case, it would be difficult for me to say that Wright’s failure to file the pledge was deliberate— nor does the majority opinion so state. It is not contended that he has violated any election laws, or is contemplating the violation of same. He simply overlooked filing the pledge.

I reiterate my agreement with the result reached by the majority, but I also think that we should take occasion to make it clear that the word “mandatory” has the meaning given to it by the dictionary — “obligatory”. I consider that when the provisions of a statute are mandatory, there is a peremptory or absolute command to comply with such statute. In other words, I would recognize no exception, and therefore, would point out that the reasons given by this Court in the Spence case, herein quoted, as justifying non-compliance with the Act, would no longer be considered excusable or justifiable grounds for failure to file the pledge.


author: Paul Ward, Associate Justice.

text:
    Clark v. Ottenheimer Brothers.
    5-1623
    314 S. W. 2d 497
    Opinion delivered July 1, 1958.

      M. V. Moody, for appellant.

      Riddick Riff el, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation case and the principal controversy is over what constitutes an accidental injury within the meaning of the Act. The circuit court affirmed the full commission denying compensation, hut we have concluded that the cause must he reversed and remanded.

Set out hereafter are the material facts which are not in dispute unless so indicated. Appellant, Mrs. Ovada Clark, became an employee of the respondent, Ottenheimer Brothers, on August 26,1953 and continued working until she was forced to quit because of a hack injury (ruptured disc) on August 30, 1954. Respondent is engaged in manufacturing wearing apparel, such as dresses. At first appellant was employed as a sewing machine operator, then at making boxes by folding flat cardboard pieces, hut on June 14, 1954 she became what was known as a production line service girl. As such her duties were to keep each sewing machine operator on a production line supplied with materials as they came from the cutting room. It was part of her job in this connection to carry rather large bundles and place or pile them on a cart or platform with rollers. These bundles each contained from 3 to 5 dozen dresses and some of them weighed about 40 pounds each according to the commissioner who first heard the case but, according to other testimony, some weighed as much as 60 pounds each. At times appellant, who was 37 years old and only slightly over five feet tall, lifted the bunles to a height of about 6 feet in order to pile them on the cart, and it was of course a part of her job to remove them for distribution. Appellant noticed her back hurting slightly for about two weeks before it became so severe she had to quit work. She went to several doctors and finally it was determined that she had a ruptured spinal disc which was removed by an operation. The insurance carrier voluntarily paid compensation for 13 weeks and then suspended further payments on the ground that she had not sustained a compensable injury. Appellant was still unable to return to work more than a year after her injury.

It is conceded that appellant is not entitled to compensation unless the record discloses two things: One, that she had an accident as that word is defined by our decisions, and; Two, that there was a causal connection between the accident and the injury.

One. Accident. If there was an accident all the testimony shows it arose out of and happened during the course of her employment. This case was first heard by one commissioner whose opinion denying compensation was brought to us by certiorari. This opinion was adopted by the full commission. We have read the commission’s opinion carefully and we are convinced it was meant to deal only with the question of whether or not there was an accident. The commission found there was no accident, and in doing so, we think, it fell into error.

After setting out the contention of the claimant, the opinion states: “Respondents controvert this claim on the grounds that claimant did not sustain an accidental injury, and that any disability she has had since the last date of her employment is not the result of an accidental injury.” Following this, and after summarizing the facts, the opinion, under the heading FINDING, states: “That claimant did not sustain an accidental injury arising out of and during the course of her employment”. Nothing was said about causal relationship in the commission’s FINDING. This view which we think the commission took of the decisive issue is supported by some of the language it used under the heading of CONCLUSIONS. The pertinent words have been emphasized by us. It said:

“It is the Commissioner’s interpretation of the evidence herein that the nature and volume of work performed, as well as the rapidity with which it was accomplished by claimant while being employed as a service girl remained substantially constant, so that there was no increase in the work load from the time she started on this job until the time she quit.

“The holdings of our State Supreme Court have been such as to include, under certain conditions, an increased work load as constituting an accidental injury within the meaning of the Act; however, in the instant case, the preponderance of the evidence clearly establishes, in the opinion of the Commissioner, that there was no increased work load while claimant was employed as a service girl. ’ ’

Much of the testimony was directed to the issue of whether there was an increased work load placed on appellant just previous to her injury, and we readily agree there is substantial evidence to support the commission’s finding that there was no such increase. We do think, however, the commission erred in taking the view, as it obviously did, that it was incumbent on appellant to show, as a prerequisite to compensability, an increased work load. It is our view that an accident may occur when there is no increase in work load. It is understandable how the commission might have been led into its mistaken view by the language in some of our former opinions. However, we think the law on this point was clearly and unequivocally settled against appellee in the case of Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436.

The case above cited is an exhaustive discussion of the very point here under consideration. It comments on Ark. Stats. § 81-1302 (d) pertaining to an accidental injury, on the rule in England where compensation acts originated, on various opinions from this court and other jurisdictions, and on the majority and minority rule. A careful reading of the opinion leaves no doubt as to what it holds, the essence of which appears from a few excerpts. “If we should adopt a requirement that the work or strain be unusual or extraordinary we would reject the construction put on our statute in the jurisdiction from which it was borrowed and read into the law a requirement which greatly increases litigation to determine the elusory difference between usual and unusual strain or exertion.” The opinion further states: “Notwithstanding anything we may have said in prior cases, we hold that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.”

Speaking now solely of what may constitute an accident under the holding in the Bryant Stave case it is clear that it was not incumbent upon appellant to prove an increased work load. This, however, ivas the exact burden which the commission and the trial court placed upon the appellant.

It makes no difference, we think, that appellant felt symptoms of her injury two -weeks before it became so painful she could work no longer, if in fact the usual work load caused the ruptured disc in her spine. For that matter who knows whether the disc was ruptured on August 30 or two weeks earlier, and it would be folly to speculate.

Two. Causal Connection. Judging from the basis of the commission’s finding and from the evidence produced by respondent, it appears to us there was no serious contention that appellant’s injury was not the result of the accident, or, in other words, the result of the work she was doing. There was no evidence and no opinion to the effect that appellant’s injury was not or could not have been caused by the heavy lifting she did. None of the four doctors who treated her, including the one who operated on her and removed the disc, was ever asked'if the injury could have been caused by the work she was doing, and none expressed an opinion about the matter one way or the other. On the other hand the first doctor who treated appellant gave this written statement: “My opinion is the work she was doing at Ottenheimers Bros, was the causative factor to her troubles. As she stated, the work she was doing was carrying heavy bundles of dresses for a service line.” The record shows that appellant did not mislead the doctor as to the nature of her work. This medical testimony is not refuted nor does it seem unreasonable, considering her size, her age, the weight of the bundles, and the height to which she lifted them, working 8 hours a day. Also, one other woman received similar injuries while doing work of a similar nature at the same place.

Since the cause appears to have been fully developed, we find from the undisputed evidence that appellant sustained an accidental injury which arose out of and during the course of her employment, and for that reason the cause is reversed. Also, since it appears that appellant had not fully recovered from the injury at the time of the hearing before the full commission, the cause is remanded to the trial court with directions to remand to the commission for further proceedings consistent with this opinion.


author: Sam Robinson, Associate Justice. George Rose Smith, J.,

text:
    Union Life Ins. Co. v. Rhinehart.
    5-1564
    315 S. W. 2d 920
    Opinion delivered July 1, 1958.
    [Rehearing denied September 29, 1958.]

      E. M. Arnold; M. J. Harrison, of counsel, for appellant.

      Pope, Pratt iS Shamburger by Richard L. Pratt, for appellee.
   Sam Robinson, Associate Justice.

Tbe issue is whether under the terms of a “binding receipt” appellant insurance company is liable on a policy of insurance, the applicant having died before the policy was issued or the premium was returned to the applicant. There is no substantial dispute as to the facts, and from a judgment in favor of the beneficiary named in the application the insurance company has appealed.

On the 12th day of October, 1953, an agent for appellant, Union Life Insurance Company, procured from Edgar Hamilton Thomas an application for a $5,000 policy of life insurance. Thomas paid $119.00 as a year’s premium in advance. The agent told him he was insured from that date and issued to Thomas what is called a “Binding Receipt”, which provides: “This receipt must not be detached unless first premium is collected in full at the time of application and shall operate as a BINDING RECEIPT under the conditions set forth below and on the reverse side hereof. Received from . . . representing premium in connection with this application for insurance in Union Life Insurance Company, said application bearing the same date and number as this receipt and which application contains applicant’s declaration that he has paid the sum hereby receipted for and that he assents to the terms of this receipt. This receipt is subject to the terms and conditions shown on the reverse side hereof and agreed to by the applicant in the application. NOTICE: This receipt shall not cover insurance protection in excess of $75,000 on any one applicant nor for any premium for the insurance applied for except the first premium thereon which in no event shall be less than the premium for two months or more than one annual premium for such insurance together with the premium for preliminary term insurance if any.”

On the reverse side: “FIRST — If a full first premium for the type of policy and amount of insurance applied for has been paid at the time of making this application, and as stated in this application, then the insurance so applied for (subject to all provisions of the policy contract applied for and in use by the company at this date) shall be effective as of the date of this application PROVIDED the applicant is on the date of this application or date of last examination, whichever is later, a risk acceptable to the Company on the plan and for the amount of insurance applied for, otherwise the payment evidenced hereby shall be returned and this receipt shall be considered null and void. (Emphasis supplied)

“SECOND — This receipt shall operate as a conditional receipt if the insurance is not effective coincident herewith under the exact conditions heretofore stipulated. If the application is not accepted exactly as made, then no insurance shall be considered in effect under the application. . . .”

In the application Thomas stated that he has or had been told that he had disorder of digestive organs such as appendicitis, stomach trouble, ulcer, etc., and heart disease or high blood pressure; that he had been confined to a hospital; that he had undergone a surgical operation; and that he had been rejected for military-service because of hypertension. No medical examination was to be made in connection with the application. The application further provides that “any policy issued shall not take effect unless and until the first premium has been paid and the policy delivered to the applicant during the good health of applicant excepting only such conditions as may be disclosed in this application and during the lifetime of the applicant (except if there is a receipt on the company’s form and bearing the same number as this application given at the time of making this application and showing that the full first premium has been paid in cash, the terms and conditions of said receipt being hereby agreed to and accepted by the applicant). That the acceptance by the applicant of any policy issued shall constitute ratification by the Applicant of any provision therein regarding war service and aviation and that the Company shall have the right to reject or amend this application and shall not be required to give cause to anyone for such action; that the company shall have sixty days from the date hereof within which to consider and act upon this application and if within such period a policy has not been received by me or if I have not received notice of approval or rejection, then this- application shall be deemed to have been declined by the Company.” (Emphasis supplied)

Soon after receipt of the application and annual premium, the insurance company notified its soliciting agent, who in turn notified Thomas, that a medical examination would be required. Thomas never submitted to a medical examination, and died on December 3, 1953, and it is agreed by the parties that if Thomas had lived sixty days the premium would have been returned to him.

The binding receipt certainly binds the insurance company to something. The applicant didn’t need to be bound by the receipt; he paid the premium in advance. The words “binding receipt” imply that the insurance company is obligated in some manner. When all of the terms and conditions of the binding receipt and the application are considered, there is some ambiguity, which must be construed against the insurance company, as the receipt and application were on the printed forms of the company.

Litigation involving similar binding receipts has been before the courts many times and the decisions are far from harmonious. There is a long annotation on the subject in 2 A. L. R. 2d 943. As an introductory statement the annotator says: “It is the practice of most life insurance companies to state in their applications that the contract of insurance shall not take effect until the application has been approved by the company, the first premium paid by the applicant, and the policy delivered.

“Since, in the absence of a specific agreement, the payment of the first premium and the delivery of the policy are concurrent acts, a period intervenes between the signing of the application by the applicant and the delivery of the policy. During this period no money has been advanced to the insurance company, and no insurance is in effect. This interval, of a few days to several weeks, depending upon the time consumed in investigation and physical examination of the applicant, in passing upon his application at the home office, and in the traveling of the application and policy to and from the home office, is highly undesirable from the point of view of the insurer as well as of the applicant. The disadvantage to the applicant consists in the fact that he is not covered by insurance during this period, while the disadvantage to the insurer consists in the fact that during the period the applicant possesses the power to revoke the offer made in his application. This disadvantage is a very real one as far as the insurer is concerned, since if the applicant decides to exercise his power, either because he chooses not to carry any insurance at all, or because he chooses to purchase it of a rival company, the company suffers a loss of what it has expended for the investigation and medical examination of the applicant, aside from the loss of business itself.

"To obtain some measure of protection against the applicant’s arbitrary withdrawal of his offer during the company’s extensive investigation of his insurability, the insurance companies have hit upon the idea of issuing-so-called binding receipts to the applicant upon the payment of the first premium. These binding receipts, or conditional binding receipts, as these instruments are sometimes, though less frequently, called, usually contain a provision which, in some instances, is duplicated in the application itself, to the effect that the insurance shall be considered as in force from the date of the receipt, or the date of the medical examination, provided the application is approved and accepted at the home office of the insurer. Sometimes the date of approval or of issuance of the policy is chosen as the date the policy shall become effective, and in some instances no condition is imposed upon the applicant. The exact language of these provisions varies greatly.

"The issuance of these binding- receipts effectively does away with the disadvantage threatening the insurer. They protect it in two ways: The applicant to whom a binding receipt is issued feels, as a rule, contractually obligated to perform and, should he withdraw his application, he is unlikely to resort to a law suit to recover the relatively small sum paid. In addition to achieving this primary object, the issuance of a binding- receipt has the incidental advantage for the insurer that it serves to give the insurer the use of the premium money at the earliest date possible and that it offers a selling point of which no agent fails to make the utmost in his talks with prospective customers.”

The validity of contracts- for temporary insurance in the nature of binding receipts is well established. In Cooksey v. Mutual Life Ins. Co., 73 Ark. 117, 83 S. W. 317, the court said: "It is not an unfamiliar custom among life insurance companies in the operation of the business, upon the receipt of an application for insuranee, to enter into a contract with the applicant in the shape of a so-called ‘binding receipt’ for temporary insurance pending the consideration of the application, to last until the policy be issued or the application rejected, and such contracts are upheld and enforced when the applicant dies before the issuance of a policy or final rejection of the application. It is held, too, that such contracts may rest on parol.” It will be recalled that in the case at bar the insurance went into force as of the date of the application unless the application was rejected and the premium returned to the applicant.

Appellant cites quite a few cases which it is claimed sustain the contention that under the terms of the binding receipt in the case at bar the insurance was not in force at the time of applicant’s death, but most of these cases are distinguishable from the case at bar. In Reynolds v. Northwestern Mut. Life Ins. Co., 189 Iowa 76, 176 N. W. 207, there is no showing of the failure to return the premium, as in the case at bar. In fact, just the contrary is indicated. Warren v. New York Life Ins. Co., 128 F. 2d 671, provides for medical examination, and there was no return of premium clause in the binding receipt in that case. Gonsoulin v. Equitable Life Assur. Soc., 152 La. 865, 94 So. 424, provides that the premium shall be returned on demand and surrender of receipt. There is no such provision in the receipt involved in this case. And to the same effect are other cases, such as State ex rel. Equitable Life v. Robertson, Mo., 191 S. W. 989; New England Mut. Life Ins. Co. v. Hinkle, 248 F. 2d 879. In Kronjaeger v. Travelers Ins. Co., 124 W. Va. 730, 22 S. E. 2d 689, no binding receipt was given. The applicant was given an “informal receipt”, but the terms of that receipt are not shown. In Paulk v. State Mutual Life Ins. Co., 85 Ga. App. 413, 69 S. E. 2d 777, applicant was required to take a medical examination. In that case it was said: “Since the applicant was required to take the medical examination, after which the company would determine whether or not the applicant was an acceptable risk, no valid contract of insurance arose in the absence of approval by the company.” In Leube v. Prudential Ins. Co., 147 Ohio St. 450, 72 N. E. 2d 76, 2 A. L. R. 2d 936, the receipt contained no provision for cancellation by return of premium, and in that case the court said: ‘ ‘ Where a preliminary or temporary contract provides that it shall be operative from its date or other specified date subject to acceptance of the application or approval of the risk, it is effective from the specified date according to its terms where the company accepts the application or approves the risk; but where the company exercises its rights of disapproval in the manner specified the insurance ceases instantly, and no liability arises thereunder.” (Emphasis supplied) In the case at bar the company did not exercise its right of disapproval in the manner specified in the receipt, which was by the return of the premium.

Stonsz v. Equitable Life Assur. Soc., 324 Pa. 97, 187 A. 403, 107 A. L. R. 178, is very similar to the case at bar. In speaking of the binding receipt the court said: ‘ ‘ The purpose of this clause, ‘insurance ... shall take effect as of the date of this receipt’ was to provide an inducement for the payment by appellee of the first premium in advance and to give preliminary protection to the insured until the issuance of the policy. ... If this clause of the receipt was not intended to provide interim insurance to appellee as a separate and distinct contract from the policy to be issued, what is its effect1?” No answer has been suggested in any of the cases except that the binding receipt is a form of temporary insurance, which goes' into effect as of the date of the receipt.

In Albers v. Security Mut. Life Ins. Co., 41 S. D. 270, 170 N. W. 159, the court said: “If the company did not intend that there should be insurance effective pending the date of the application and the date of the approval of the risk and the issuance of the policy, then the company would be charging and obtaining the full amount of the premium for one year, while the period of actual insurance would be as many days less than one year as there were days intervening between the date of the application and the approval. This would not be dealing honestly with the insured. By the payment of the premium for one year an insured is entitled to insurance for one year.” And the court said, in Starr v. Mutual Life Ins. Co. of N. Y., 41 Wash. 228, 83 P. 116: “If there was to be no contract of insurance in any event until the application was approved at the home office and a policy issued thereon, it would seem entirely immaterial to the insured whether the contract related back to the date of the application or not. If he lived until the application was approved and a policy issued, it would seem a matter of indifference to him whether he had been insured during the interim between the date of the application and the date of the issuance of the policy. On the other hand, if he died before the application was approved and the policy issued, his beneficiaries would derive no benefit from the insurance. The chief object of the provision would, therefore, seem to be to enable the insurance company to collect premiums for a period during which there was in fact no insurance, and consequently no risk. ’ ’

Appellant insurance company contends that the application for insurance was rejected and the applicant so notified, and that since the application was not accepted there is no liability on the part of the insurance company. It is admitted, however, that the premium was not refunded to the applicant. The binding receipt specifically sets out the terms and conditions upon which the receipt can be considered void, and that was by a return of the premium. The binding receipt put the insurance into effect as of the date of the receipt (there was to be no medical examination) provided the applicant was a risk acceptable to the company, and if the applicant was not an acceptable risk the premium was to be returned. The premium was not returned. True, the insurance company had sixty days in which to decide whether to issue a policy, but in the meantime the temporary insurance was in force unless the company avoided that risk by returning the premium. This was not done.

Affirmed.

George Rose Smith, J., dissents.

George Rose Smith, J.,

dissenting. It is certainly a sound rule that an ambiguity in an insurance contract is to be construed against the insurer, but I cannot see what the rule has to do with this case. The majority say: “When all of the terms and conditions of the binding receipt and the application are considered, there is some ambiguity, which must be construed against the insurance company * * * ” Yet nowhere in the majority’s fairly long opinion is there a sentence or even a word stating in what respect the receipt and application are ambiguous. The courts have often condemned the practice of creating an ambiguity, where there really is none, in order to resolve it against the insurer; but it is something new for a court merely to announce the rule and on that basis hold the insurer liable, without at least suggesting what language is ambiguous.

The majority also state: “The binding receipt certainly binds the insurance company to something.” It certainly does. It binds the company to issue a policy as of the date of the receipt if the applicant is a risk acceptable to the company. That obligation is illustrated in two of the three cases relied upon by the majority, the Albers case and the Starr case. In both those cases the insured was in fact in good health when the binding receipt was issued and was later approved as a risk acceptable to the company. In both cases the applicant died before the policy was delivered. It was correctly held in each case that the company was liable, for that interim protection is exactly what the binding receipt provides. Of course the distinction is that in those cases the applicants were acceptable risks; here Thomas was admittedly not an acceptable risk.

It is convenient at this point to mention the only other decision relied on by the majority, the Stonss case, which the opinion describes as “very similar to the case at bar.” Very similar? In that case the insured was not only in good health but the policy was actually issued and delivered to him. The company, however, had dated it as of its issuance rather than as of the issuance of the binding receipt, and the only question was its liability for disability arising in the interim. I find it difficult to discover the similarity.

Laying aside the matters just mentioned, I come to what seems to be the sole reason for imposing liability in this case: the fact that the insurer had not returned the premium at the time of the applicant’s death. That point can he considered in either of two ways, but in neither instance can it be said to have resulted in the creation of a contract of insurance between the parties.

First, was it the insurer’s duty to return the premium within less than sixty days after the issuance of the binding receipt? I cannot see that it was. The company had sixty days in which to decide whether Thomas was an acceptable risk. If Thomas had died during the sixty days and also before the company had reached its decision, the insurer would not have been liable if it later determined in good faith that Thomas was not insurable.

The only difference is that here the company reached its decision, in good faith, before the applicant’s death. It notified Thomas that the policy could not be issued without a medical examination, but it did not return the premium, nor did Thomas ash that it he returned. Under the majority’s reasoning the insurance contract must have come into existence at that instant, for neither party ever took any other step toward the making of a contract. In other words at that point, because the premium had not been returned pending the medical examination, Thomas could have brought a suit for specific performance to require that the policy be issued. I need not dwell on the patent fallacies in this reasoning. Of course Thomas could have requested the return of his premium, but he chose not to do so. He knew that the company was unwilling to issue the contract; so how can it be said that there was a meeting of the minds, when neither party to the transaction either thought or had the slightest reason to think that an agreement had been reached?

Second, if we assume for the sake of argument that the company was required to return the premium pending the medical examination, what then? The plain answer lies in the language of the binding receipt: that receipt continued in force rather than becoming “null and void.” Thomas’s rights, and those of his estate or beneficiary, must then be determined by the provisions of the receipt, which declares in unambiguous language that the insuranee shall not be effective unless the applicant is a risk acceptable to the company. It has never been suggested that the company did not act in good faith in determining that Thomas was not an acceptable risk. Thus even if we regard the receipt as having been in force at the time of Thomas’s death, it is still not a basis for affirming this judgment.


author: Sam Robinson, Associate Justice.

text:
    Arthur v. Simmons & Williams Const. Co.
    5-1626
    315 S. W. 2d 926
    Opinion delivered July 1, 1958.
    [Rehearing denied September 29, 1958.]

      Paul K. Roberts, for appellant.

      John H. Kimberly, for appellee.
   Sam Robinson, Associate Justice.

This is a workmen’s compensation case. Chester Arthur, the employee, was working as a laborer for Simmons & Williams Construction Company. On the 25th day of September, 1956, Arthur was pushing a wheelbarrow loaded with sand, when he felt a pain in his leg and his leg became swollen. He was totally disabled for a period of eight weeks, and in addition to the eight weeks period, he claims a 5 per cent partial permanent disability to a portion of his leg. He filed his claim with the Workmen’s Compensation Commission. At a hearing before the referee he contended that his disability was due to having rolled the wheelbarrow across an electric line lying on the ground, thereby receiving an electrical shock. His claim for compensation was denied by the referee and at a hearing before the full commission he made the additional contention that if the condition of his leg was not due to having received an electrical shock it was due to a strain he received while pushing the wheelbarrow. The commission denied compensation on the ground that there is no substantial evidence that claimant’s disability was due to an injury received in the course of his employment. The claimant appealed to the circuit court and there the court allowed compensation for total disability for a period of eight weeks but disallowed the claim for 5 per cent partial permanent disability. The claimant has appealed to this court from the order of the circuit court disallowing the claim for 5 per cent partial permanent disability to his leg, and the employer has cross-appealed from the action of the court in allowing compensation for eight weeks total disability.

We have examined the record carefully and it is our conclusion that there is substantial evidence to support the commission’s finding that employee’s disability was not the result of an accidental injury received in the course of his employment. The evidence is substantial to sustain the finding by the commission that on the day in question the appellee, a man 38 years of age, accustomed to doing hard work, was pushing a wheelbarrow when suddenly he felt a pain in one of his legs; that upon examination it was found that the leg was swollen; he was immediately taken to a doctor, and there was a diagnosis of “hemorrhage into calf of left leg” — ‘ ‘ no history of accident obtained. ’ ’ About a month later the employee went to another doctor and there was a diagnosis of “rupture of deep blood vessels of the calf of the leg.” The doctor stated: “At the present time there seems to be no vascular impairment in the extremity. I would anticipate with the passing of time that the patient will make a recovery from this injury. I do not anticipate that he will have a significant degree of permanent partial disability. I do not feel that his disability will be in excess of 5 per cent as related to the left leg below the knee.” There is no showing that the doctor ever saw the employee again, and on the date of the hearing the employee was working again for a construction company, earning $1.40 per hour, whereas on the date of the alleged accident he was working for a construction company and earning only $1.00 per hour.

The evidence is substantial to the effect that the employee received no electrical shock whatever, and there is no evidence that he was otherwise acidentally injured. He was merely pushing a wheelbarrow loaded in the usual and customary manner, when suddenly he felt a pain in his leg. It appears that this condition of his leg was caused by a ruptured blood vessel or an ‘‘avulsion of muscle fibers in the calf group.” There is no evidence whatever that this condition was caused by the work the claimant was doing at the time. There is no evidence as to what causes a rupture of blood vessels in the leg or the avulsion of muscles. We have many times held that if there is any substantial evidence to support the finding of the commission it must be affirmed on appeal.

Affirmed on appeal; reversed on cross-appeal.


author: Carleton Harris, Chief Justice.

text:
    Johnson v. Hall, Secy, of State.
    5-1732
    316 S. W. 2d 194
    Opinion delivered September 29, 1958.

      Joe G. Barrett, J. Glib Barton, Pat Mehaffy, Ned A. Stewart, Edward L. Westbrook, Edward L. Wright, for plaintiff.

      Bruce Bennett, Attorney General, for defendant; Pope, Pratt & Shamburger, by Walter L. Pope, of counsel for defendant.
   Carleton Harris, Chief Justice.

This is an original action questioning the sufficiency of the ballot title of proposed constitutional amendment No. 51, which bears the popular name, “Trainmen Crew Amendment.” The ballot title for the proposed amendment, and which is under attack, is as follows: “An Amendment Prohibiting Operation of Trains with Unsafe and Inadequate Crews.” Plaintiff contends that the ballot title is defective for the following reasons:

I.

The ballot title of the petition is defective and insufficient in that it does not convey a complete and intelligent idea of the scope and import of the proposed amendment.

II.

The ballot title is misleading in that it conveys a false idea as to the meaning and effect of the proposed amendment.

III.

Tbe ballot title omits the true nature and effect of the proposed amendment and contains partisan coloring.

' The purpose of this amendment is to write into the constitution, provisions substantially similar to Act 116 of the General Assembly of 1907, Act 298 of the General Assembly of 1909, and Act 67 of the General Assembly of 1913. These acts have been generally labeled the “Full Crew Laws.”

This Court has had occasion, in several instances, to lay down rules governing the sufficiency of a ballot title. One such case is that of Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356. There, the Court, quoting from a Massachusetts case, said that “ * * * the ballot title should be complete enough to convey an intelligible idea, and scope and import, of the proposed law, and that it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and that it must contain no partisan coloring. * * *” Inasmuch as the instant proposed ballot title obviously fails to meet the last requirement (that it must contain no partisan coloring), we deem it unnecessary to enter into a discussion of the sufficiency of the proposed title in other respects.

Let us remember that the voter, getting ready to east his ballot in the polling booth, will see only the popular name, and the title of the proposed amendment. Neither the body of the amendment, nor any of its provisions, appear on the ballot. The popular name herein used, “Trainmen Crew Amendment,” would appear to have no effect upon the voter’s thinking, one way or the other, and certainly it conveys no information as to what the proposal contains. Accordingly, the voter who has not previously read the proposed amendment will derive all of his information from the ballot title, “An Amendment Prohibiting Operation of Trains with Unsafe and Inadequate Crews.” We think it can safely be said that all citizens are against the operation of trains that do not carry sufficient crews to reasonably assure safety. We cannot conceive that anyone would vote the contrary of this proposition, vis, to permit the operation of trains with unsafe and inadequate crews. The amendment itself seeks to declare that to operate trains with inadequate crews, (meaning, of course, a crew less than that provided in the act), “is detrimental to the safety and welfare of the people. * * * ” But there has been no prior determination that this assertion is always true. Actually, this is a fact question, depending upon the circumstances in each case. Such reasoning is in the nature of “begging the question,” which is defined as “founding a conclusion on a basis that needs to be proved as much as the conclusion itself.” Here, the voter is urged to support a measure which provides for a particular crew in the operation of trains, because to operate with a smaller crew is, according to the ballot title, “unsafe and inadequate” — but the “unsafe and inadequate” remains to be proved. As was stated in Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470, “In studying his ballot, the voter is not bound by the rule of caveat emptor. He is entitled to form Ms own conclusions, not to have them presented to him ready-made.”

As previously stated, other alleged deficiencies in the proposed' title need not be discussed, since this title so obviously contains strong partisan coloring, and consequently, fails to meet the test of sufficiency heretofore established by this Court.

Accordingly, plaintiff’s petition for injunction is granted.

       The proposed act provides as follows:
      Section 1. The practice of operating high speed diesel trains and locomotives over the railroads in this state with inadequate crews creates undue hazards, jeopardizing and imperiling life and property, and is detrimental to the safety and welfare of the people and contrary to the public policy of this state.
      Section 2. Any railroad company, officer of court, or any other person or corporation owning or operating any railroad line or lines in this state, whose line or lines are more than one hundred miles in length, engaged in the hauling of passengers, shall equip any of its said passenger trains consisting of two or more ears or more with a crew consisting of not less than an engineer, a fireman, a conductor, a porter, and a flagman or brakeman.
      Section 3. Any railroad company, officer of court, or any other person or corporation owning or operating any railroad line or lines in this state, whose line or lines are more than one hundred miles in length, engaged in the hauling of freight, shall equip any of its said freight trains consisting of twenty or more with a crew consisting of not less than an engineer, a fireman, a conductor, a flagman, and two brakemen.
      Section 4. Any railroad company or corporation owning or operating any railroad line or lines in this state, whose line or lines are more than one hundred miles in length, where switching, pushing or transferring of cars are made across public crossings within this state shall operate their switch crews with not less than an engineer, a fireman, a foreman and three helpers, regardless of any modern safety device.

       There are some differences in the proposed amendment and the provisions of these acts. For instance, Act 298 of 1909, dealing with passenger trains, provides that the act shall apply to all trains with as many as three cars. The proposed amendment, as will be noted in Footnote 1, changes this to trains consisting of two or more cars. Act 116 of 1907, dealing with freight trains, provides for a crew consisting of an engineer, fireman, conductor, and three brakemen. The proposed amendment provides for an engineer, fireman, conductor, a flagman, and two brakemen. Act 116 applies to all railroad companies whose lines are more than fifty miles in length in this state, and where the train shall consist of as many as twenty-five cars. The proposed amendment applies to railroads who operate lines in this state of more than one hundred miles, and where such trains consist of as many as twenty cars.


author: J. Seaborn Holt, Associate Justice.

text:
    Johnson v. Hall, Secy, of State.
    5-1733
    316 S. W. 2d 197
    Opinion delivered September 29, 1958.

      Joe C. Barrett, J. Glib Barton, Pat Mehaffy, Ned A. Stewart, Edward L. Westbroohe, Edward L. Wright, for plaintiffs.

      Bruce Bennett, Atty. General, for defendant; Pope, Pratt & Shamburger, by Richard L. Pratt, of counsel for defendant.
   J. Seaborn Holt, Associate Justice.

This is an original action brought by plaintiffs (railroads) seeking to enjoin defendant, C. G. Hall, Secretary of State, from certifying proposed Constitutional Amendment No. 52 and its popular name and ballot title to the State Board of Election Commissioners for the purpose of having it on the official ballot at the next general election. Plaintiffs earnestly contend that: “The ballot title of the petition is defective and insufficient in that it does not convey a complete and intelligent idea of the scope and import of the proposed amendment and is misleading in that it conveys a false idea as to the meaning and effect of the proposed amendment.” We have concluded that this contention must be sustained.

The proposed popular name ballot title and amendment in question are as follows: “Proposed Constitutional Amendment No. 52 (By Petition) Safety Crossing Amendment — An amendment to require adequate safety devices at all public railroad crossings. Section 1. The practice of operating trains and locomotives over railroads in this state across highways, public roads, crossings and city streets at high rates of speed without adequate protection to the vehicular and pedestrian traffic at such crossings is detrimental to the safety and welfare of the people and contrary to the public policy of this state. Section 2. Every railroad company in this state whose line or lines are more than one hundred miles in length who operate trains in excess of twenty-five miles per hour over said lines shall install and maintain at each public road crossing or street electrically controlled warning signals which flash red for an approaching train and shall provide and maintain electrically controlled boards or gates on each side of such roads, crossings or streets as a further protection. Section 3. Failure to provide or maintain such warning-signals or electrically controlled boards or gates shall create an inference and presumption of civil negligence to any such railroad company in any civil action for damages to persons or property against such company arising out of accidents at such public roads, crossings or streets. Filed: July 3, 1958 C. G. ‘Crip’ Hall, Secretary of State.”

Our governing- rules on the sufficiency of ballot titles have many times been announced and reaffirmed by this court. In one of our leading- cases — Newton v. Hall, 196 Ark. 929, 120 S. W. 2d 364 — we reannounced the test of the sufficiency of a ballot title in this language: “. . . it should be complete enough to carry an intelligent idea of the scope and import of the proposed law, and that it should be free from misleading tendency, whether of amplification or omission or of fallacy, and must contain no partisan coloring. This test has never been departed from in the subsequent cases, . . .’’In the more recent case of Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470, we reaffirmed the above rule and there said: . . it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331. We have recognized the impossibility of preparing a ballot title that would suit every one. Hogan v. Hall, 198 Ark. 681, 130 S. W. 2d 716. Yet, on the other hand, the ballot title must be free from ‘any misleading tendency, whether of amplification, of omission, or of fallacy,’ and it must not be tinged with partisan coloring. ’ ’ When an elector comes to vote he is entitled to be confronted with a ballot title complete enough to convey to him “an intelligible idea of the scope and import of the proposed law”, or amendment. The ballot title must be free, as indicated, from any misleading tendency whether of amplification, omission, or of fallacy, and it must not be tinged with partisan coloring.

The ballot title here — AN AMENDMENT TO REQUIRE ADEQUATE SAFETY DEVICES AT ALL PUBLIC RAILROAD CROSSINGS, — obviously, we think, would convey to the voter, or carry the presumption to him, that at present the railroads were not using adequate safety devices at all public crossings and that our present statutes do not provide adequate protection for the highway traveler. Certainly all good citizens would vote for adequate protection at public crossings. There is nothing in this ballot title that tells the voter that this amendment would require all railroads in Arkansas to install and maintain at each public crossing or street electrically controlled warning signals, and in addition electrically controlled boards or gates on each side of each of the public railroad crossings, without any regard to the distance that said crossing might be from a source of electric power, and that such a requirement would place an additional burden of heavy-expense on the railroads of millions of dollars to install and maintain such devices, at an estimated 3,600 public railroad crossings in Arkansas, whether the daily traffic count over such crossings amounted to a dozen vehicles or thousands.

Clearly, we think, this ballot title, under the test above indicated, fails to convey to the voter an intelligible idea of the scope and effect of the proposed amendment. We, therefore, hold that it is defective and insufficient. Accordingly, plaintiffs’ petition for injunctive relief is granted.

McFaddin and Millwee, JJ., dissent.