author: George Rose Smith, J. Jim Johnson, Associate Justice,

text:
    Ark. Power & Light Co. v. Scroggins.
    5-1820
    328 S. W. 2d 97
    Opinion Delivered October 5, 1959.
    [Rehearing denied November 9, 1959]

      Gordon id> Gordon and House, Holmes, Butler & Jewell, for appellant.

      Williams <& Gardner, for appellee.
   George Rose Smith, J.

Doyle Scroggins filed a claim for disability benefits under tbe workmen’s compensation law. Tbe commission denied tbe claim upon a finding that Scroggins’ disability was not tbe result of an accidental injury arising out of and in tbe course of bis employment. Scroggins died on February 25,1957, which was after tbe proof bad been completed, and bis widow took an appeal from tbe commission’s decision. Tbe circuit court reversed tbe decision on tbe ground that there is no substantial evidence to support the denial of an award, and that is tbe only issue on this appeal.

There is really very little dispute about tbe facts. Scroggins bad worked for tbe appellant for about ten years as a general bandy man and helper, doing various odd jobs of a physical nature. On tbe night of November 9, 1955, Scroggins, while sitting in a Morrilton pool ball, suffered what was later known to have been a heart attack. By stopping to rest on the way Scroggins was able to walk home, where his wife called a doctor. Dr. Mobley diagnosed the condition as indigestion and treated it accordingly. On the witness stand Dr. Mobley frankly admitted that he had been mistaken and that Scroggins had suffered a coronary infarct.

The attack in the pool hall occurred on a Wednesday night. Scroggins did not go to work during the rest of the week, but by Sunday he felt better, and he returned to his job on Monday, November 14. He was put to work pulling up grass with his hands, but he found that the work caused pain in his chest. He had to rest twice during the morning and perhaps several times during the afternoon. Both he and his fellow worker, Clarence Puller, testified that Scroggins worked some during the afternoon, but not much. The referee stated that ‘ ‘ there was no evidence and no tender of evidence that the claimant collapsed on the job,” and that view is amply supported by the record unless the word collapse is to be given a definition quite different from its real meaning.

That night, November 14, Scroggins continued to have pain, which he described as ‘ ‘ absolutely the same ’ ’ and in the same place as that suffered the preceding Wednesday. Dr. Mobley was out of town, and his associate, Dr. Hyder, was called. In the course of Dr. Hyder’s examination the existence of heart disease was suspected for the first time. This diagnosis was definitely confirmed by an electrocardiogram the next day, and Scroggins was at once put in a hospital for two weeks of complete bed rest. He was then allowed to be up and about, but he was not permitted to return to work and was cautioned against strenuous exertion. The appellant paid Scroggins his regular salary as long as the doctors had any hope that he might recover and be able to resume his job; but finally, in July of 1956, Dr. Warden informed the appellant that Scroggins would not be able to return to his arduous duties. Scroggins’ employment was then terminated, and the present claim for disability was filed a month or so later. Although Scroggins died while the case was pending this appeal relates only to the claim for disability and does not involve death benefits.

In reversing the commission the circuit judge relied upon the rule adopted in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436. There we held that an injury may be accidental even though it results from the performance of the employee’s ordinary duties, without any unusual exertion or strain. But, in pointing out that there still must be a causal relation between the work and the injury, we went on to say: “... 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.” (Italics added.)

The decisive question is whether there is any substantial evidence to support the commission’s view that Scroggins’ work did not cause or contribute to his disability. Unless the undisputed proof, viewed in the light most favorable to the commission’s findings, establishes a causal connection between the work and the injury we must uphold the commission’s action.

It is shown by practically uneontradicted testimony that Scroggins’ employment did not cause the original heart attack of November 9. Dr. Hyder testified that a coronary infarct does not come about abruptly; it results from disease and develops over a period of time. “There is some pathology there prior to the time they have that attack.” During weeks, months, or years a series of events takes place within the heart and ultimately results in a coronary occlusion or infarction. Dr. Hardeman expressed a similar opinion, referring to the claimant’s heart condition as a disease process rather than as the consequence of an injury. It is shown that the eventual attack may occur at any time, even while the person is at rest or asleep. Here Scroggins ’ seizure occurred while he was sitting quietly in a poolroom, watching others play dominoes.

In the absence of proof that Scroggins’ work brought about the first attack the claim must rest solely upon the theory that Scroggins’ attempts to pull grass on Monday, November 14, either caused a disability that would not otherwise have existed or contributed to a disability by hastening its onset or heightening its severity. We are of the opinion that this contention presents a disputed question of fact, upon which the commission’s findings are final.

The commission was justified in believing that when this employee went to his job on the Monday in question he was already suffering from a disease that had developed during a long period of time, and his heart had already been damaged by the occlusion five days earlier. No witness, either medical or. lay, undertakes to say that any lasting ill effects results from this workman’s physical efforts that Monday — efforts that he repeatedly discontinued when the chest pain became severe. If an inference of permanent harm can be drawn from the testimony, there is in this record no obstacle preventing the commission from reaching the opposite conclusion, that the consequences of Scroggins’ exertions that day were temporary and did not in the long run make his condition any worse than it already was.

It is not clear from the evidence whether Scroggins suffered a second and independent heart attack in his home on the night of November 14 or merely suffered pain which was, as the commission found, a continuation of the original attack of November 9. If every doubt in this respect is resolved in favor of the claimant the most that can be said is that Scroggins ’ work that day caused him to suffer that night an attack that was certainly no worse than the first seizure. Granted these facts, there is still a burden on the claimant to prove that the second attack was, as we said in the Bryant case, supra, either the sole cause of the disability or a contributing cause of it. It is on this point that the appellee’s attempt to overturn the findings of the commission must fail. The record falls decidedly short of demonstrating by undisputed proof that the claimant’s inability to work was caused or contributed to by his attempts to work on November 14. To the contrary, Dr. Hardeman’s positive statement affirmatively supports the commission’s decision: “It is my opinion, from what I know of the revealed details of this case, that the condition was due to disease and not to injury, neither directly nor by aggravation. ’ ’

Our sympathies are naturally with the workman and his dependents, but this does not justify our imposing liability upon the employer in a case of this kind. The commission viewed this claim as that of a diseased employee whose efforts to remain at his job, though unsuccessful, had no substantial adverse effect upon a pre-existing disability having no connection with his employment. If compensation must be awarded in this case-the same result would necessarily follow whenever a-workman afflicted with heart disease, arthritis, asthma,, epilepsy, or any other malady found that his attempts to stay at his job caused a recurrence of his symptoms, even though his condition thereby became no worse than before. Argument is not needed to show that the situation we have just described does not satisfy the statutory requirement of an accidental injury arising in the course-of the employment.

Reversed.

MoFaddin, Ward, and Johnson, JJ., dissent.

Jim Johnson, Associate Justice,

dissenting.

We of the minority greatly fear that the majority opinion in this case will be considered by the legal profession to be a turning away from the wise and salutary •ruling adopted by this court in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436. This opinion by Mr. Justice Millwee is a landmark opinion in workmen’s compensation cases. It has been consistently followed by this Court and emphasized in many cases, particularly in the case of Bettendorf & Co. v. Kelly, 229 Ark. 672, 317 S. W. 2d 708.

The learned Circuit Judge in the case at bar was thoroughly familiar with the Bryant Stave Company case as is shown by his masterful opinion which reflects that he carefully studied the transcript in the instant case and wrote an opinion which states exactly how we of the minority feel. The Circuit Judge’s opinion is long but it is thorough, complete and as we see it unanswerable. We give it below and adopt it as our dissenting-opinion in the case at bar.

“Doyle Scroggin, as an employee of the respondent, Arkansas Power & Light Company, filed a claim for disability benefits, allegedly due as the result • of an accidental injury sustained during- the course of his employment on November 14, 1955, allegedly totally disabling him within the provisions of the Workmen’s Compensation Act. Upon a hearing- had before the Eeferee, an opinion was filed subsequently on February 11, 1957, finding- and holding that the alleged disability of Claimant, was not the result of accidental injury. Appeal from such finding was had to the Full Commission, and on June 14, 1957, the findings of the Eeferee was sustained and confirmed by an Opinion of such date. From such findings and Opinion, Mrs. Emma Louise Scrog-gins, widow of Doyle Scroggins, who died on February 25, 1957, during the pending- of the proceedings, appealed from the Opinion rendered June 14, 1957, denying- the claim, to the Circuit Court of Conway County, Arkansas.

“A careful examination and reading of the record of the evidence and exhibits, reflects that Doyle Scrog-gins had been regularly employed as a “helper” during the last past ten years preceding his death and disability. His employment involved rendering assistance to the linemen as well as that of a general laborer. He was not a-lineman, did not as a rule, climb poles. His general work included any ground job, such as digging holes, working on concrete ground installation, pulling-grass and similar work as directed by his superiors.

“On November 14, 1955, Scroggins was engaged in work preparatory to the pouring of concrete at a substation. As a part of his duties he was directed to pull grass from an area and section of the sub-station, where it was intended to pour concrete. The only way the grass conld be removed was by direct pulling, rather than by cutting with a hoe. About 9:00 a.m. on such date, Scrog-gins became ill. Complained of pain in chest. Stopped work for a short interval and with Puller, purchased a ‘coke’. Bested and pain left him. Continued, to work on but pain hit him a third time. Went to lunch and returned to work about 1:30 or 2:00 o’clock p.m. Pain returned in chest area. He drank a 7-Up, thinking he had indigestion.

“On the night of November 14, 1955, the pain continuing, Mr. Scroggins attempted to contact Dr. H. E. Mobley. Dr. Mobley not being available, Dr. H. E. Hyder of the medical firm, answered the call and upon examination diagnosed the condition as occurring from a heart attack. On November 15,1955, Mr. Scroggins went to the Mobley Clinic and his condition diagnosed as the result of a heart attack. At the direction of the Bespondent and within a short time, Scroggins went to Little Bock where he was examined by Dr. Daniel B. Hardeman and also by Dr. J. B. Warden at different intervals. Prom the examinations and electrocardiograms it was the opinion of the examining physicians that Mr. Scroggins was suffering from a myocardial infarction which for the time being would wholly incapacitate him from his former work.

“Preceding the attack of November 14, 1955, and on the night of November 9, 1955, Mr. Scroggins became ill with what he thought was an attack of indigestion. Dr. Mobley was called and treated him for what was thought an attack of indigestion. Later, and after the attack of November 14, 1955, Dr. Mobley testified that he was mistaken as to the first diagnosis of indigestion as of November 9th, and that the attack at that date, was in fact a heart attack. Mr. Scroggins laid off work from the 10th of November to the 14th of November 1955, when he sustained the second heart attack.

“Since the claim for disability benefits was predicated upon a disabling heart attack occurring at a time when Mr. Scroggins was engaged in the course of his employment, the pertinent and material parts of the evidence are referred to in brief as follows:

“Tr. of Testimony, P. 25.
“ ‘Q. Doyle, the work you did on the 14th of November, how did it compare with the physical exertion necessary to do your normal duties?’
“ ‘A. ... the only difference in it you were stooping over in this particular spot jerking out the Bermuda grass, like jerking out eye teeth, by jacks, and I hadn’t ordinarily been doing that . . . and the barbed wire pulling, you put your foot, on the pole and stretch every gut in your body, and stretching that wire. ’
“ ‘Q. Did you stretch any wire that morning?’
“ ‘A. No, not that day.’ ”
“Tr. of Testimony, P. 27.
“ ‘Q. If it came to a job of pulling grass — that was your job?’
“ ‘A. Normally, yes.’ ”

“At pages 8 and 9 of the Transcript of Testimony, Doyle Scroggins described the nature and character of the work he was performing on the morning of November 14th. That in the area where the transformers were set, grass had grown which could not be mown. That it was necessary that he reach down and pull up the grass. That he got sick, his chest was killing him and that he so advised Fuller, who was working with him.

“Clarence Fuller, Tr. of Test. p. 59, described the type of work being performed by Doyle Scroggins and confirmed Scroggins’ statement as to pulling of grass. That Doyle complained of being sick, even more in the afternoon. Tr. or Test. p. 60, That in the afternoon Scrog-gins didn’t work much.

“Elmer Kyle testified as to the attack, or illness of November 9, 1955. That pulling grass was a part of the general duties of a helper such as Scroggins was.

“Tr. of Test. p. 93, Arthur Riggs testified that he worked with Scroggins on November 9, collecting and reading meters. No particular strain as to type of work done that day.

‘ ‘ Prom the evidence, there apparently was some conflict as to who Scroggins was actually working with on November 9th, which the Court feels is not particularly material. As the Court views the apparent discrepancy, all the witnesses testified to the best of their memory and truthfully.

“At page 58 of the Transcript of Testimony, Dr. Mobley testified:

“ ‘Doyle had a coronary attack and what the specific cause was I do not know. ’ ’ ’
“At page 53 of the Transcript of Testimony he was asked:
“ ‘ Q. Will you — does — is that type of an attack that develops suddenly?’ ”
“ ‘A. Yes, sir.’ ”
“At page 53 of the Tr. of Test., Dr. Mobley described in detail an infarction and at page 56 stated:
“ ‘Once they have a damaged heart, then the conservative method of living and protecting that heart is essential if that individual wants to go on and live a normal life.’ ”
“Dr. H. E. Hyder testified, page 75, Tr. of Test.
“ ‘Well, from my knowledge of medicine these things just don’t happen abruptly. They have been developing over a period of time.’ ”
“Then Dr. Hyder was asked this question:
“ ‘Q. Well, I didn’t ask you if it caused it, would it (work) have contributed to the bringing about of this attack, maybe earlier than it would otherwise have occurred?’ ”
“ ‘A. If there was any undue exertion it could have; an awkward position, straining, pulling.’ ”
“At page 77 in the Tr. of Test, on cross-examination Dr. Hyder was asked:
“ ‘Q. Now Doyle was pulling grass that morning, but if he had been digging a hole, the exertion of digging a hole might have been just as much a contributing factor if there was such a thing, to this infarct, could it not?”
“ ‘A. Yes, sir.’ ”
“Page 77 continued:
“ ‘Q. Or any other ordinary duties?’ ”
“ ‘A. That’s right.’ ”
“ ‘Q. So, actually, the condition is there, Doctor, and it could have possibly occurred under any set of circumstances, anytime, night or day, with that pathology?’
“ ‘A. It could have.’ ”

“At page 101 of the Transcript of Testimony, George Price, Local Manager of Arkansas Power & Light Company testified that Scroggins was classified as helper. He described the duties of a helper as follows:

“ ‘. . . The helper assists the journeymen servicemen. He is also called on to read meters, to collect, to mow the grass at the sub-stations, to clean up around the pole yards, to help build any kind of forms or to paint or do any type of tasks that are required in our office . . . they are to keep the grass cut and keep it clean around the platforms . . . they either use a cutter blade or a hoe or pull it up (grass) by hand . . .’ ”
“ ‘Q. Was there anything unusual that day in the nature of his duties?’ ”
“ 'A. No, sir.’ ”

“In Exhibit designated ‘Rx 9’ Page 127 of the Transcript of Testimony, same being a letter by way of medical report dated December 4, 1956, addressed to Mr. Thos. C. Trimble, by Dr. Daniel R. Hardeman, among other things is the statement:

“ ‘It is my opinion, from what I know of the revealed details of this ease, that the condition was due to disease and not to injury, neither directly or by aggravation.’ ”

“Also,

“ ‘It is further my opinion that this man’s case points to a building up of coronary disease in his past history of digestive upsets which in the light of events I believe were of coronary and no digestive origin.’ ”

“Dr. Hardeman continued to discuss the case history of Mr. Scroggins, the type of work followed, referring to the origin and progress of the heart disease and condition, the purport of which was to the effect that the work performed did not of itself initiate or cause the heart condition.

“Dr. J. R. Warden, in Exhibit CX 2, confirms the diagnosis and opinions voiced by Dr. Hardeman as to the nature and extent of the heart damage and condition of Doyle Scroggins. He stated in his letter addressed to the Personnel Division, Arkansas Power & Light Company, that while he did not repeat the case history as outlined by Dr. Hardeman, the same facts were revealed and given in his office.

“The overall substance of the evidence is to the effect that Doyle Scroggins undoubtedly, over a considerable period of time had suffered and experienced light heart attacks, attributable at the time to indigestion, erroneously. That the coronary disease condition, was for a long period of time building up and ultimately resulted in the disabling attack on November 14, 1955.

“In compensation cases, the burden is upon the claimant to show that injuries or disabilities were the result of an accident that not only arose out of and in the course of employment but that also grew out of or resulted from the employment and that there was some causal connection between the work followed and the accident or disability. American Cas. Co. v. Jones, 224 Ark. 731, 276 S. W. 2d 41; Farmer v. L. H. Knight Co., 220 Ark. 333, 248 S. W. 2d 111; Pearson v. Faulkner Radio Serv. Co., 220 Ark. 368, 247 S. W. 2d 964.

“Under § 81-1302, Ark. Stats., injury is defined: ‘(d) Injury means only accidental injury arising out of and in the course of employment, including occupational infections arising out of and in the course of employment.’ ”

“Upon an appeal from an order or award of the Commission, the Circuit Court shall review among other things:

“3. That the facts found by the Commission do not support the order or award.

“4. That there was not sufficient competent evidence in the record to warrant the making of the order or award.

“The claimant, Doyle Scroggins, filed his claim for disability benefits originally, predicated upon the grounds that he had sustained an accidental injury arising out of and in the course of employment. Whether or not the heart attack and its disabling effect grew out of the course of his employment and whether or not, from the evidence, there was a causal connection between the accident and injury; two requirements must be met. There must be shown to have been an accident to Doyle Scroggins and a causal connection between the accident and injury.

“The decisions of the Supreme Court have many times held that strain or over-exertion due to physical condition predisposing employee to injury, is an ‘injury’ within the meaning of the Compensation Act. Herron Lumber Co. v. Neal, 205 Ark. 1093, 172 S. W. 2d 252; Tri-States Const. Co. v. Worthen, 224 Ark. 418, 274 S. W. 2d 352; McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S. W. 2d 210.

“However, the proof must show a causal connection between the employment and injury in general. The Workmen’s Compensation Act does not call for general accident insurance but its purpose is to compensate only for losses resulting from risk to which the fact of engaging in industry exposes the employee. Birchett v. Tuf-Nut Co., 205 Ark. 483, 169 S. W. 2d 573; Barrentine v. Dierks Lumber Co., 207 Ark. 527, 181 S. W. 2d 435; Simmons Natl. Bank v. Brown, 210 Ark. 311, 195 S. W. 2d 539.

“There is no serious dispute or conflict in the evidence. The pathology of the case history shows that Doyle Scroggins on the night of November 9, 1955, suffered a coronary infarction. Dr. Mobley frankly stated in his testimony that he had on this night erroneously diagnosed the illness as indigestion and that it was in fact a heart attack. Doyle Scroggins, had apparently no actual knowledge between November 9th, and November 14, 1955, when he resumed work, that he had actually suffered a heart attack.

“Formerly, under the decisions of the Supreme Court, to warrant an award for compensable benefits, based upon an injury occurring during the course of employment, it was required that not only must the proof show causal connection between the accident and the injury, but that as to the accident, same must have been the result or the contributing result of over-exertion, strain or some occurrence of a physical nature, such as a mishap, which was not foreseeable, unanticipated and unexpected, nor occurring in the performance of the duties of the employment in a normal manner. Herron Lumber Co. v. Neal, 205 Ark. 1093, 172 S. W. 2d 252; Mc-Gregor & Pickett v. Arrington, 206 Ark. 921, 175 S. W. 2d 210; Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961.

“In the case of Triebesch v. Athletic Mining & Smelting Co., 218 Ark. 379, 237 S. W. 2d 26, the Court quoted with approval the law as declared in Clover, Clayton & Co. v. Hughes (1910) A. C. 242:

“ ‘An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or condition of health . . .’ ”

“And the Court said further in this case quoting from Sturgis Brothers v. Mays, 208 Ark. 1017, 188 S. W. 2d 629 :

“ ‘Nor is it a defense that the workman had some predisposing physical weakness but for which he would not have broken down. If the employment was the cause of the collapse, in the sense that but for the work he was doing it would not have occurred when it did, the injury arises out of the employment.’ ”

“Following the interpretation of an “accident” as related to the work performed, the appellate court in the case of Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436, reiterated the definition of an “accidental” injury as discussed in the Triebesch case, supra. At page 150 in the Bryant Stave Co. case, the court in part said: *. . . There is no statutory requirement that the cause of the injury itself must also have been an accident. What the statute says is that the injury itself must have been accidental, that is, unforeseen and unexpected. When the two sections are read together, it is apparent that “accidental injury” means every injury to an employee arising out of and in the course of his employment except those injuries caused by his intoxication or by his willful intention to bring about the injury or death of himself or another.’ ”

“At page 150 of the opinion:

“ ‘A very substantial majority of the courts of this country adopted and followed the English rule and hold that an injury is accidental where either the cause or the result is unexpected or accidental, although the work being done is usual or ordinary.’ ”

“And at page 151 of the opinion:

“ ‘A clear majority of jurisdictions now hold that when the usual exertion leads to something actually breaking herniating, or letting go, with an obvious sudden mechanical or structural change in the body, the injury is accidental. ’ ’ ’

“At page 154 of the Opinion:

“ ‘We agree that litigants, lawyers and members of the Commission are entitled to a definite and unequivocal settlement of the legal question here posed.’ (The Court had previously cited and discussed prior holding involving increased work load, or unusual exertion.)
‘ ‘ In undertaking to do so, we see no valid reason for not aligning Arkansas with the decided weight of authority on the subject by adhering to our holding in Albertson v. Harding Glass Co., supra.”

“At page 155 of the Opinion:

“ ‘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, that an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.’ ”

“In the case of Clark v. Ottenheimer Bros. decided July 1, 1958, 229 Ark. 383, 314 S. W. 2d 497, the law as stated in the Bryant Stave Co. case, supra, was affirmed with approval, the Court again stating the law, p. 1040:

“ ‘It is our view that an accident may occur when there is no increase in the work load.’ ”

“Under the Clark case, supra, the requirements to be made by a claimant are as follows:

“ ‘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.’ ”

“With the benefits and declarations of law as regards ‘accidental injury’, as established in the Bryant Stave Co. and Clark v. Ottenheimer cases cited above, as a guide in determining whether or not, claimant, Doyle Scroggins, or his widow and children are entitled to compensable benefits, reference at this point should be directed as to the reasons and grounds set forth in the opinions filed by the Referee and Commission in denial of liability.

“In the Opinion rendered by Hon. L. D. Blair, Referee, dated January 11, 1957, the claim was denied. In the Conclusions of Law, as outlined in the opinion at page 6, the Referee, to sustain his denial of liability, stated in part:

“ ‘This claim is similar to others that have been before this Body and our Supreme Court and we cite a few of the cases that have been studied in reaching the decision now made in this claim, to-wit: (Citing cases.) ’ ’ ’

“ ‘We find that the Supreme Court has, by its decisions established certain definite guide posts which when applied to Section 2(d) of our Workmen’s Compensation Act, provide a test of whether or not there is evidence to support a finding that an injury was accidental and arising out of and in the course of employment . . . the medical evidence and testimony introduced in this claim show that this condition did exist prior to the onset of the heart attack on November 14,1955: (2) some effort was made on the part of the claimant to establish an increased work load and overtaxing work load effort to accomplish the work load . . . other witnesses . . . testified that the claimant was doing his normal work, and that there was no increased work load by reason of the work he was doing on that date . . . The testimony reflects that the claimant suffered the first symptoms of his heart attack in his own home in the evening or night of November 14, 1955. There is no evidence or tender of evidence that the claimant collapsed on the job and the claimant’s only testimony of a prior episode or experience was on November 9, 1955, when he suffered a similar experience . . .’

“ ‘Using further test as set down by the Supreme Court of Arkansas we consider test (3) the claimant offered no testimony on the question of adverse working-conditions . . . and as to the test (4) as set out by our Supreme Court, a collapsed worker on the job, the evidence clearly shows in this case, as pointed out above, that the claimant did not suffer his heart attack until the night of November 14, 1955, and that same was not diagnosed specifically as a coronary infarction until the following day when a cardiogram was done. ’ ’ ’

“In an opinion rendered by the Pull Commission, dated June 14, 1957, a denial of claimant’s claim was made. The Pull Commission adopted and approved the statement of the case as made by the Referee and adopted same as its own.

“The Pull Commission held that the disability of Doyle Scroggins beginning November 15, 1955, was not the result of an accidental injury arising out of and in the course of his employment. To sustain the findings of the Pull Commission, in the conclusions reached, it stated:

“Page 3:

“ • • Doyle Scroggins’ coronary infarction occurred on the night of No\ unber 9, 1955, while he was in a pool hall, several hours after he quit work . . . We find nothing in the record which would indicate to us that there was any increased work load or anything- that could reasonably be construed as an accidental injury.’ ”

“Page 4 continuing:

“ ‘In short, we believe that the overwhelming- preponderance of the evidence is to the effect that there was no causal connection between claimant’s employment and his infarction, or heart attack, on the night of November 9,1955. November 9,1955, was on Wednesday. Doyle Scroggins did not work on November 10th or 11th, which were work days, and November 12th and 13th were not work days. The medical evidence as to the effect that it takes several weeks or more to recover from a coronary infarction, if one recovers, so it, therefore, seems clear to ns that Doyle Scroggins had certainly not recovered from his infarction of November 9th when he returned to work for this employer on November 14,1955. Doyle Scroggins had continuing symptoms on November 14th, and that night after he had ceased his employment and had been away from work for several hours, he suffered another severe heart attack . . . ’ ”

“The Court has copied rather at length, the statement of the Pull Commission in its conclusions, of the interpretation placed on the testimony as tending to sustain its findings and denial of liability. The trial court, from a careful study of the evidence, cannot reconcile nor accept the construction of the Pull Commission placed thereon.

“Then too, the Referee and the Pull Commission, based its findings apparently upon the theory that claimant suffered no heart attack while in the actual performance of the course of his employment, and if he did suffer such an attack, same did not occur by reason of any increased work load, strain or over-exertion thereby overlooking the law as declared in the Bryant Stave Company and Clark v. Ottenheimer cases, supra.

“At page 20 of the Transcript of Testimony, Scrog-gins testified that on November 9, 1955, in the afternoon about 3:00 o’clock he had what he thought was a ‘little indigestion’. On the night of November 9th, he suffered the first severe heart attack as described by him. The symptoms, location of pain, etc., were subsequently diagnosed by the examining doctors as being a coronary heart infarction. While claimant laid off the next two work days following, as he testified, he had no knowledge, nor did his attending physician, that he had an existing heart condition. Otherwise, it would be natural to assume he would not have resumed his work on November 14th.

“At pag;e 9 of the Transcript of Testimony as to the November 14th attack, Scroggins testified as to the occurrence of the heart attack about 9:00 a.m. That he ‘grabbed his chest’ because of the pain, rested for a brief interval, went back to work ‘and it hit me again and I walked over and set doivn . . .’ That he got a soft drink thinking he would get relief from drinking it. Page 10 of the Transcript of Testimony, that he went back to work after lunch and ‘I was still cleaning up around there and it hit me . . . and I layed flat on my back on it and it occurred practically off and on all day and every time it would leave me I’d try to work and it would hit me and I’d have to quit.’ That his stomach didn’t bother him at the time, only his chest. The testimony just referred to is clear and unambiguous and undisputed and accepted by the doctors as factually true and constituting the basis and history justifying the diagnosis that Scrog-gins suffered a heart attack on both the 9th and 14th day of November. The court in its interpretation and construction of the evidence outlined above, is not trespassing upon the province of the Commission to pass upon the weight and credibility of the facts and the witnesses. In this case there is no serious conflict as to the factual situation and what actually occurred.

‘ ‘ Mr. Blair stressed the point, as he viewed the testimony, that respondent offered testimony to show ‘That nothing unusual or out of the ordinary was occurring on claimant’s last day of work.’ Tr. of Test. p. 6 of Conclusions of Law. But the record does not bear out such finding. And again quoting: ‘ Claimant suffered the first symptoms of his heart attack in his own home in the evening or night of November 14, 1955.’ And ‘There was no evidence and no tender of evidence that the claimant collapsed on the job . . .’ The Conclusions just referred to are not sustained by the evidence and to the contrary are in direct conflict with the undisputed testimony of Doyle Scroggins and Clarence Puller, his co-worker.

“In the Clark v. Ottenheimer Brothers case, supra, in the opinion rendered by Justice Ward, the record showed that Mrs. Clark, as an employee, had noticed her back hurting slightly for about two weeks before it became so severe she had to quit work. She had an operation and respondent denied liability upon her claim of compensable injury. Her injury occurred in the regular performance of her duties incident to her employment. On appeal the Conrt, in reviewing the Commission’s finding said, page 1039 of the opinion:

“ ‘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, and in doing so, we think it fell into error.’ ”

"Two questions are therefore to be resolved in light of the testimony and of the decisions of the Supreme Court above cited and referred to. Was there an accident and accidental injury arising out of the employment, and secondly, was there a causal connection between the ‘accident and the injury,’ quoting from the opinion in the Clark case, supra.

"Under the undisputed evidence, and under an apparent wrongful interpretation of the applicability of the law with reference to ‘accidental injury’, the trial court feels that the Commission as a matter of law, was not justified in finding and holding there was no accidental injury occurring during the course of the employment. In the Clark case, the Court stated that none of the four doctors treating claimant were 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.

“In the case now before the Court, the testimony, some by deposition and other by medical reports incident to examination of claimant by the examining doctors, tended to show that a heart attack could occur at any time and place without reference to work being performed, even if asleep. That the heart condition, culminating in the attacks on November 9th and November 14th, undoubtedly were of long origin and that the apparent digestive disturbances were undoubtedly heart attacks or symptoms of a heart condition. Dr. Mobley, page 53 of the Trans, of Test, testified:

‘ ‘ ‘ Once they have a damaged heart, then the conservative method of living and protecting that heart is essential if that individual wants to go on and live a normal life. ’ ’ ’
“Dr. H. E. Hyder testified in response to a question, Tr. of Test. p. 75: ‘Q. Well, I didn’t aslc you if it caused it, would it (work) have contributed to the bringing about of this attack, maybe earlier than it would otherwise have occurred?’ And he answered.: ‘A. If there was any undue exertion it could have; an awkward position, straining, pulling.’ ”
“At p. 77 of the Trans, of Test, on cross examination, Dr. Hyder was asked the following question:
“Q. Now Doyle was pulling grass that morning, but if he had been digging a hole, the exertion of digging a hole might have been just as much a contributing factor if there was such a thing, to this infarct, could it not?”
‘A. Yes, sir.’ ”

‘ ‘ In the testimony given by Doyle Scroggins as to the attack of November 14th, he stated that when he stopped his work he obtained relief from this chest pain. When he renewed the work, the pain in his chest reappeared. Whether or not he was digging a hole or performing any other normal labor requiring exertion, the work itself and exertion increased the chest pain, which unquestionably was hastened and quickened by the labor itself. Under the evidence as outlined and referred to, and not contradicted, the Court finds and holds that as a matter of law there was a causal connection between the work performed in the course of the employment of claimant, and the injury. Therefore, there was an accidental injury occurring in the course of the employment and also a causal connection between the accidental injury and the work performed. Dr. Mobley testified that to insure prolonged life, a person suffering as Doyle Scroggins was from a serious heart condition, could only survive provided he lived a quiet life. Dr. Hyder testified in effect that the work performed by claimant if it involved undue exer■tion, an awkward position, straining or pulling could have contributed to the attack occurring. Under the evidence and record in this case, Scroggins came within the interpretation of the Court in that in light of his physical condition, existing heart condition, without reference to the degree of exertion or the condition of his health, by the work performed he provided the exertion which was either the sole or contributing cause of the injury.

“As this court views and interprets the decisions bearing on the questions involved, it is not material as to the origin or cause of the heart condition suffered by Scroggins. The pertinent and relevant fact is that an impaired heart condition did exist and that a disabling accidental injury occurred as the sole result of the work performed, or else that the work performed was a contributing factor in the occurrence of the attack which proved to be disabling. Indulging in the field of probabilities and possibilities, as the doctors are so wont to do, the attack of November 14th might not have occurred had Scroggins had actual knowledge that the attack of November 9th was not of digestive origin. This latter statement is not made by way of criticism of course as to any prior erroneous diagnosis, but rather to stress the point that claimant in all good faith sought to renew his job on November 14th without enlightenment that such work could or might prove dangerous.

“As to the Commission’s determination of the merits of any given claim, the Workmen’s Compensation Law should be broadly and liberally construed and doubtful cases should be resolved in favor of claimant. Peerless Coal Co. v. Jones, 219 Ark. 181, 240 S. W. 2d 647. On appeal and review by the Circuit Court, the findings of the Commission are entitled to the same verity as that of a jury. In the legal conclusions reached by the Court, same is based as to whether or not from the record presented there is substantial evidence to warrant the findings of the Commission which is a question of law. The Court therefore has not assumed, nor is it permitted to pass upon the weight and credibility of witnesses or of the evidence except as to the presence or absence of substantial evidence to sustain the Commission’s denial of relief. J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82.

“Under letter dated May 4, 1957, or statement as it may be designated, signed by Dr. H. E. Mobley and introduced in the record without objection, same reflects that Doyle Scroggins had a coronary infarction November 9, 1955, for which he had been treated continuously. That he had been doing well but had not returned to work prior to his death. That on the night of February 25, 1957, he died in St. Anthony’s Hospital in Morrilton, Arkansas, from acute coronary infarction.

“From the record, exhibits and statement of Dr. Mobley, Doyle Scroggins was totally disabled from November 14, 1955, until the time of his death on February 25, 1957. At the time of the accidental injury, or total disabling heart attack, it is agreed that Doyle Scroggins was drawing the sum of $242.50 per month as wages, which would entitle him to the maximum benefits under the Compensation Act. It is to be noted, of course, that during the period of time in which evidence was being taken and the record completed as to the claim, that claimant was still alive. The Opinion of the Referee was filed February 11, 1957, about two weeks prior to the death of claimant, and the Opinion of the Full Commission filed June 14, 1957, after the death of claimant. Since there was the denial of an award by the Commission, no compensable benefits, death or otherwise were considered by the Commission. It is admitted in the record as factually true and correct that Doyle Scroggins did receive “full salary” or the sum of $242.50 per month from the time of his disability through the month of July 1956, at which time payment of wages was stopped by the Respondent.

“Inserted in the Conclusions of the Opinion filed by the Full Commission, dated June 14,1957, appears the statement as to the compensable benefits properly allowable in the event claimant is found entitled to recover:

“ ‘In our opinion there is no question but that respondent would be entitled to a credit for all that they paid Doyle Scroggins after November 14, 1955, to apply on any compensation found to be due Doyle Scroggins subsequent to the foregoing date, sucb opinion being based upon the Act, as well as the above referred to decision of our Supreme Court.’ ”

“The case referred to in tbe Opinion as furnishing the guide for computing compensable benefits where wages have been paid by the employer subsequent to the occurrence of the disability to the claimant is that of Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S. W. 2d 450. As the Commission calculated and summarized the compensable benefits, had an award been made, considering the wages paid claimant through July 1956, it was stated that considering the regular monthly wages paid Scroggins at $242.50 per month, from Nov. 14,1955, through July 1956, Scroggins had received approximately $1,819, making respondent entitled to a credit of about $890 for any compensation benefits due Scroggins, if entitled to recover. In other words, as the Commission restated the question, Scroggins had received and had been paid more by Respondent since November 14, 1955, than he would have been entitled to receive if he were found to have received a compensable injury entitling him to compensation from November 15,1955, to February 25,1957, at the maximum rate of $25 per week. At pages 4 and 5 of the Transcript of Testimony, Mr. Trimble, attorney for Respondent, stated that if in the alternative, if liability was upheld that Respondent would ‘like credit for the additional payments which were made if it should be shown there is liability.’ Counsel for claimant, Mr. Williams, responded: ‘There will be no controversy as far as that’s concerned.’ ”

“Under Paragraph (e), § 81-1323, it is provided that no compensation for disability of an injured employee shall be payable for any period beyond his death, but that after death, compensation for disability may be made after death of employee for the period of disability preceding death. Section 81-1310 covers compensation benefits, and maximum and minimum amounts, and under Par. (b) provision is made for compensation payable to tbe dependents for tbe death of an employee. Sec. 81-1315 provides for funeral expenses where death results from the injury.

“At page 4 of the Transcript of Testimony by statement from counsel for claimant, and without objection, the claim originally filed in the name of Doyle Scroggins was to be continued in the name of Mrs. Emma Louise Scroggins, as widow. Two children survived, Doylene Scroggins, a daughter 19 years of age, and a boy, David Scroggins, 12. Under the provisions of § 81-1315, dealing with compensation for death of an employee, as to family relationship, it is provided, subject to the limitations set out in § 10, (81-1310, Compensation Act) that the widow under Par. C, First, is entitled to thirty-five per centum of the compensation award, if there is no child, and under Second, in addition the compensation payable for one child, fifteen percentum, or a total of fifty percentum of the compensation payable. Under Par. (d) § 81-1315, Doylene Scroggins, daughter, having at the time of the taking of depositions, reached the age of 19 years, would not be entitled to compensatory benefits in the absence of proof otherwise warranting such an award.

“Under § 81-1310, Par. (b), it is provided in part:

“ ‘Compensation payable to the dependents of a deceased employee, as above provided, shall be, in addition to funeral allowance and those benefits which were paid or to which the injured employee was entitled in his lifetime.’ ”

‘ ‘ The Court has reviewed at length both the evidence as well as the exhibits and record before it, as well as the applicable law only with reference to whether or not there is substantial evidence to sustain the Order and Opinion rendered by the Full Commission.

“Since the present case, on appeal, is not tried de novo, and the court can only review questions of law and may modify, reverse, remand for rehearing, or set aside the Order, upon the four grounds, of any of the four grounds set forth in § 81-1325 (b), the judgment of the Court is as follows:

“It is considered, ordered and adjudged that the facts found by the Commission do not support the Order found and declared in the Opinion rendered June 14, 1957, and that there was not sufficient competent evidence in the record to warrant the making of the order denying compensation benefits.

“ It is further considered, ordered and adjudged, that said cause be remanded to the Workmen’s Compensation Commission with direction for rehearing, including the introduction of additional proof, if necessary, to determine the question of dependency of Mrs. Emma Louise Scroggins, widow of Doyle Scroggins, deceased, and that of the minor son, David Scroggins,, occasioned by the death of Doyle Scroggins. That the Workmen’s Compensation Commission, upon the remand, fix and determine the compensatory benefits due claimant, Mrs. Scroggins, and her minor son, David Scroggins, in accordance with statutory provisions, and for the allowance of funeral expenses and to fix and determine the attorneys’ fees properly allowable claimant’s attorneys.”

Justice Ed P. MoPaddin joins in this dissent.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Bond v. State.
    4949
    328 S. W. 2d 369
    Opinion Delivered October 5, 1959.
    [Rehearing denied November 23, 1959]

      J. B. Milham, for appellant.

      Bruce Bennett, Atty. General, By: Ancil Reed, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

An information was filed against Appellant Joe Bond wbicb charged Mm with “the crime of Grand Larceny in that he did take and carry away with the intent to deprive the true owner thereof, property of the value of more than $35.00.” Some four and one-half months later he was tried before a jury, found guilty, and his punishment fixed “at one year in the penitentiary.” From said conviction and judgment appellant has appealed to this court, urging several grounds for reversal.

Except for the specific grounds for reversal hereinafter discussed it is not insisted that there is any lack of evidence to sustain the conviction. In the case of Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400, we stated the rule for review of evidence in this court to he “It is a well-settled rule that the evidence admitted at the trial, or on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury it will be sustained. ’ ’ Measured by the above announced rule the testimony shows that the appellant entered a hunting lodge owned by T. L. Porter, situated near Winona Lake in Saline County, and took two guns, several knives and bed sheets; that after retaining possession of these articles for something like one month he traded one of the guns and pawned or sold the other one; that he confessed to taking said articles; that he took them with the intent to convert them to his own use and deprive the true owner thereof, and that the articles possessed a market value of more than $35.00 as required by statute. In his brief, appellant urges several distinct grounds for a reversal and we shall now discuss each of these grounds separately.

1. In the opening statement and during the trial it was attempted to give the jury a detailed history of appellant’s enlistment and service in the U. S. Navy, but was prevented from doing so by the trial court. From our review of the record we think the action of the trial court was proper. Not only was such testimony not pertinent or relevant, but we find much of this character of testimony was actually introduced and allowed to be considered by the jury.

2. "We do not agree with appellant that the court erred in permitting one Ed Dodson to testify as to the value of the two guns. Before so testifying, it was shown that Dodson was familiar with firearms and particularly with the kind involved in this case. He stated that he had owned a gun very similar to one of the guns involved here, he described in detail the condition of the gun and stated that he would give $40.00 for it and that the other gun was worth $10.00, although he was not at the time in the market for such guns. A somewhat similar question was considered by this court in the case of Bush, Receiver v. Altschul, 128 Ark. 103, 193 S. W. 280, where objection was made to a witness giving testimony relative to the value of certain cattle. In approving the testimony the court quoted with approval from Ruling Case Law “ ‘that a trader or dealer in stock, or a person who is qualified by experience, may give evidence as to the value of cattle, hogs, and other animals that have a market value, although he may never have seen them.’ ” It was pointed out that appellant disposed of the guns for a value much less than $35.00, but, of course, that fact would not be binding or controlling. The question of value of the property stolen was a question for the jury after consideration of all of the evidence.

3. Likewise it is insisted that the court erred in allowing Dodson to state that he had examined the rifles in one of the guns (called a “moose” gun) and to make the statement that the rifles were good. This was not error but further evidence of the condition of the gun and of the fact that Dodson was qualified to evaluate the guns.

4. It is next contended that the court erred in refusing to give Appellant’s Instructions Number Four and Number Five. These instructions would have told the jury that appellant would not be guilty of larceny unless he had the intent to steal them at the time of the taking. We cannot agree with this contention for the reason that the essence of these instructions was included in other instructions given by the court. In Instruction Number Two of the court it was stated that larceny embraces every theft which -unlawfully deprives another of his money or property with the intent to steal the same. In Instruction Number Four the court told the jury that appellant was presumed to be innocent of the charge of larceny and that said presumption begins at the commencement of the trial and follows him throughout the trial. In the case of Wallin v. State, 210 Ark. 616, 197 S. W. 2d 26, it was stated that “The trial court’s refusal to give a requested instruction, even if it was in proper form, is not error where the ground is covered by other instructions that are given.” It was for the jury to decide under all of the evidence, facts and circumstances in the case whether appellant intended to steal the articles in question here or whether he merely intended to use them for a while and then return them. In deciding the case the jury had a right to consider the fact that appellant did not return the said articles, that he kept them for some thirty days and then traded one of the guns and sold the other one.

5. It is complained here that the court refused to instruct the jury on the grounds of Petit Larceny. We do not here consider this ground for reversal for the reason that the record fails to show that any such instruction was requested or that the failure to give such instruction was brought forward in the motion for a new trial. Also, the record fails to show that an objection was made to any action of the court in this connection. In the case of Hicks v. State, 225 Ark. 916, 287 S. W. 2d 12, it was said: “On appeal from the circuit court, this court only reviews errors appearing in the record. The complaining party must first make an objection in the trial court, and this calls for a ruling on his objection. An exception must then be taken to an adverse ruling on the objection, which directs attention to and fastens the objection for a review on appeal.”

6. It is here insisted that it was reversible error for the court to overrule appellant’s demurrer to the Information. Again we do not consider this assignment of error for the reason that the record fails to show that the demurrer was ever presented to the court or that the court acted upon it. In the Hicks case, supra, in addition to what we have quoted above the court also said: “In the case at bar, the record does not show at what point appellant made his objection to the instruction; in any event, no ruling of the court was obtained on the objection and no exception was saved. Therefore, we cannot consider the objection on appeal.”

7. On the morning of the trial the appellant filed a motion for continuance and it is urged that the court committed reversible error in failing to grant the same. Again we cannot consider this assignment of error for the same reasons which are set out in the above paragraphs. Here again the record fails to show the motion was presented to the court or that it was acted upon by the court, and fails to show any objection made by appellant.

In view of what we have said above, the judgment of the trial court must be and is hereby affirmed.

Affirmed.


author:
Sam Robinson, Associate Justice.
      Ed. F. McFaddin, Associate Justice

text:
    Tinkle v. State.
    5-1891
    328 S. W. 2d 111
    Opinion Delivered October 5, 1959.
    [Rehearing denied November 9, 1959]

      W. L. Ward; Chiapella, Kirkpatrick, Rhodes <& Watson, Memphis, Tenn., and Taylor & Sudbury, for appellant.

      Bruce Bennett, Atty. General, and Bill J. Davis, Asst. Atty. General, for appellee.

      Terry Shell, amicus curiae.

   Sam Robinson, Associate Justice.

The issue here is whether the Governor has authority to remit a forfeited bail bond. Thomas Gordon Tinkle, Jr. was charged in the Criminal Division of the Chickasawba District of the Mississippi County Circuit Court with the crime of burglary and grand larceny. When the case was called for trial, Tinkle failed to appear, and the court ordered that the bail bond be forfeited. Later, the Governor issued a proclamation purporting to remit such bond forfeiture. Appellants then filed a motion in the circuit court to set aside the judgment in the sum of $5,000 rendered on the bond forfeiture, alleging that the forfeiture had been remitted by the Governor’s proclamation, which was made a part of the motion. The trial court overruled the motion to set aside the judgment, and the principal, Tinkle, and the bonding company, Carolina Casualty Company, have appealed.

The State contends, first, that the Governor does not have the authority to remit a forfeited bail bond; second, that if the Governor does have such authority, procedure required by statute was not followed; and therefore the proclamation is invalid.

Article 6, § 18 of the Constitution of the State of Arkansas provides: “In all criminal and penal cases, except in those of treason and impeachment, the Governor shall have power to grant reprieves, commutations of sentence and pardons after conviction; and to remit fines and forfeitures under such rules and regulations as shall he prescribed by law. ...”

Attorneys for the State argue that the procedure to force collection on the forfeited bail bond is a civil action and that, therefore, the whole proceeding arises out of a civil penalty or forfeiture, and that the Governor therefore can give no relief. Hutton v. McCleskey, 132 Ark. 391, 200 S. W. 1032, is cited as authority for that conclusion. But in that case the only issue was whether the Governor under the Constitution could remit a penalty imposed on all who failed to assess their property for taxes in the manner prescribed by statute. It was certainly not a “criminal or penal case.” The Hutton decision at most classifies forfeitures into two categories, criminal and civil. The forfeiture in the case at bar was in a criminal case. The bond was given to insure the defendant Tinkle’s appearance under a criminal indictment.

A majority of the states have a constitutional provision in which the power “to remit fines and forfeitures” is granted either to the Governor alone or in conjunction with other executives comprising a board. In none of these states have the courts ever held that the forfeiture mentioned in the constitutional provision does not apply to a forfeited bail bond. In fact, all of the courts having had occasion to pass on the question have held that the Governor alone or in conjunction with the board, as the ease may be, does have authority to remit a forfeited bail bond. The case of State v. Dyches, 28 Tex. 535, is directly in point. There the Texas court held outright that under a constitutional provision similar to ours the Governor had the power to remit a forfeited bail bond. See also: Williams v. Shelbourne, 102 Ky. 579, 44 S. W. 110; Com. v. French, 130 Ky. 744, 114 S. W. 255; Com. v. Hargis, 137 Ky. 1, 120 S. W. 294.

In the case of State v. Stone, 224 Ala. 234, 139 So. 328, the defendant failed to appear at trial on a charge of violation of the prohibition law. A judgment was taken against the sureties on the bail bond and made final. The sureties in seeking relief secured the passage of an act in the legislature appropriating the amount of the bond to be paid to them, the sureties. In holding that the act was unconstitutional in that the constitution granted to the Governor the power to remit forfeitures, the court said: “Under the Constitution of 1819, section 11, article 4, the Governor is given the power in all criminal and penal cases, except in those of treason and impeachment, to grant reprieves and pardons and remit fines and forfeitures, under such rules and regulations as shall be prescribed by law [identical with ours]. . . . No one, we assume, would pretend to hold that the next hour after the judgment was made final against the sureties on the bond of Moberg the Governor could not have remitted the forfeiture then made final against the sureties. This has been done from the earliest history of the state without question of the authority of the Governor. This power to remit such judgment, at all times called ‘final forfeitures,’ has been confided to the Governor or the executive branch of the government. ... It is to us clear that the Governor alone has the power to remit fines and forfeitures imposed and growing out of criminal prosecutions. This has been the prevailing idea through the years, from the birth of the state to the present time.” [Emphasis ours]

In Harbin v. State, 78 Iowa 268, 43 N. W. 210, the defendant Harbin failed to appear and an action on the bail bond was instituted and judgment rendered thereon. Almost a year after judgment, the Governor issued a proclamation remitting $600 of the $795 forfeiture, providing the balance, plus costs, was paid. The surety paid the balance and costs. The judgment was not satisfied of record and execution was issued. A proceeding was instituted to stay the collection of the judgment. The court said: “Had the governor authority, after the bond was prosecuted to judgment, to remit any part thereof? The power of the governor to make such remission after the entry of the breach of the conditions of the bond by the justice, and before judgment, is not questioned in this case; the point in argument being that, after judgment, there is no forfeiture within the meaning of the law, but a judgment over which the governor has no control or right of remission. The question involves a construction of section 16, art. 4, of the constitution, the essential part of which is that the governor ‘ shall have the power to remit fines and forfeiture under such regulations as may be prescribed by law* [same as ours]. . . . The case deals with the question of the claim being so changed that it is no longer a forfeiture within the meaning of the law as to the authority of the governor to remit.” After discussing the argument of whether the governor had authority to remit after judgment, and deciding in the affirmative, the court further said: ‘ ‘ The principle is of so much importance as to have a foundation in constitutional enactment. It hardly needs argument or citation of facts to show that reasons might exist for this beneficent act on the part of the governor, as well after judgment on a forfeiture as before. The law contemplates fact and circumstances under which the payment should not be required, even where it could legally be enforced, and we think it the spirit of the law that this large discretion with which the governor is invested extends to the time of payment of the forfeiture, whether after judgment or before.”

To the same effect is Walker v. State (Tex. Civ. App.) 103 S. W. 2d 404.

It is interesting to note that the Legislature has construed Art. 6, § 18 of the Constitution as giving the Governor authority to remit a forfeited bail bond. Ark. Stat. § 43-2818 provides: “The Governor is hereby prohibited from considering or granting any application for pardon, or remission of forfeiture of bail-bond until there is filed in his office a certificate of the county clerk, or the affidavit of two [2] persons known to be credible, that the application for such pardon or remission of forfeiture has been published as hereinafter provided.” [Emphasis ours]

The State also maintains that the proclamation is invalid because of the provisions of § 1 of Act 154 of 1903 (Ark. Stat. § 43-2818) quoted above.

It will be noticed the Act requires proof of publication that the application for such pardon or remission of forfeiture “has been published as hereinafter provided,” but the Act then fails to specify any method by which publication of the application for remittitur of the bail bond is to be made. This incompleteness might not be fatal to the publication requirement if the courts could reasonably say that any kind of publication would suffice. But § 2 of the Act (Ark. Stat. § 43-2819) provides:

“In applications for pardon in all cases of convictions for felony, and the offenses of wife-beating, unlawful carrying of weapons and the unlawful sale of liquors,, the application setting forth the grounds upon which the pardon is asked, together with a list of the signers or petitioners uniting in the request for pardon, shall be, published for two [2] insertions in a weekly newspaper,, if one [1] be published therein, in the county where the-conviction was had, or if the conviction was had in a county other than that in which the offense took place, then in the county where the offense was committed, in addition to the county where the conviction was had.”

And § 3 (Ark. Stat. § 43-2820) provides:

“In all cases of conviction for offenses other than those above mentioned, the publication of the intended application shall be made by posting the application,, containing a statement of the grounds upon which the pardon is asked, as well as a list of the signers to any petition asking that the same be granted, in front of the usual entrance door of the courthouse of the county or counties, as above provided, for the period of ten [10] days prior to the presentation of such application to the Governor.”

Thus, it is clear that there must be publication of one kind of notice of the application for a pardon for wife beating, etc., and another kind of publication for certain other offenses. Neither method of publication of the intent to apply for a pardon applies to applications for a remittitur on a forfeited bail bond. In these circumstances it is obvious that the Act requiring publication of the application for a remittitur is incomplete and cannot be enforced.

At the beginning of Act 154 of 1903 there is a synopsis of each section of the Act, and a publication of the application for the remission of a forfeited bail bond is not mentioned. It would be conjecture pure and simple for this Court to say that by Act 154 the General Assembly intended that publication of an application for remittitur of a forfeited bail bond should be made in the same manner as the publication required in applications for a pardon in the case of wife beating, felonies, etc., or by the same kind of publication required for other offenses. This Court said in Jones v. Lawson, 143 Ark. 83, 220 S. W. 311: ‘ ‘ The Court cannot adopt a conjectural interpretation of a statute to solve the doubt. If no judicial certainty can be settled on as to the meaning of the statute from its language, the court is not at liberty to supply one. There must be a competent and definite expression of the legislative will to accomplish that result.”

The fact that the statute dealing with applications for the remittitur of a forfeited bail bond is incomplete does not affect the authority of the Governor to remit such forfeiture. Horton v. Gillespie, 170 Ark. 107, 279 S. W. 1020, was a case involving the authority of the Governor to issue a pardon.' There the Court said: “Legislation which denied the right to pardon except in cases of treason and impeachment, or which so hampered the right as to make the right substantially unavailing, would be void as an abridgment of the power conferred.” The same thing is true with reference to the authority of the Governor to remit a bail bond forfeiture. Under the Constitution the General Assembly has the power to prescribe rules and regulations concerning the granting of remittiturs of forfeited bail bonds. But the fact that the Legislature has not prescribed a method for publishing the application for the remission of a bond forfeiture does not affect the authority of the Governor to make such remission.

Reversed, with directions to set aside the judgment rendered on the bond forfeiture.

Ed. F. McFaddin, Associate Justice

(Dissenting).

The question presented on this appeal is the power of the Governor to grant to appellants relief from a bail bond forfeiture. Dates and events herein are:

(1) On October 29, 1956 appellant, Tinkle, was arrested in Mississippi County, Arkansas because of an information and warrant charging him with burglary and grand larceny alleged to have been committed in Mississippi County on September 13, 1956.

(2) On November 26, 1956 Tinkle made bond for $5,000.00 with appellant, Carolina Casualty Insurance Company (hereinafter called “Carolina”), as surety. The bond was conditioned for Tinkle’s appearance in the said criminal case in the Mississippi County Circuit Court.

(3) Early in 1957 Tinkle was arrested on a warrant from the United States District Court and charged with a federal offense (robbery of F.I.D.C. bank), and committed in Diagonal, Iowa on March 24, 1957. Tinkle was convicted of said crime in the United States District Court in Iowa on August 22, 1957 and sentenced to ten years in a United States prison. At all times since the last mentioned date Tinkle has been held by the United States.

(4) On October 28, 1957 when Tinkle failed to appear for trial in the Mississippi County Circuit Court a forfeiture was taken on the said bail bond; and an order made as follows:

“. . . the Clerk of this Court is hereby directed to issue summons to the Bondsmen directing them to show cause, if any they have, why judgment should not be entered against them according to the terms of said Bond, and to issue an alias warrant for the defendant, Thomas Gordon Tinkle, Jr.”

(5) Summons was duly issued and served on Carolina in accordance with the foregoing order. On October 22,1958 the Governor of Arkansas issued a Proclamation purporting to relieve Tinkle and Carolina from the bail bond forfeiture.

(6) On November 7, 1958 the Mississippi County Circuit Court, after hearing evidence of all the foregoing, rendered judgment which refused to recognize the enforceability of the Governor’s Proclamation. The judgment said in part:

“. . . that the State of Arkansas, for the use and benefit of Mississippi County, Arkansas, do have and recover of and from respondents and defendants, Thomas Gordon Tinkle, Jr., and said Carolina Casualty Insurance Company, from each and both of them, the sum of $5,-000.00, interest thereon as provided by law, until fully paid, and all costs herein expended, for which execution shall issue.”

(7) On November 14,1958 the Governor of Arkansas issued Ms further Proclamation in this matter which was a further effort to relieve Tinkle and Carolina from the bail bond forfeiture. On December 1, 1958 Tinkle and Carolina presented to the Mississippi County Circuit Court the Governor’s Proclamation of November 14, 1958 and asked that the judgment of November 7, 1958 be vacated and set aside. The prayed relief was refused; and the Circuit Court issued an order reading in part:

“.... the Court considers, orders, and adjudges, that the said motion of the said respondents, defendant and movants, praying that said judgment of this Court of November 7th, 1958, be vacated and set aside, be, and the same is hereby overruled and finally dismissed at the cost of said respondents, defendants and movants. ’ ’

(8) Prom the order of December 1, 1958, as well as from the judgment of November 7,1958, Tinkle and Carolina prosecute the present appeal.

So much for the facts. As heretofore stated, the question is the power of the Governor to grant appellants relief from the bail bond forfeiture in this case. The germane portion of Art. 6 § 18 of the Arkansas Constitution reads as follows:

“In all criminal and penal cases, except in those of treason and impeachment, the Governor shall have power to grant reprieves, commutations of sentence and pardons after conviction, and to remit fines and forfeitures under such rules and regulations as shall be prescribed by law.”

In Hutton v. McCleskey, 132 Ark. 391, 200 S. W. 1032, the Governor had issued a proclamation relieving citizens from the penalties in certain tax assessing matters. This Court carefully considered Art. 6 § 18 of the Constitution and held that the words, ‘ ‘ in all criminal and penal cases ’ ’, qualified the entire sentence of Art. 6 § 18 of the Constitution, and related as much to forfeitures as it did to reprieves, commutations, and pardons. Chief Justice McCulloch used this language in the Court’s opinion:

‘ ‘ The manifest design of the framers of the Constitution was to limit the power to pardon for crime and to remit fines and forfeitures to criminal and penal cases after conviction of crime or judgment for the imposition of fine or forfeiture, and not to allow its application to penalties and forfeitures civil, remedial and coercive in their nature. This is clearly indicated in another provision of the Constitution which expressly declares that ‘No power of suspending or setting aside the law or laws of the State shall ever be exercised except by the General Assembly’. Art. II, Sec. 12.
“The effect of a general amnesty such as was attempted by the proclamation now under review would operate as a suspension of the law and come within the spirit, if not within the letter, of the inhibition of the Constitution just quoted, and when the two provisions of the Constitution are read together it is clear that it was intended to confine the power of the executive, with respect to the remission of fines and forfeitures, strictly to criminal and penal cases after judgment, and not to remedial and coercive penalties such as a penalty for non-assessments or non-payment of taxes. The power of the executive is, in other words, limited to the extension of clemency to individuals under sentence or judgment for crime, penalty or forfeiture, and does not reach to the granting of general amnesties, nor relief from civil penalties and forfeitures.” (Emphasis supplied.)

Therefore, in the light of the holding in Hutton v. McGleshey, supra, it must be determined whether a proceeding - like the present one - to collect on a bail bond forfeiture is a civil case or a “criminal and penal case”. With striking unanimity the adjudicated cases hold that an action to collect on a bail bond forfeiture is a civil action. In 10 Ann. Cas., page 293, there is ail annotation entitled: “Action on Criminal Bail Bond as Civil or Criminal Proceeding”; and the following appears:

‘ ‘ It may be stated as a well-settled rule that an action by the state or government on a criminal bail bond is civil and not criminal in its nature. Such an action is based upon a contract between the surety and the state whereby, on condition broken, the surety becomes liable to pay a sum certain to the state. It is in no sense a continuation of the criminal proceedings in which the bail bond was given, and is enforceable by a civil action. State v. Robb, 16 Ind. 413; State v. Ozer, 5 La. Ann. 744; State v. Norment, 12 La. 511; State v. Ansley, 13 La. Ann. 298; U. S. v. Ensign, 2 Mont. 396; Moore v. State, (Tex. Crim. 1907), 106 S. W. Rep. 358. And it is equally well settled that the state may bring an action of debt on the recognizance to recover from the surety the amount thereof. Pate v. People, 15 Ill. 221; People v. Witt, 19 Ill. 169; State v. Inman, 7 Blackf. (Ind.) 225; State v. Gorley, 2 Iowa 52; State v. Glass, 9 Iowa 325; State v. Folsom, 26 Me. 209; Com. v. Green, 12 Mass. 1; People v. Van Eps, 4 Wend. (N. Y.) 387; State v. Daily, 14 Ohio 92; State v. Gassaway, 11 Humph. (Tenn.) 203. See also Wingate v. Com., 5 Cush. (Mass.) 446; Com. v. Gordon, 15 Pick. (Mass.) 193; People v. Blackman, 1 Den. (N. Y.) 632; People v. Young, 7 Hill (N. Y.) 44; State Treasurer v. Cook, 6 Vt. 282.”

The holdings are also summarized in 6 Am. Jur. (Revised Volume) page 152, “Bail and Recognizance” § 210; and in 8 C.J.S. page 191, “Bail” § 95. An enlightening case is that of Dale v. Commonwealth, 101 Ky. 612, 42 S. W. 93, 38 L.R.A. 808, which clearly illustrates the difference between a pardon and an attempt to relieve against a bail bond forfeiture. In that case there had been a bail bond forfeiture; and later the defendant was apprehended, tried, and convicted. The Governor issued a pardon, and the Kentucky Constitution provided as to the power of the Governor (% 77): “He shall have power to remit fines and forfeitures, commute sentences, grant reprieves, and pardons, except in cases of impeachment...” The Court of Appeals of Kentucky held that the pardon relieved the convicted person of the sentence but had no effect whatever on the bail bond forfeiture; and the Court quoted with approval this language from the Supreme Court of Kansas : “Nor can we see how a pardon could reach a matter wholly independent of the criminal offense charged or of the punishment therefor. Even if the defendant had been acquitted on the criminal charge, still this action on the forfeited recognizance might be maintained. ’ ’

Some examples of forfeitures in criminal cases as found in Arkansas statutes are: destruction of an illicit still (§ 48-938); confiscation of fish or game unlawfully caught (§ 47-523); and confiscation of deadly weapons in certain instances (§ 43-2327). These are some of the “forfeitures” referred to in the Constitution, and which may be remitted by the Governor; but an effort to collect on a forfeited bail bond, even in a criminal case, is a civil action. In the case at bar the appellants gave notice of appeal as provided by Act No. 555 of 1953, which relates only to civil cases; later, on January 19, 1959, appellants applied to the Trial Court and obtained an extension of the 90 days for filing of the record in this Court, and such extension is a procedure under said Act No. 555 which applies only to civil cases; and when appellants filed the present appeal in this Court, it was - without objection - filed on the civil docket.

Kegardless of what other states may have decided, I insist that our own Court in Hutton v. McCleskey, supra, held:

* ‘ The power of the executive is, in other words, limited to the extension of clemency to individuals under sentence or judgment for crime, penalty or forfeiture, and does not reach to the granting of general amnesties, nor relief from civil penalties and forfeitures.”

I conclude that the action and judgment on the forfeited bail bond was a civil proceeding, and that the Governor’s power relates only to “criminal and penal cases”, and does not extend to a civil case like this one.

Therefore, I respectfully dissent from the majority holding in the case at bar.

       The said Proclamation recited in part: “WHEREAS, the Circuit Court of Chickasawba District, Mississippi County, Arkansas, Criminal Division, did on October 28, 1957 enter an order of forfeiture on bond dated November 26, 1956, and bearing the number 58978, said bond having been executed and given for the appearance of Thomas G. Tinkle, Jr., in Case No. 8081 in the said Circuit Court, to-wit: ‘State of Arkansas vs. Thomas Gordon Tinkle, Jr.’; and
      “WHEREAS, the Carolina Casualty Insurance Company, with home office in Burlington, North Carolina, is the surety on said bond, with Thomas Gordon Tinkle, Jr. being the principal, and ....
      “WHEREAS, it is deemed it would be unjust and unfair not to remit, extinguish, cancel, and release the forfeiture of said bond as is above referred to, and that as above referred to, it would also be unjust and unfair not to also remit, extinguish, cancel, and release all obligation thereunder to pay said bond; . . . .
      “NOW, THEREFORE, I, Orval E. Faubus, Governor of the State of Arkansas, by virtue of the power and authority vested in me under Article 6 § 18 of the Arkansas Constitution of 1874, do hereby remit, extinguish, cancel, and release the forfeiture of said bond under the court order of said Circuit Court to such effect of October 28, 1957, or of any other date, to now and hereafter, by or of said Circuit Court, said bond having been filed in said court on November 26, 1956, bearing and showing Power No. 58978, having been executed and given for the appearance of said Thomas G. Tinkle, Jr., in said court as defendant in the certain cause therein styled ‘State of Arkansas vs. Thomas Gordon Tinkle, Jr.’, being Case No. 8081 in said court, the said Thomas G. Tinkle, Jr., and Thomas Gordon Tinkle, Jr., being one and the same person, the principal in and of said bond and the defendant in said Case No. 8081 in said court; and all obligation to pay said bond is also hereby remitted, extinguished, cancelled, and released . . . . ”

       This Proclamation said in part: “NOW, THEREFORE, I, Orval E. Faubus, Governor of the State of Arkansas, by virtue of the power and authority vested in me under Article 6, Section 18 of the Arkansas Constitution of 1874, do hereby remit, extinguish, cancel and release the forfeiture of said bond and said judgment thereon which has been rendered by said Circuit Court on said date of November 7,1958, or any such forfeiture and any other such judgment thereon with reference to said bond, and all obligation to pay said bond and judgment is also hereby remitted, extinguished, cancelled, and released.”


author: Jim Johnson, Associate Justice.

text:
    Life & Casualty Insurance Co. of Tenn. v. Jones.
    5-1860-61
    328 S. W. 2d 118
    Opinion Delivered October 5, 1959.
    [Rehearing denied November 9, 1959]

      J. M. Smallwood, for appellant.

      Gordon $ Gordon, for appellee.
   Jim Johnson, Associate Justice.

Appellee, Mayme Jones, filed these actions to recover from appellant, Life and Casualty Insurance Company of Tennessee, as beneficiary under two policies of insurance issued by appellant on the life of appellee’s husband, Biley Jones.

The first policy was a regular life policy which provided for payment of $1,000 in case of death. The same policy also contained the following accidental death provision :

“Upon receipt at the Home Office of the company of due proof of death of the Insured resulting directly and independently of all other causes from bodily injuries solely through external, violent and accidental means, not caused or contributed to by bodily or mental infirmities, the Company will pay in addition to any other sums due under this Policy an Accidental Death Benefit equal to the amount of life insurance then payable at death; provided that such death occurs (1) after the Insured attains age 5 and prior to attaining age 70, (2) within 90 days from the date such injuries were sustained, and (3) while premiums are not in default beyond the grace period specified in the Policy. The amount of any disability benefits which have been paid or may become payable under this Provision shall be deducted from any amounts payable under this Accidental Death Benefit Provision.
“This provision does not cover death caused (1) from self destruction while sane or insane, (2) from participation in an assault or felony, (3) directly or indirectly from, or contributed to by bodily or mental infirmities or disease in any form, or from medical or surgical treatment thereof, (4) from operating or riding in or descending from any kind of aircraft if the Insured is a pilot, officer or member of the crew of such aircraft or is giving or receiving any kind of training or instruction or has any duties aboard such aircraft or duties requiring descent therefrom, or (5) from riot, insurrection or war, declared or undeclared, or any act attributable thereto, whether or not the Insured is in Military or Naval Service.”

The second policy was an accident policy only and contained the following provisions:

“BENEFIT FOB DEATH BY ACCIDENTAL MEANS — If the insured, after the effective date of this policy, sustains drowning or bodily injury effected solely through violent, external and accidental means, and if such drowning or bodily injury is the direct, independent and proximate cause of the death of the insured within 90 days from the date of such injury, and if such death is not caused or contributed to by disease or infirmity, the Company will on surrender of the policy pay the principal sum specified herein.
“EXCLUSIONS, REDUCTIONS AND LIMITATIONS: This Policy does not cover death caused (1) from self destruction, while sane or insane, (2) directly or indirectly from, or contributed to by, bodily or mental infirmities or disease in any form, or from medical or surgical treatment thereof, (3) from operating or riding in or descending from any kind of aircraft or is giving or receiving any kind of training or instruction or has any duties aboard such aircraft or duties requiring descent therefrom, or (4) from war, declared or undeclared, or any act attributable thereto, whether or not the Insured is in Military or Naval Service except that where the loss or injury occurs on land and within the continental land boundaries of the United States of America and not on a boat, ship or other' watercraft wherever located, there shall be paid one-fifth of the amount of the applicable benefit stipulated in. this policy. ’ ’

The jury returned a verdict for appellee in both cases for the amount sued for. Judgment was entered in accordance with the verdict from which appellant prosecutes this appeal.

For reversal, appellant relies on the following points:

(1) The trial court erred in refusing to direct a verdict for appellant in case No. 1860 and in case No. 1861 for the reason that both policies were issued by appellant with Riley Jones as the named assured, based upon applications signed by the appellee without the knowledge and authority of Riley Jones, the named assured in each of said policies.

(2) The trial court committed reversible error in admitting the following incompetent evidence:

(a) In permitting appellee to testify about a discussion that she had had with her husband, Eiley Jones.
(b) Permitting Carolyn Jones to testify about the payment of an undetermined number of premiums by Eiley J ones.
(c) Permitting Stanley Jones and Buster Dixon to testify that the deceased, Eiley Jones, knew that he had insurance policies with appellant.

(3) The trial court erred in failing to direct a verdict for appellant on the accidental death benefits under policy sued on in case No. 1860 and the policy sued on in case No. 1861.

(4) The trial court erred in refusing to give appellant’s requested Instruction No. 2.

The facts are briefly as follows:

Two agents of appellant, namely, E. E. Hackworth and J. D. Almand, solicited the insurance here in question by going by the home of Mrs. Mayme Jones and taking the applications. The applications for each policy are exactly alike and contain a long list of questions, some of which pertain to the health of the applicant. After the agents filled in the applications they then instructed Mrs. Mayme Jones to sign her husband’s name to the applications, which she did. Mrs. Jones did not read the applications, nor did she read the answers to the questions inserted by the agents. The applications were not attached to and made a part of the policies, and Mrs. Jones never saw the applications again until after the death of her husband, and after the insurance company had refused payment on the policies.

The testimony is in dispute as to what occurred when the applications were filled out. Mrs. Jones testified that only a few questions were asked her and she answered them truthfully. The agents testified that they recorded the answers to questions as given them by Mrs. Jones.

According to the undisputed testimony, Eiley Jones and his wife had discussed the matter of insurance and he had authorized her to either reinstate some lapsed policies with the same company or to take out new policies.

It is further undisputed that on the night of April 6, 1957, one Elmer Martin drove to the home of Eiley Jones, called him out to the car, and after cursing him struck Eiley Jones on the head with a clubbed Coca-Cola bottle. The witnesses place the time of the attack at shortly before 10 p.m., and the time of death prior to 10:30 p.m. that same night.

An autopsy was performed. The report is as follows:

“1. Coronary thrombosis and occlusion of left anterior descending branch of left coronary, with myocardial infarction.
“2. Severe generalized arteriosclerosis with severe coronary sclerosis.
“3. Cardiac hypertrophy, 620 grams.
“4. Laceration of scalp with hemorrhage.
“5. Hypertensive cardiac vascular disease, with terminal cardiac failure.
‘ ‘ 6. Congestion of lungs, terminal.
“7. Obesity.”

Dr. Eoy Millard, a general practitioner, who had been treating Eiley Jones over a period of years, testified that the assault precipitated the death of Eiley Jones.

Dr. W. M. Hamilton of Little Eock, who is a specialist in internal medicine with emphasis on heart disease, testified that this assault was the proximate cause of the death of Eiley Jones. The appellant introduced no medical testimony to refute this.

Appellant’s points 1 and 2, relied on for reversal, concern the matter of whether or not appellee was acting as agent for her husband, Riley Jones, when she made application for insurance on his life, and if in fact the applications were made with the knowledge and authority of her husband.

Appellee sought to prove her agency by testifying that her husband wanted the insurance and authorized her to apply for it. She sought to prove knowledge and authority by the testimony of her daughter, Carolyn Jones, relative to payment of an undetermined number of premiums by Riley Jones, and also by the testimony of her son, Stanley Jones, and Buster Dixon concerning Riley Jones’ knowledge that he had insurance policies with appellant.

We find no error in the trial court permitting the introduction of this testimony.

The case of Johnson v. Arkansas Foundry Co., 173 Ark. 1181, 292 S. W. 373 (this opinion is not printed in the Arkansas Reports) is directly in point. In that case about the only testimony concerning agency was the deposition of the wife in which she stated that she was the agent for her husband. This Court stated at page 375:

“We think it would be competent for her to testify that she was the agent without stating how she was appointed or anything about the circumstances of her appointment . . .
“As we have said, the only question in the case is a question of agency, a question of fact, and Ruby Johnson testifies that she was the agent ...”

We can see no reason to deviate from the rule set out in the Johnson case, supra. Certainly under the facts in the case at bar, agency was a question of fact for the jury.

Appellant’s points 3 and 4, relied on for reversal, concern the construction of the terms of the accidental death provisions contained in the insurance policies sued upon. Appellant’s requested Instruction No. 2 is as follows:

“If you find from the evidence in this case that Riley Jones’ death was caused or contributed by disease, then in such event the plaintiff was not entitled to recover. In other words, if the death of Riley Jones was not directly and proximately caused solely through violent, external and accidental means but that his death was caused or contributed to by diseased condition of his cardio vascular system, if you find the same was diseased, then you are instructed that plaintiff would not be entitled to recover.”

Our exhaustive research reveals the law to be well settled in this state that an insurance company is liable on their policy of accident insurance if death resulted when it did on account of an aggravation of a disease by accidental injury, even though death from the disease might have resulted at a later period regardless of the injury, on the theory that if death would not have occurred when it did but for the injury, the accident was the direct, independent and exclusive cause of death at the time. See: Fidelity & Casualty Company v. Meyer, 106 Ark. 91, 152 S. W. 995; Maloney v. Maryland Casualty Company, 113 Ark. 174, 167 S. W. 845; Standard Life & Accident Ins. Company v. Schmaltz, 66 Ark. 588, 53 S. W. 49; Missouri State Life Ins. Co. v. Barron, 186 Ark. 46, 52 S. W. 2d 733; National Life & Accident Ins. Co. v. Shibley, 192 Ark. 53; 90 S. W. 2d 766; Prudential Insurance Company of America v. Croley, 199 Ark. 630; 135 S. W. 2d 322; Travelers Insurance Company v. Johnston, 204 Ark. 307, 162 S. W. 2d 480; Metropolitan Casualty Company of N. Y. v. Fairchild, 215 Ark. 416, 220 S. W. 2d 803; Union Life Ins. Co. v. Epperson, 221 Ark. 522, 254 S. W. 2d 311; Fidelity Reserve Ins. Co. v. English, 266 Ark. 210, 288 S. W. 2d 951; Pacific Mutual Life Ins. Co. v. Smith, 166 Ark. 403, 266 S. W. 279.

Therefore, we find no error in the trial court’s refusal to give appellant’s requested Instruction No. 2, and since the undisputed medical testimony is that the assault was the proximate cause of the death of Riley Jones, we find no error in the trial court’s refusal to direct a verdict.

Affirmed.