author: Paul Ward, Associate Justice.

text:
    Browning v. State.
    4990
    346 S. W. 2d 210
    Opinion delivered May 15, 1961.

      George F. Edwardes, for appellant.

      J. Frank Holt, Attorney General, by Russell Morton, Asst. Attorney General, for appellee.
   Paul Ward, Associate Justice.

Leonard T. Browning, age 66, was charged with the crime of assault with intent to kill George Alford on July 11,1959, at the Union Station in Texarkana. The jury returned a verdict against Browning for aggravated assault and assessed as punishment a fine of $750 and 9 months in the county jail, and judgment was accordingly entered. Since we have concluded that reversible error was committed we will confine this opinion primarily to that point.

It is not denied that appellant shot and wounded Alford, but there is a sharp conflict in the testimony of the only two eye witnesses to the shooting as to how the difficulty arose. Alford, the prosecuting witness, in substance, testified: On July 11, 1959,1 was the terminal trainmaster, in a supervisory capacity, at the Union Station in Texarkana; I have known appellant, who was under my supervision, for about 17 years — he has an office in the same building; it is my usual daily custom to read a newspaper upstairs after my work is over; while so engaged I saw appellant near by, looking like he was mad, he inquired what I meant by asking if he had been drinking (referring to a previous incident); I told him it was my duty to check the employees and that this was no time to talk about it; lie gritted bis teeth and began to punch me in the stomach with a parasol; I grabbed the parasol but he took it away from me; when I reached for my (reading) glasses he pulled a gun out of his pocket and began shooting; I don’t know how many times he shot but two bullets hit me. The witness further testified that a Mr. Shellman came running out of the ticket office and grabbed appellant, and then an ambulance came and took him (Alford) to the hospital. Appellant does not deny shooting Alford, but says that Alford provoked the difficulty.

Appellant testified in substance; when I reached the head of the stairs in the station I heard someone call my name, and I saw Alford sitting down near by; he was looking straight into my eyes; I asked if he spoke to me ; he looked like he was mad, like he could tear me to pieces; I asked him if he could explain his actions to me lately (referring to a previous incident which he described in detail); Alford got “very hot” and said “you want to talk to me you come to my office”; then I said “you can tell me right here”, and then he (Alford) “jumped up from there like he was shot from a spring”; he jumped right in my face and yelled “Browning, I’m going to hurt you”; I was standing at the head of the stairs and was afraid to step back — afraid I’d fall down the concrete steps; when I tried to push him back he put his hands into both pockets —• “I’d heard people talk about him pulling a knife”; he didn’t stop, and it looked like he was trying to get something out of his pocket; he kept getting closer, and when he wouldn’t take his hands out of his pockets I shot him; “I figured that he was coming on me with a knife and I didn’t want him to kill me with a knife.”

The first witness called by the State was Clyde Sewell, who also worked in the Union Station. He undertook to testify about a conversation which occurred in the building between appellant and others some two months before the shooting, when appellant objected. Thereupon the State’s attorney said he expected “to connect up some experience on that date with the experience of Jnly 11”; and the trial court allowed the questioning to be continued. The witness stated, among other things, that appellant said “he didn’t intend to be pushed around and he had his protection with him, and he showed me a little .25 Colt automatic.” On cross-examination the witness stated that appellant made no reference in any way to Alford, and that Alford was not discussed “in any shape, form or fashion.” Thereupon the following occurred:

Mr. Edwardes : “Now, may it please the Court, that’s not connected up at all and counsel knows its an inflammatory matter and its improper trying to inject it into this case.”

The Court : ‘ ‘ Overruled. ’ ’

Mr. Edwardes : “We therefore request that the testimony be excluded.”

The Court : ‘ ‘ Overruled. ’ ’

Mr. Edwardes : “ Note our exceptions. ’ ’

It is our conclusion that the judgment must be reversed for the error indicated above. A similar situation was presented in the case of Deal v. State, 82 Ark. 58, 100 S. W. 75. Deal was convicted for murder in the first degree. At the trial Thomas Isaac, introduced by the State, was allowed to testify as follows:

“On the afternoon before the killing Pickens Deal was coming down the road, and I spoke to him and asked him concerning a scrap he had had with another fellow. * * * He had his gun with him, and said he intended to shoot it until it melted if they didn’t quit running over him. Said he wouldn’t be very long about it. He didn’t say he was going to shoot any particular fellow. He did not mention the deceased.”

In reversing the case this court stated:

“The testimony of Isaac was therefore prejudicial. It tended to show a general malevolent spirit, a wicked and abandoned disposition; that appellant was in a frame of mind fatally bent on mischief which enlminated in the killing of Bronson. But the testimony was clearly incompetent, because the threat ‘to shoot his gun till it melted,’ made several hours before the tragedy, was not directed against Bronson, the man who was killed, ‘but against another fellow.’ ”

The Deal decision has been cited with approval in Washington v. State, 83 Ark. 268, 103 S. W. 617, and Breysacher v. State, 123 Ark. 101, 184 S. W. 433.

There was also other testimony introduced by the State to show appellant carried a pistol on a previous occasion and that he had previously had some trouble with persons other than Alford. This kind of testimony falls within the category of that heretofore discussed and was likewise incompetent, and should be. avoided upon a retrial.

Because of the errors above indicated the judgment is reversed and the cause is remanded for a new trial.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Kansas City Southern Ry. Co. v. Baker.
    5-2383
    346 S. W. 2d 215
    Opinion delivered May 15, 1961.

      Hardin, Barton <& Hardin, for appellant.

      Shaver, Tackett & Jones, for appellee.
   Sam Robinson, Associate Justice.

Appellees, Jady H. Baker, aged 40, and Grover Baker, aged 43, the surviving sons (and there are no other children) of Mrs. Ella Mae Baker, 65 years of age, who was killed at a railroad crossing at about 7:00 a.m. on the first of June, 1959, at Wilton, Arkansas, filed this suit against appellant, Kansas City Southern Railway Company, to recover for mental anguish. The complaint alleges that the operators of the train failed to give the statutory signals upon approaching the crossing and failed to keep a proper lookout, and that the railroad company had negligently parked some railway cars on a side track near the crossing which blocked Mrs. Baker’s view when she approached the main line track, and as the result of such alleged acts of negligence she was struck by the train. There was a judgment for appellants in the sum of $10,000 and the railroad company has appealed.

We quote appellees’ concise statement of the case: “H. S. Highway 71 lies east of and is parallel to the Kansas City Southern Railway Company tracks through the town of Wilton, Arkansas. The highway and the railway run north and south through the town and are approximately a block apart. The Alleene Road, running east and west, constitutes a street within the town of Wilton, across TJ. S. Highway 71 and the Kansas City Southern Railway tracks. The Wilton Post Office is located at the northeast intersection of the Alleene Road and U. S. Highway 71. The main line railway track leading from the north into the town of Wilton curves from a westerly direction to a southerly direction, a bit upgrade, three or four hundred feet north of the Alleene Road crossing. There are two side-tracks east of the main line, and the three tracks are some ten feet apart. Some empty railroad gravel cars were parked on the easternmost side-track thirty-four feet north of the street. Mrs. Ella Baker lived just west of the railway right-of-way, a short distance south of the Alleene Road.

“On the involved morning Mrs. Baker walked from her house in a southerly direction to a street crossing the railway a block south of the Alleene crossing, walked in an easterly direction across the railway tracks and across U. S. Highway 71, thence north to the Post Office. Upon leaving the Post Office she walked in a westerly direction across U. S. Highway 71 along the Alleene Road to the railway crossing, and while in the process of walking across the railway tracks she was struck and killed by a Kansas City Southern Railway southbound freight train. Mrs. Baker had almost completed crossing the main line track when she was struck by the right front portion of the engine. The skies were cloudy and it was about to rain, while Mrs. Baker was walking to and from the Post Office.

“The locomotive engineer and fireman testified that the locomotive whistle was sounded for the crossing, and that there were emergency blasts of the whistle in an effort to warn Mrs. Baker. That testimony was corroborated by Joe Terry, seventeen years of age, who lived near the crossing, and Mrs. Louis Ross, who also lived near the crossing. Mrs. Ervin Thomas, who lived in the house closest to the crossing, at the intersection of the railway right-of-way and the Alleene Road, and Mr. Emil Griffin, who lived some two blocks from the crossing, testified that the train did not whistle for the crossing and did not sound any emergency blasts.”

The engineer and fireman testified that they saw Mrs. Baker approaching the track and described her actions in doing so. The issue of whether the operators of the train kept a proper lookout was not submitted to the jury and appellees make no complaint of the trial court’s action in that regard. Appellees argue that there is sufficient testimony to sustain a finding that the statutory signals were not sounded. Mrs. Thomas and Mr. Griffin, produced as witnesses by appellees, testified that although they were in a position to have heard the signals had they been sounded, they heard none. Under the decision in such cases as Missouri Pacific R. R. v. Rogers, 206 Ark. 1052, 178 S. W. 2d 667, this may have been sufficient testimony to take the case to the jury on that issue. It appears, however, that in the case of Haney v. Missouri Pacific R. R., 214 Ark. 673, 217 S. W. 2d 610, the court deemed such negative testimony insufficient to take a crossing accident case to the jury. But it is not necessary to decide this point at this time because in the case at bar Mrs. Baker cannot recover, even though no signals were given, because if she saw the train approaching and walked in front of it, there can be no recovery regardless of whether the statutory signals were sounded. There is direct and circumstantial evidence that Mrs. Baker did see the train and tried to cross in front of it. There is no substantial evidence to the contrary. In the case of Missouri Pacific R. R. v. Doyle, 203 Ark. 1111, 160 S. W. 2d 856, this Court said: “We have many times held that the purpose of giving signals is to warn the traveler of the approach of a train, but when the traveler has this knowledge otherwise, warning signals cease to be factors.”

In the case at bar the train consisted of about 135 cars and six Diesel units. The weather was threatening. It had just started to rain, or was about to start. If Mrs. Baker had waited for the train to cross in front of her, she would have been exposed to the weather for the length of time it would have taken the long train to pass in front of her. The train was bound to have been making a great deal of noise. In Missouri Pacific R. R. v. Doyle, supra, the Court said: “We must take notice, also, of the fact that a heavy freight train moving at the rate of ten to fifteen miles per hour creates a noise which, with but the slightest attention, could be heard for many city blocks.” In the case at bar the train was going 40 miles per hour. Mrs. Thomas, witness for appellees, who lives about 100 feet from the railroad track, testified that although she did not hear the signals, she heard the train. She was not looking toward the railroad track but was looking in the opposite direction and saw Mrs. Baker when she passed the witness ’ house. Mrs. Thomas heard the train when Mrs. Baker was in front of her house, 100 feet from the tracks. The train was traveling 40 miles per hour, about ten times as fast as Mrs. Baker would be walking. This put the train about 1,000 feet or a little over three blocks away when Mrs. Thomas heard it. Mrs. Thomas testified:

“Q. At the time she [Mrs. Baker] came in front of your house, did you hear the train approaching from the north ?

“A. Yes, I did.

“Q. How did yon hear it?

“A. Well, I just heard it, yon know, the noise of the engine.

“Q. It made a lot of noise and yon could hear it coming?

“A. That’s right.

“Q. From what yon could hear, could yon place the train — what side of the crossing it was on?

“A. No, sir.

“Q. But yon know it was north of yon?

“A. Yes.

“Q. And Mrs. Baker was going in front of your house at the time yon heard the train coming?

“A. Yes.

“Q. What did Mrs. Baker do? Was she walking, trying to hurry?

“A. She was walking a little faster than usual.”

Of course, if the train could be heard 1,000 feet away, it could be heard all the way to the crossing.

In addition to the circumstantial evidence that Mrs. Baker saw and heard the train, there is the' direct testimony of both the engineer and the fireman. Mr. Car-lisle J. Cranor, engineer, testified that he first saw Mrs. Baker when she was about 50 feet from the main line and “then after I got up closer she got up to the gravel spur track and as she did she looked up and started to run. That is a figure of speech, because at her age it wasn’t a run, but it was faster than she was going.” Mr. O. F. Parker, fireman, testified that he saw Mrs. Baker when she was 45 or 50 feet from the crossing, and that “as the train came on down . . . she looked up and saw it.” He further testified:

“Q. Just state what she did.

“A. She looked up and saw the engine, then she got in a little run or a trot. She looked like an elderly lady. She couldn’t run very fast, but she got in a trot to beat the engine across the crossing, and the engineer — we both saw she was going to try to beat it, and I said ‘She’s going to try to beat it across’. Then he ‘big-holed’ the train [applied the emergency brakes] . . .”

There were some railway cars parked 34 feet north of the crossing, on a side track, and appellees contend that those cars blocked Mrs. Baker’s view of the approaching train. A plat of the crossing was introduced in evidence and it is shown conclusively that for at least the last 25 feet Mrs. Baker traveled before reaching the main line on which the train which struck her was traveling, there was nothing- to block her view of the approaching train. All she had to do was to look to the right and she could not fail to see it. There is no indication that her eyesight was impaired, and all of the direct and circumstantial evidence goes to show that she did see it. Of course, she could have stopped in a distance of 25 feet, but undoubtedly she thought she could beat the train over the crossing. In Missouri Pacific R. R. v. Doyle, supra, Mrs. Doyle saw the headlight of the oncoming train, but thought it was standing still. As a result, she was struck by the engine at the crossing. The trial resulted in a judgment for Mrs. Doyle. In reversing the judgment and dismissing the cause this Court quoted from Missouri Pacific R. R. v. Hood, 199 Ark. 520, 135 S. W. 2d 329, as follows: ‘ ‘ The conclusion is irresistible that Mr. Hood either failed to look east, the direction from which the train came, and on that account did not see the train or headlight, or that he looked and saw the headlight just as everybody else did.”

The judgment is reversed, and since the cause appears to have been fully developed, it is dismissed.


author: Jim Johnson, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Simmons & Flippo v. State.
    5003
    346 S. W. 2d 197
    Opinion delivered May 15, 1961.
    [Rehearing denied June 5, 1961.]

      Lightle & Tedder, for appellant.

      J. Frank Holt, Attorney General, by Jack L. Lessen-berry, Asst. Attorney General, for appellee.
   Jim Johnson, Associate Justice.

The appellants, Bobby Simmons and Larry Flippo, were charged with the crime of rape by felony information. They were tried jointly, convicted of assault with intent to rape, and sentenced to three years imprisonment. Following the jury’s recommendations for leniency, the court suspended the sentence of Bobby Simmons and declared that Larry Flippo should he eligible for parole after 18 months.

Of the several alleged errors which the appellants urge for reversal, only one — relating to the closing argument of the prosecuting attorney — need be discussed in reaching our decision.

During the course of his closing argument to the jury, the prosecuting attorney stated that the defendant, Larry Flippo, had previously raped a girl other than the prosecutrix. Neither the remarks of the prosecuting attoimey, nor the specific objections of the defense attorney were recorded by the court reporter. The defense attorney then filed a bystanders’ bill of exceptions pursuant to Ark. Stats. Anno., 1947, § 27-1750 et seq. The matters set out in the affidavits are uncontroverted and must be taken as true on this appeal. Boone v. Holder, 87 Ark. 416, 112 S. W. 1081; Perry v. State, 188 Ark. 133, 64 S. W. 2d 328.

In the affidavits it is stated that “. . . at the close of his argument to the jury, we understood the Prosecuting Attorney to state that the defendant, Larry Flippo had previously raped another girl and that he (Flippo) had never gone out with her thereafter.” After overruling the defendants’ objections, the court issued its only admonition to the jury on the prosecuting attorney’s argument:

“The Court: The jury heard the evidence, if the Prosecuting Attorney misquoted it then they are the judges of it.”

The only testimony relating to any other offense allegedly committed by either defendant was presented during the prosecuting attorney’s cross-examination of the defendant Flippo:

“Q. Do you know Marjorie Varnell?

A. Yes, sir, I knew her about a year.

Q. You raped her on the 12th day of March of this year, didn’t you?

Mr. Liglitle: We object to that.

The Court: The objection is overruled.

Mr. Lightle: Note our exceptions.

Q. You raped her on the 12th day of March, 1960, didn’t you?

A. No, sir.

Q. You say you went with her about a year?

A. I say I knew her about a year.

Q. How many times did you ever go with her?

A. Once.

Q. That was the 12th day of March, 1960?

A. Yes, sir, I have went with her since then though. ’ ’

One of the fundamental rules of trial practice in this state is that the closing arguments of counsel must be confined to the questions in issue, the evidence introduced at the trial, and all reasonable inferences and deductions which can be drawn therefrom. Vaughn v. State, 58 Ark. 353, 24 S. W. 588; Holder v. State, 58 Ark. 473, 25 S. W. 279; Hicks v. State, 193 Ark. 46, 97 S. W. 2d 900. There is no evidence in the record which provides, under any logical analysis, a foundation for the prosecuting attorney’s statement to the jury. As was said in Brown v. State, 143 Ark. 523, 222 S. W. 377:

“. . . The prosecuting attorney is not allowed to state, as a matter of fact, that of which there is no evidence. His statement in the case at bar was not within the latitude of discussion the law accords to counsel. Its evil tendency and prejudice to the rights of the defendant are manifest . . .”

A similar problem was presented in Wimberley v. State, 217 Ark. 130, 228 S. W. 2d 991:

‘ ‘. . . In referring to the defendant the prosecuting attorney said that ‘ every time he gets in trouble his poor old mother comes up here and pays his fine.’ The defendant bad not testified in bis own behalf and there was nothing in the record to show that he had previously been convicted of other offenses. The defendant objected to this argument as being prejudicial and asked for a mistrial. The court then admonished the jury that counsel’s argument must be based on the record. ‘The court wants to admonish you not to consider anything unless it is based upon the testimony of the record.’ The defendant renewed his objection, again asking for a mistrial. He duly saved his exception to the overruling of the objection.”

The defendant’s conviction of assault with intent to kill was reversed by a unanimous Court. As the Court held in its opinion written by Judge Dunaway:

“. . . The statement of the prosecuting attorney . . . was highly improper and prejudicial. The natural inference ivas that the defendant was an habitual offender (which was not shown by the record) and such an argument ivas bound to influence the jury. The court’s mild admonition to the jury to consider only argument based on testimony in the record was insufficient to remove the prejudice. Hughes v. State, 154 Ark. 621, 243 S. W. 70; Hays v. State, 169 Ark. 1173, 278 S. W. 15; Sanders v. State, 175 Ark. 61, 296 S. W. 70.” [Emphasis supplied.]

Many of the policies which underlie the rule prohibiting the introduction of evidence of other offenses apply with equal force to the problem presented in this case:

“. . . Basically, the rule rests upon that spirit of fair play which, perhaps more than anything else, distinguishes Anglo-American law from the jurisprudence of other nations. Our theory is simply that a finding of guilty should rest upon proof, beyond a reasonable doubt, that the accused committed the exact offense for which he is being tried. We do not permit the State to bolster its appeal to the jury by proof of prior convictions, with their conclusive presumption of verity, and still less is there reason to allow the jury to be prejudiced by mere accusations of earlier misconduct on the part of the defendant. If the accused has committed ■other crimes, each may be examined separately in a court ■of law, and punishment may be imposed for those established with the required certainty. In this way alone can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt.” Alford v. State, 223 Ark. 331, 266 S. W. 2d 804.

.Much of the fundamental protection thus afforded the .accused would be rendered ineffective if the prosecuting attorney were allowed to place before the jury indirectly by argument that which could not be introduced as evidence. See Little Rock Railway & Electric Co. v. Goerner, 80 Ark. 159, 95 S. W. 1007, 7 L.R.A., N.S., 97.

The appellee urges that the case at bar is controlled by what this Court said in Adams v. State, 165 Ark. 308, 264 S. W. 858:

“It is not reversible error for the prosecuting • .attorney to make an argument based upon a mis.appreliension of the testimony of a witness. A different question would be presented had he argued as a fact ■some proposition about which there was no testimony.” While this case seems clearly within the exception to the rule as stated, the facts here are not sufficiently analogous to the facts in Adams to require our application of its rule.

During the trial of Adams for murder ■ a witness testified that on the day of the shooting Adams had been “fooling with his gun” at the house of the witness. In his closing argument the prosecuting attorney stated that this incident had occurred at the victim’s house, which in fact was only a short distance from, the house of the witness. It is evident that this error was harmless. In the present case the remarks of the prosecuting attorney were inherently prejudicial.

It must also be noted that in the Adams case the witness, and not the prosecuting attorney, supplied the facts that were later misapprehended in the closing .argument. This Court has repeatedly observed that the prosecuting attorney acts in a quasi judicial capacity .and that it is his duty to use all fair, honorable, reasonable and lawful means to secure the conviction of the .guilty in a fair and impartial trial. But as we said in Holder v. State, supra:

“. . . Nothing should tempt him to appeal to prejudices, to pervert the testimony, or make statements to the jury which, whether true or not, have not Teen proved. The desire for success should never induce him to endeavor to obtain a verdict by arguments based on anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same. To convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences as the escape of a guilty man. The forms of law should never be prostituted to .such a purpose.”

See also, Adams v. State, 229 Ark. 777, 318 S. W. 2d 599.

The answers of the defendant Flippo on cross examination provide no basis whatsoever for the prosecuting attorney’s positive statement to the jury that the defendant had previously raped a girl other than the prosecutrix. Under these circumstances the prosecuting .attorney’s closing argument was highly improper and prejudicial. Absent an affirmative showing in the record to the contrary, the error was also prejudicial to the defendant Simmons. Moore et al. v. State, 227 Ark. 544, 299 S. W. 2d 838. The prejudice created was not Temovecl by the court’s admonition to the jury. For this error the judgments of the trial court are reversed and the cause remanded for a new trial.

Bobinson, J., concurs.

Harris, C. J., and McFaddin, J., dissent.

Ed. F. McFaddin, Associate Justice,

dissenting. I am •of the opinion that the admonition given by the Trial Court <cured any error of the Prosecuting Attorney, even if, in fact, lie mis-stated the evidence. When the defendants’ attorney objected to the statements by the Prosecuting Attorney the Court said:

“The jury heard the evidence. If the Prosecuting Attorney misquoted it, then they are the judges of it. ’ ’

Jurors are sensible persons. They had heard the witnesses and knew whether the Prosecuting Attorney was misquoting the evidence. The Court told the jury in the instructions: “In this case as in all others you are the sole and exclusive judges of the evidence, its weight, its sufficiency, and also the credibility of the witnesses. . .” That instruction, coupled with the admonition previously quoted- — I maintain — was sufficient to cure any misstatement of the evidence. See 88 C.J.S. p. 391, “Trial” § 197, and see particularly Martin v. Kelley, 97 N. H. 466, 92 Atl. 2d 163, where a very similar admonition by the Court to the jury was held to have cured any misstatement of the evidence.


author: Carleton Harris, Chief Justice.

text:
    Shainberg v. Dacus.
    5-2418
    346 S. W. 2d 462
    Opinion delivered May 22, 1961.

      Frierson, Walker $ Snellgrove, for appellant.

      H. PL. McAdams, Penix $ Penix, for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. Charles Nolan Dacus was employed in the S & S Department Store, operated by Yictor Shainberg and Harry Samuels, having been so ■employed for a long number of years. Principally, he •served as a clerk, but one of his duties consisted of dressing show windows. During the week commencing January 27th, Dacus was engaged in changing display windows, including removing the background from the ladies’ window, and remodeling the ceilings and floor. According to the testimony, Dacus was unable to continue with the carpentry after January 31st, due to intense pain in his right leg. He returned to stock work until February 5th, at which time he left the job and went home, and to bed. On February 9th, Dacus was referred to the Kennedy General Hospital in Memphis, by Dr. John T. Gray, an orthopedic surgeon of Jonesboro. Surgery was performed on February 24th. A claim was filed by Dacus, wherein it was contended that h.e had suffered an accidental injury arising out of, and in the course of, his employment, such injury aggravating a pre-existing back condition; further, that he was ■temporarily totally disabled from February 5th to April 15th, 1958; that he had incurred medical and hospital bills, and had a 5% permanent partial disability to his "body as a whole. Claim was denied by the Referee, who found that Dacus had failed to establish that he had sustained an accidental injury arising out of and during the course of employment. The full Commission, after reviewing the testimony, reversed the opinion of the Referee, and awarded compensation as sought. The findings of the Commission were affirmed by the Craig-head County Circuit Court. From the judgment of such court, comes this appeal.

The proof consisted of the testimony of Mr. Dacus, his wife, Ruth Dacus, Victor Shainberg, and the deposition of Dr. Gray, together with various exhibits. The evidence reflected that Dacus lived on a 190-acre farm near Jonesboro, and that he had engaged in operating a tractor and mowing machine on the farm since 1951. Dacus testified that he first hurt his back in 1954. “It happened on a Sunday. I had a regular water bucket which I believe is ten quarts, two and a half gallons, with oats in it, and I was walking across a level field and my back just gave way.” Subsequently, at the suggestion of Dr. Gray, Dacus slept on a plywood board, with a thin mattress, and was advised to take “heat treatments, diathermy treatments.” He testified that he took the treatments for about ten days, and the pain suddenly ceased. He was next afflicted with pain in November, 1957, all the pain occurring in the calf of the leg. During November and December, the pain gradually ascended from the calf to the thigh; however, he went duck hunting on November 7th and. 14th, and hunted rabbits and birds in December, 1957, and January, 1958. According to his testimony, he last went hunting sometime prior to January 19th. Dacus stated that after walking awhile, pain in the calf of the leg, or thigh, would disappear, but upon arising in the morning, the pain would again commence. Dacus worked in the store all during the month, and on January 21st, went to Dr. Grover Poole, the family physician, who prescribed some tablets. On January 23rd, he again went to Dr. Gray. The doctor was not present at the office, but Dacus was given a diathermy treatment by the nurse. On January 24th, he was given another diathermy treatment by Dr. Gray. During this entire week, he continued his usual work as a salesman. On Monday, January 27th, work was begun on the display window. According to the witness, the window was a little better than eight feet long, the background about eight feet, and seven and a half to eight feet tall. Dacus testified that he first took out the glass and the door, and then took out the “solid section. ’ ’

“After taking the glass out, I took the moulding off around the window which was all that held the background in, took a crow bar and prized the background loose from the framing of the window and on one window, I let it down on the floor and from there the boy at the store helped me slide that back to the back of the store and we took it in behind the barber shop.

“Q. You say you picked this piece up and laid it on the floor. About how much did that piece weigh?

“A. That background would weigh approximately one hundred pounds.

‘ ‘ Q. Did you try to lift it by yourself ?

“A. Well, all I had to do to get it on the floor was prize it loose and pull it out from the thing and just let it drop, more or less drop to the floor which was about eighteen inches.”

Further:

“After that, I had to build a frame down one side of the window in a curve I would say about three and a half or four feet, put in beaver board to make a curved background for part of the window and I put in a celotex ceiling. ’ ’

This last required Dacus to stand on tip-toe, since the ceiling was about eight feet high. Dacus testified that he had pain in the entire leg, and was taking Miltowns, and codeine tablets to ease the pain. On the 29th, 30th, and 31st of January, shelving was taken out of the window, and Dacus was unable to do further carpentry after that date. He testified that he could not drive a car at that time, and his right leg was “getting stiff, and when I got down, I had to pull myself up.” The next week he engaged in stock work until Wednesday, February 5th, at which time he went to bed. As previously set out, Dacus was referred to a Memphis hospital on February 9th, by Dr. Gray, and an operation was performed on February 24th. The period covered by the claim is February 5th to April 15th, during which time Dacus was not at work.

Mrs. Dacus testified that her husband did not appear to he a lot worse during the week of the 20th, but during the week starting the 27th, he apparently suffered considerable pain. She stated that after supper, he would lie down on the couch with a heating pad, and that it was necessary for him to get up two or three times during the night to take tablets to ease the pain.

Mr. Shainberg, one of the employers, testified that he was present in the store while Dacus was working on the window, with the exception of the last two days. Shainberg stated that Dacus did not report any injury, though he did complain of a pain in his leg once or twice, and asked for time off to see Dr. Gray. Shainberg testified that Dacus’ testimony relative to the type of work being done, was substantially correct.

According to the testimony of Dr. Gray, Dacus was first treated by him in 1954, and the doctor stated that, at the time, he considered Dacus had a ruptured disc. He testified that he considered the difficulty in the fall of 1957 and winter of 1958 to be the same as suffered by Dacus in 1954. The doctor stated that Dacus came to his office on January 23rd and on the 24th. The witness was asked his opinion of whether the work performed by Dacus during the week of January 27th aggravated the pre-existing condition, and he replied:

“I saw him on January 25, and he was still having a lot of discomfort, and then on the 3rd of February we saw him again, and he returned stating he had more recurrence of the pain in his thigh, and I thought he definitely had a protruding disc and advised him regarding home treatment and to rest. He told me at that time he had been doing some carpenter work, repairing the ceiling, and I certainly would think that would aggravate his condition. The mere fact that he stayed on the job would aggravate it. * * *

“We advise them not to do a lot of heavy lifting and bending of their hacks. We try to instruct them how to protect the spine.”

Further:

“I think something aggravated his condition because we had him pretty well asymptomatic on the 25th. That would be on Saturday; then all of that next week apparently he aggravated it because he returned on the 3rd, stating he had a recurrence of pain. * * *

“During that time, I would say his work definitely aggravated his condition.”

Dr. Gray stated there are numerous types of activity that affect a disc. ‘ ‘ The tendency to rupture will rupture sometimes bending over — sometimes they will rupture with arms overhead, or just swinging a golf club. * * * Sometimes a sneeze, and they will start.” He testified that operating a tractor over regular ground would not bother too much; that he had lots of patients operating tractors, but if over rough ground, “It would likely jar the back.”

Appellants contend that this award is based on conjecture and speculation. They point out that Dacus was unable to state the day the injury occurred, and in fact, in response to the question, “As a matter of fact, do you know whether you got injured in the store or not?”, answered, “I wouldn’t swear to it, no.” Appellants assert there are many activities that could cause the injury, i. e., receiving a jar while driving a tractor, tripping over logs or stumps while duck hunting, or driving an automobile. They state:

“It is noteworthy that although Dacus testified at length describing the various activities in which he engaged in his work at the store immediately prior to his disability, he does not point out any particular activity that caused him pain or increased his pain, nor does he mention any incident when any of his activities produced any unusual or increased pain. His only statement in this connection was that the leg got progressively worse during that week.”

In Murch-Jarvis Company, Inc. v. Townsend, 209 Ark. 956, 193 S. W. 2d 310, we said:

“There are numerous cases from other jurisdictions holding that a disease, or an aggravation thereof, resulting from inhalation of dust particles or fumes may constitute an accident, or injury, within the meaning of the particular act involved. * * * Appellants insist, however, that appellee did not suffer an accidental injury because no definite date or occasion can he fixed as to when the aggravation happened. Schneider, in his Workmen’s Compensation Text, Yol. 4, Perm. Ed., p. 387, has this to say on the question: ‘Diversity of opinion exists as to -what constitutes the customarily required definite time and place of an accident. On this question the expressions of the courts vary from the statement that “accidents do not happen all day” to decisions to the effect that it may require as much as six months for an accident to culminate in a disabling injury. A reasonably definite time is all that is required.’ * * * While there is some confusion in the testimony on the point, there is substantial evidence to support the commission in finding that inhalation of the dust and fumes over a period of several days culminated in total disablement of appellee five or six weeks later. We think the proof meets the requirement that a reasonably definite time and place of accident he shown, and that the commission correctly held that the disablement of appellee resulted from an accidental injury within the meaning of the Workmen’s Compensation Law.”

It might he mentioned that there was a conflict in the medical testimony as to whether Townsend’s employment (exposure to dust and fumes) actually caused or aggravated a pre-existing diseased condition, which resulted in disabilit}?-. In the instant litigation, there is no conflicting medical evidence. It is, of course, true that the original injury suffered by Dacus occurred some years prior to the time of his claim, hut Dr. Cray’s evidence is very positive that the carpentry engaged in by Dacus, requiring, as it did, stooping, and lifting and reaching, aggravated his condition. It is possible, as appellants state, that some other activity might have also aggravated it (though, from the record, the only activity engaged in by Dacus after starting work on the display window, was riding in an automobile), but we are only here concerned with whether the activity in question aggravated his condition; in other words, was it at least a contributing cause of the injury. The facts in this case are practically undisputed, and to hold this claim non-compensable, would require a finding that Dr. Gray’s testimony did not constitute substantial evidence. We are unable to make such a finding.

Affirmed.

       Dacus had earlier been employed by C & S Department Store, -.the predecessor of S & S.

       Dacus died during- the pendency of the appeal to the Circuit Court, from causes unrelated to this claim. The proceeding was revived by order of the Circuit Court in the name of the widow and minor daughter, but the daughter has since died, leaving the widow the sole interested party.


author: J. Seaborn Holt, Associate Justice. Jim Johnson, Associate Justice,

text:
    West v. Lake Lawrence Pulpwood Co.
    5-2406
    346 S. W. 2d 460
    Opinion delivered May 22, 1961.
    J. Fred Jones, for appellant.

      Robert Latv, Mehaffy, Smith $ Williams, W. A. Eldredge, Jr., for appellee.
   J. Seaborn Holt, Associate Justice.

This is a workmen’s compensation case. Tom West, a pulpwood hauler, was severely injured when a dead tree fell on him breaking a leg, three ribs and four other ribs being torn loose. His kidneys, pelvis and abdomen were also injured. Mr. West filed a claim for compensation against the Lake Lawrence Pulpwood Company for workmen’s compensation benefits. The referee and the full commission denied compensation on the ground that the evidence did not show that West was an employee of the Lake Lawrence Pulpwood Company. The circuit court affirmed the action of the commission and this appeal by West followed.

There is presented only one question on this appeal and that is whether there was any substantial evidence to support the finding of the commission. We have repeatedly held that we must affirm if there is any substantial evidence to support the commission’s action. In the very recent case of Moore v. Long-Bell Lumber Company, 228 Ark. 345, 307 S. W. 2d 533, we said: “Under our well established rule, since the enactment of our Workmen’s Compensation Law, we have consistently held that the findings of the Commission are entitled to the same verity as would attach to a jury’s verdict and that the circuit court on appeal to it, and this court, must affirm if there is any substantial evidence to support the Commission’s finding, and we think there was such substantial evidence shown here. See J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Baker v. Silaz, 205 Ark. 1069, 172 S. W. 2d 419; Hughes v. Tapley, 206 Ark. 739, 177 S. W. 2d 429; Fordyce Lumber Company v. Shelton, 206 Ark. 1134, 179 S. W. 2d 464.

In Wren v. D. F. Jones Const. Co., 210 Ark. 40, 194 S. W. 2d 896, we used this language: ‘Under our Workmen ’s Compensation Law the Commission acts as a trier of the facts — i. e., a jury — in drawing the inferences and reaching the conclusions from the facts. We have repeatedly held that the finding of the Commission is entitled to the same force and effect as a jury verdict. In Ozan Lbr. Co. v. Garner, 208 Ark. 645, 187 S. W. 2d 181, in affirming the finding of the Commission to the effect that the worker was an independent contractor and not an employee, we said: “We are not concerned here with the preponderance of the testimony. After a careful review of the entire record, we have reached the conclusion that there is substantial evidence presented to support the Commission’s finding that appellee, at the time of his injury, was an independent contractor.” ’ ”

In the present case the evidence shows that appellee, Lake Lawrence Pulpwood Company, exercised no control over the details of the work. West’s job was to haul pulpwood to the railhead at Norman where he was paid. The loading and hauling of the logs were left solely to the discretion of West. The evidence further shows that West did the cutting of the timber without the supervision of Lake Lawrence Pulpwood Company. The proof further shows that West furnished his own tools for the cutting and hauling of the logs, employed and paid his own employees and that he, West, was injured upon land leased by him for timber cutting. There is no evidence that West was required to work for any certain time or on any particular day and the method of payment to him was by the cord. The stipulated amount was paid for each cord of wood hauled, the price varying with the distance of the haul. The evidence does not show that the hauling of pulpwood was a part of the Lake Lawrence Pulpwood Company’s operation, in fact the evidence indicates that the aforesaid company purchased only from haulers. The only evidence in any way contradicting this is that West testified that he thought he was covered by workmen’s compensation.

We said in Fagan Electric Company v. Green, 228 Ark. 477, 308 S. W. 2d 810, that: “The rule is also well settled that in testing the sufficiency of the evidence before the Commission, the Circuit Court, on appeal from the Commission, and this Court, on appeal from the Circuit Court, must weigh the testimony in its strongest light in favor of the Commission’s findings.”

Affirmed.

Robinson and Johnson, JJ., dissent.

Jim Johnson, Associate Justice,

dissenting. I find myself in basic disagreement with the opinion of the majority and therefore respectfully dissent.

Apparently, the opinion of the majority relies upon the tests set ont in the Restatement of Agency (2d Ed.) Sec. 220, for determining whether or not an employer-employee relationship existed between the parties to this action. While the Restatement of Agency tests are certainly valid in a proper situation, I cannot agree that they should be applied in Workmen’s Compensation cases for determining the relationship between the parties. As pointed out by Dean Larson in his excellent work on Workmen’s Compensation, the basic purpose for which the definition of an employee as used in compensation statutes is entirely different from the common law purpose. At common law the concept of an employee or servant performed one main function and that was to delimit the scope of a master’s vicarious tort liability. This tort liability naturally arose out of detailed activities carried on by the servant resulting in harm to third persons. The extent to which an employer could control these detailed activities was highly relevant to the question whether the employer ought to be liable for them or not. Again, as pointed out by Larson, the theory of compensation is concerned not with injuries by the employee in his detailed activities but with injuries to him as a result not only of his own activities but those of co-employees, independent contractors and other third persons. To impose a narrow common law concept upon a statute which this Court has many times said should be liberally construed to afford relief is to do violence to both the legislative intent and previous decisions of this Court.

By applying the tests which the majority opinion apparently uses, I am of the opinion that the evidence shows that Tom West was an employee of appellee. First, the majority says the only evidence contradicting the testimony offered by the appellant is that he thought he was covered by workmen’s compensation. The record clearly reflects that the appellant was the only one to present any evidence at the trial and no evidence was presented to contradict his case. The evidence shows that Lake Lawrence was the only buyer of pulpwood in Montgomery County. The arrangement by which he purchased pulp timber was no ordinary operation. The method was a stipulated price per cord based upon mileage, a rather unusual method of payment. Second, Tom West was not cutting timber upon land owned or rented in fact by him. The evidence shows that Lake Lawrence, through the use of a straw man, had actually rented this land to avoid certain government regulations on cutting other parcels before completion of another. I find it even more significant that not only Tom West thought he was covered by workmen’s compensation but evidently Lake Lawrence thought so too. Corroborated evidence was presented in the record to the effect that Lake Lawrence deducted a fixed sum per cord of wood cut for workmen’s compensation insurance. We have held that the employer’s practice of carrying a particular person on his compensation insurance payroll is a factor to be considered and given weight in discovering the real understanding of the employer as to the worker’s status. Farrell-Cooper Lumber Co. v. Mason, 216 Ark. 797, 227 S. W. 2d 444.

In conclusion I find that, all other things aside, the least that can be said is that there should be an estoppel to deny recovery. Estoppel is a holding out, justified reliance on the holding out, and detriment from such holding out. Here, Lake Lawrence by carrying compensation insurance on the worker led the worker to omit to take other measures protecting his income in time of disability. Under these circumstances, recovery should be allowed and therefore I respectfully dissent.


author: Ed. F. McFaddin, Associate Justice.

text:
    Ford Motor Co. v. Fish.
    5-2416
    346 S. W. 2d 469
    Opinion delivered May 22, 1961.

      Wright, Lindsey, Jennings, Lester & Shults, for appellant.

      Talbot Feild, Jr., O. Wendell Rail, Jr., Mehaffy, Smith & Williams, Robert V. Light, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is the second time this case has been to this Court. In the opinion on the first appeal (Ford Motor Co. v. Fish, 232 Ark. 270, 335 S. W. 2d 713), we recited the facts in considerable detail, and reference is hereby made to that opinion for factual recitations. On the first appeal we reversed the judgment for the reasons therein stated, and the cause was remanded. On retrial, there was a jury verdict and judgment in favor of Fish against the Ford Motor Company; and the case is now before us on this second appeal in which the Ford Motor Company urges the two points now to be discussed.

I. The appellant says: “The evidence'was not sufficient to sustain a verdict against appellant, and the trial court should have directed a verdict for appellant.” On the first appeal, the Ford Motor Company urged that it was entitled to a directed verdict; and, in denying that contention, we said: “There was evidence of specific negligence, though not of the strongest nature. For instance, the witness Mayer testified that the brake was binding, which occasioned his taking it to Cook’s Machine Shop to see if the drum was out of round; there was the evidence of the skid mark, and the evidence of Fish himself as to the pull to the right; the testimony that the mechanism had not been disturbed and had remained sealed, and that the drum was an eighth of an inch out of round.” We then concluded, “. . . the judgment is reversed, and the cause remanded.”

On the second trial, the evidence for the plaintiff Fish was practically the same as that in the first trial except: (a) the hypothetical question asked the witness Bearden in the first trial- — -and held by us to he error— was not repropounded; and (b) the witness Mayer added some details to his testimony in the second trial and also admitted that he did not know how to use a certain gauge discussed by appellant’s witnesses. But, with the exception of these items, we cannot discover — and appellant has not shown us — any material difference between the evidence to support the plaintiff’s case in the first trial and the evidence to support the plaintiff’s case in the second trial. Since we held on the first appeal that the evidence for the plaintiff made a case for the jury, and since we now find — as we do — that the evidence for the plaintiff in the second trial was equal to that in the first trial, it must necessarily follow that the appellant was not entitled to an instructed verdict on the second trial.

In Hallum v. Blackford, 202 Ark. 544, 151 S. W. 2d 82, it was insisted that the Court should have directed a verdict. But we pointed out that we had denied that contention on the first appeal and that the plaintiffs’ evidence on the second trial was the same as on the first trial; and we said: “Under the rule many times announced by this Court, the decision on the former appeal becomes the law of the case on this appeal unless we can say that the testimony on this second appeal is substantially different from that on the first appeal. We think it unnecessary to attempt to set out or abstract the testimony presented in this record. Suffice it to say, that after carefully reviewing it and comparing it with the testimony on the first trial, we find no substantial or material difference.” In Missouri Pacific R. R. Co. v. Foreman, 196 Ark. 636, 119 S. W. 2d 747, Mr. Justice Donham cited scores of cases on the rule of “law of the case”, and concluded Avith this language: “We hold that, since the question as to whether or not the evidence Avas sufficient to go to the jury in the instant case Avas settled by this court on the former appeal, there was no error committed by the loAver court in submitting the case to the jury on the second trial.”

In McDonough v. Williams, 86 Ark. 600, 112 S. W. 164, Mr. Justice McCulloch used this language: “Learned counsel for appellant argue with much zeal and plausibility that the plaintiff did not make out a case to go to the jury, and that the findings of the jury as to the various essential elements of the alleged cause of action are not supported by evidence. The same question was argued Avith equal force and confidence when the case was before us on former appeal, but we decided that there Avas enough evidence to go to the jury. There is little difference in the evidence in the present record and in that presented on the former appeal, and Ave must treat the former decision as conclusive of the question. ’ ’

It is true that in the second trial in the case at bar the Ford Motor Company offered additional witnesses; but the additional evidence AAras only an effort to contradict and AAreaken the plaintiff’s case, and all such additional evidence did not destroy the fact that the plaintiff had made a case to go to the jury. The decision as to the weight of the evidence was for the jury. The fact remains that we held on the first appeal that the evidence offered by the plaintiff Fish made a case for the jury; and that holding is the law of the case on this appeal since the evidence of the plaintiff was practically the same at each of the trials.

II. The appellant says: “ The Court erred in giving, over the general and specific objections of the appellant, plaintiff’s instructions numbered 4 and 5.” The Instruction No. 5, of which plaintiff now complains, reads:

“If you find from a preponderance of the evidence in the case that a defect existing during the manufacturing or assembly process by defendant, Ford Motor Company was the proximate cause of the upset of this vehicle and the resulting injuries and damages, if any, to the plaintiff, and if ypu further find that the exercise of reasonable care by defendant Ford Motor Company would have avoided the placing of this vehicle in the channels of trade with such a defect, if any, then you may find that the failure of defendant Ford Motor Company to discover and correct the defect, if any, constitutes negligence. ’ ’

This same instruction was plaintiff’s Instruction No. 6 in the first trial and, in the opinion of the first appeal, we found the said instruction to be good as against the objections then offered. While the objections to the instruction were somewhat more lengthy in the second trial than in the first, we still adhere to our conclusion that the instruction is good; and this is true even against the objections offered in the second trial.

The Instruction No. 4 given at the second trial, and challenged by the appellant on this appeal, is an instruction relating to circumstantial evidence. The instruction reads:

“Any fact in controversy in this case can be proved by direct or circumstantial evidence. Circumstantial evidence is evidence which does not directly prove the existence of a fact but merely gives rise to a logical inference that it exists. Thus, a fact is established by direct evidence when proved by witnesses who testify with reference to what they saw, heard or perceived, and a fact is established by circumstantial evidence when its existence can be fairly and reasonably inferred from other facts proved in the case.”

Appellant contends that the above instruction is abstract and has no application to the evidence presented in this case, and that it permits the jury to engage in speculation and conjecture in the absence of proof. We find no merit to appellant’s said objections. Certainly there were circumstances — as well as direct evidence — shown by the plaintiff to support his case; and when a litigant relies in whole or in part on circumstantial evidence, then it is proper for the court to define circumstantial evidence. In Kurry v. Frost, 204 Ark. 386, 162 S. W. 2d 48, we said: “The court gave, over the objection and exception of appellant, an instruction on circumstantial evidence, of which appellant says it ‘might not be an erroneous abstract statement of law, but it is clearly abstract. It does not undertake to apply the evidence in this case.’ The instruction was not abstract, as appellee’s case depended upon proof of circumstances to support the -inference and finding that appellant was the driver of the car, and it was the function of the jury to weigh and apply the testimony.”

In Pekin Wood Products Co. v. Mason, 185 Ark. 166, 46 S. W. 2d 798, we said: “The settled rule, which has been many times approved by this court, is that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions. St. Louis, I. M. & So. Ry. Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171; St. Louis, I. M. & So. Ry. Co. v. Owens, 103 Ark. 61, 145 S. W. 879; Midland Valley Ry. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214; St. Louis-San Francisco Ry. Co. v. Bishop, 182 Ark. 763, 33 S. W. (2d) 383.”

We conclude that appellant’s objections to the Court’s instructions are without merit. Affirmed.

Ward, J., dissents.

       In the briefs, both sides cite and discuss such cases as Pierce v. Ford Motor Co., 190 F. 2d 910, General Motors Corp. v. Johnson, 137 F. 2d 320; and Hupp Motor Car Corp. v. Wadsworth, 113 F. 2d 827. We find it unnecessary to discuss these cases because the rule 'of “law of the case” and the jury verdict settle the issue of liability.

       In Hearnsberger v. McGaughey, 218 Ark. 663, 239 S. W. 2d 17, Chief Justice Griffin Smith quoted scholarly language on eii. umstantial evidence.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Johnson v. Bear Brand Roofing, Inc.
    5-2420
    346 S. W. 2d 472
    Opinion delivered May 22, 1961.
    [Rehearing denied June 5, 1961.]

      Paul K. Roberts, for appellant.

      Shackleford c& Shackleford, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This is a Workmen’s Compensation case. The Beferee, in the first instance, and the Full Commission, on review, disallowed the claim of Appellant Joe Johnson. The Circuit Court affirmed the Commission; and the case is here on appeal. Several points are argued, but our reversal is because of the error of the Beferee and the Commission in refusing to consider a hypothetical question and the answers thereto.

Appellant, Joe Johnson, aged 59 and weight about 135 pounds, was employed by appellee, Bear Brand Boofing, Inc., as a truck driver, and had been so employed for several years. The truck was a 5-ton semitrailer truck. On Sunday, February 21, 1960, the truck was more than half filled with rolls of roofing and siding; and, in accordance with instructions, Johnson drove the truck from Bearden, Arkansas to deliver the roofing and shingles to purchasers in Tennessee. In addition to the ordinary travel time, some time was lost en route because of the necessity of repairs to the lighting system of the truck; and, at midnight, Johnson arrived in Clarksville, Tennessee, where the first shipment was to be delivered. He slept in the sleeping compartment of the truck until about 5:30 a.m. Monday morning, February 22nd, when he awoke and obtained breakfast.

Johnson finally located the Clarksville consignee, W. H. Hall Company; and, since that company was “short of hands,” Johnson helped with the unloading. The rolls of roofing were three and one-half or four feet high and were standing on end in the truck, and each roll weighed between fifty and seventy pounds. Johnson’s work in the unloading consisted in laying the rolls down on the truck and rolling them to the rear of the truck where other laborers would take them. Approximately an hour was consumed in unloading roofing and siding at the warehouse. Then Johnson, at the request of the foreman of the consignee, drove the truck to a motel construction site and unloaded in the same manner 130 additional rolls of roofing.

After thus unloading the shipment in Clarksville, Johnson started to Eaglesville, Tennessee to deliver his next consignment. While he was still in the city limits of Clarksville, he felt a sensation which he described as if the tie rods of the truck were dragging and he could not turn the wheel. The truck went back and forth across the road and finally left the highway and struck a utility pole. Two Tennessee Troopers witnessed the mishap. Johnson was in a state of semi-consciousness and the Troopers forced his hands from the wheel of the truck. He was taken by ambulance to a Clarksville hospital where he remained approximately four weeks. His attending physician in Clarksville, Dr. James L. McKnight, noted on the report which was introduced in evidence that Johnson was hospitalized because of, “Cerebral Thrombosis with paralysis of extremities of the left side while driving a truck”; and that the injury would be permanent in that there was paralysis of the left side. “Arteriosclerosis” was listed as a contributing factor to what occurred. Dr. McKnight further stated: “The only significant past history was that of frequent headaches in the past for years.” On March 18, 1960, Johnson was transferred from the Clarksville, Tennessee hospital to the Ouachita County Hospital at Camden, Arkansas, where he remained for two weeks under the care of Dr. John P. Thompson.

At the time of the hearing before the Commission on October 3, 1960, Johnson was still disabled; and it was stated that he would probably be disabled for life. He filed his claim for total permanent disability. The claim was denied, both by the Referee and the Full Commission, because the claimant had not “sustained the burden of proof that is upon him to establish a causal connection between his cerebral thrombosis on February 22, 1960, and his work for respondent employer.” In order to establish a causal connection between the work and the cerebral thrombosis, Johnson’s attorney called Dr. R. B. Robbins of Camden, Arkansas, who answered the hypothetical question, but the answer was entirely ruled out by the Referee and the Full Commission. We hold that the hypothetical question was proper and the answer should have been considered.

The qualifications of Dr. Robbins were admitted; he stated that he had examined Johnson on June 3, 1960; found him suffering with a paralysis of the left side of his body; that Johnson was then disabled and would probably be permanently disabled; and that the paralysis was caused by a brain injury that is commonly known as a vascular accident. The first hypothetical question asked Dr. Robbins began: “Doctor, assuming that a man who was fifty-nine years old and who has a medical history of having arteriosclerosis . . .” This question was objected to on several grounds, but the Referee sustained the objection on the ground that the only history of arteriosclerosis was contained in Dr. McKnight’s report as a contributing cause, which did not show the arteriosclerosis to have pre-existed the injury. The Referee said: “There is nothing in the history of this case at all in regard to arteriosclerosis.”

With the objection thus sustained — and even assuming the Referee was correct in his ruling regarding arteriosclerosis — the attorney for Johnson made his record by asking Dr. Robbins this hypothetical question and receiving the answers as shown:

“Q. Assuming that a man who is fifty-nine years old, Doctor, who weighs approximately one hundred and thirty-five pounds were to drive a four ton semi-trailer truck loaded with three tons of roofing from Bearden, Arkansas, leaving there at ten o ’clock in the morning and driving with a few interruptions until twelve that night and arriving say, in Clarksville, Tennessee and assuming that this driver would then go to bed and sleep for five and a half house and assuming that he would then get up and in the course of a couple of hours would begin unloading rolls of felt and other materials which would weigh from sixty to seventy pounds each and would ■unload possibly one hundred to two hundred of these rolls and then at about ten thirty or eleven o ’clock would suffer a vascular accident or hemiplegia which you have described, would in your opinion his activity from ten o ’clock a.m. on the day of his leaving from his home base until the time that the accident happened, would that in your opinion increase the chances of a hemiplegia or a vascular accident?

“A. The strain of that?

“Q. Yes, sir?

“A. Yes, it could be a contributing factor.

"Q. Then you state that his activities of the strain and stress of this period of activity could have been a contributing cause to his stroke?

“A. That’s right. . . .

“Q. His vascular accident?

“A. That’s right. . . .

‘ ‘ Q. Assuming that this hypothetical fact that I have presented to you had been before you and that you were treating this man after he had come to the hospital and that you had information that the man had been engaged in this activity before he sustained the injury, would in your opinion his activity have had anything to do with his condition?

“Mr. Shackleford: We renew our objection to this hypothetical question.

‘ ‘ Mr. Roberts : I am just asking him if he had been treating this man like Dr. McKnight did, would, in his opinion, his activity of the prior twenty-four hours before he suffered this accident, would that activity in his opinion have been a contributing cause to his accident?

“The Witness : Yes, it very definitely could.

‘ ‘ By Mr. Roberts :

“Q. Would you say that you believe it was a contributing cause in your opinion?

“A. Well, I would be inclined to think it had something to do with it. I sure would.

‘ ‘ Q. You would be inclined to think that his activity had had something to do with it? Is that your answer?

“A. That’s right.”

We have copied the salient portions of the record in order to show that the hypothetical question, as finally propounded and answered, omitted all reference to arteriosclerosis and that, after the said hypothetical question was propounded and answered, the attorney for the employer did not specifically point out any other claimed defect in the hypothetical question. The Beferee was in error in refusing to consider the hypothetical question and the answers thereto; and such answers would certainly constitute evidence of a causal connection between the work and the cerebral thrombosis. The employer and its insurance carrier offered no testimony, either before the Beferee or the Full Commission; but, in the hearing before the Full Commission, the attorney for the employer made a three-page objection to the hypothetical question and answer. We have considered each point mentioned in that three-page objection and find each to be without merit.

We hold that the hypothetical question finally propounded to Dr. Bobbins was in compliance with our holding as found in the landmark case of Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, and adhered to in all of our subsequent eases. The Commission was of the opinion that our holding in Hulsizer v. JohnsonBrennan Const. Co., 232 Ark. 571, 339 S. W. 2d 116, would rule out this hypothetical question. We do not so agree. In the Hulsizer case, the doctor answering the hypothetical question assumed facts contrary to those shown in the record. In the case at bar, the hypothetical question embraced all of tbe essential facts involving causal connection between tbe work and tbe thrombosis. Tbe question and tbe answer to it sbonld bave been considered.

Tbe judgment of tbe Circnit Conrt is reversed and tbis canse is remanded to tbe Circuit Court, witb directions to remand tbe canse to tbe Commission for further proceeding's not inconsistent witb tbis opinion.

       The witness, N. A. Cross, General Manager of appellee, testified for appellant that the truck was still half loaded after appellant had made the deliveries in ClarksviTe, Tennessee, and suffered his mishap.

       To pin-point the reason ior the Commission’s ruling, we quote from the opinion of the Commission: “The only doctor who expresses an opinion as to causal connection is Dr. Bobbins who did not see claimant until June 3, 1960, and it is clear that his opinion is based upon hypothetical questions to which proper objections were made by counsel for respondents. The hypothetical questions contained statements which were not borne out by the record and were lacking in other material facts. While the case of Mrs. Alta Hulsizer v. Johnson-Brennan Construction Company, No. 2178, decided by the Arkansas Supreme Court on October 17, 1960, is not precisely on all fours with instant case, we believe there is an analogy to be drawn with regard to a doctor basing his opinion upon statements not supported by the record. In the Hulsizer case, the Arkansas Supreme Court found that the Commission had committed error in considering Dr. Biggall’s testimony because he assumed facts not shown in the record. We also find that Dr. Bobbins’ conclusion as to causation is wholly without a foundation. Claimant’s claim is, therefore, denied and dismissed.”

       This full hypothetical question is set out as follows: “Doctor, assuming- that a man who was fifty-nine years old and who has a medical history of having arteriosclerosis was to drive a heavy laden truck from say Bearden, Arkansas to Clarksville, Tennessee and assuming- that he left Bearden at ten o’clock in the morning and drove that truck with some intervals of being stopped because of light failure until ten o’clock p.m. of that same day and assuming then that at twelve o’clock p.m. he would go to bed in his cab and sleep for a few hours, say five and a half hours, and then assuming that upon his arising at five thirty a.m., that he would assist in unloading heavy rolls of felt and materials (to side houses) which weighed say sixty to seventy pounds apiece and assuming that he helped unload maybe two hundred of these rolls and then assuming that about ten thirty or eleven o’clock in the morning of that day that he was to suffer a hemiplegia which you have described, would, in your opinion, his activities of driving the 'truck for several hundred miles and unloading the truck as has been described, could you state that there would be any connection between his activities and the injuries he sustained?”

         Some of these cases are: Miss. River Fuel Corp. v. Senn, 184 Ark. 554, 43 S. W. 2d 255; Williams v. State, 162 Ark. 285, 258 S. W. 386; Crocker’s Heirs v. Crocker’s Heirs, 156 Ark. 309, 246 S. W. 6; Pate v. State, 152 Ark. 553, 239 S. W. 27; Heinemann v. Barfield, 136 Ark. 456, 207 S. W. 58; Metr. Cas. Ins. Co. v. Chambers, 136 Ark. 84, 206 S. W. 64; Scullin v. Vining, 127 Ark. 124, 191 S. W. 924; and Ford v. Ford, 100 Ark. 518, 140 S. W. 993.


author: George Rose Smith, J. George Rose Smith, J.,

text:
    Laney v. Monsanto Chemical Co.
    5-2326
    348 S. W. 2d 826
    Opinion delivered May 22, 1961.
    [Rehearing denied, September 19, 1961.]

      Gaughan $ Laney, for appellant.

      O. M. Martin, Lamar B. Smead, Shackleford & Shackleford, for appellee.
   George Rose Smith, J.

These two cases, consolidated for trial in the court below, involve the title to a forty-acre tract of land that was formerly owned by Charles Richardson, the parties’ common source of title, who died in 1935. The land was sold for nonpayment of taxes in 1925, and two years later a tax deed was executed and delivered to the purchasers, George W. Hays and J. B. Newton.

There are three sets of claimants to at least some interest in the land. First, the heirs of the tax title purchasers, Hays and Newton, assert a claim of absolute ownership on the basis of two years actual possession under the tax title. Ark. Stats. 1947, § 34-1419. Second, F. A. and B. T. Laney claim an undivided one-eighth interest in the minerals through deeds which, they obtained in 1936 from the heirs of Charles Richardson. Third, Feldt & Maytag, a partnership, claim the surface ownership and an undivided one-eighth interest in the minerals through a deed which they obtained in 1957 from the heirs of Charles Richardson. The other party to the suit, Monsanto Chemical Company, is merely a stakeholder having in its possession oil royalties that are payable to the true owners of the land.

One of the suits in the court below was brought by the Laneys to quiet their title to the mineral interest asserted by them. The other was brought by the Hays and Newton heirs for an accounting of the oil royalties held by Monsanto. After an extended trial the chancellor held that Hays and Newton, despite the invalidity of the 1925 tax sale, had acquired absolute title by means of actual possession for a period of more than two years. The Laneys and Feldt & Maytag have both, appealed from the decree quieting title in the Hays-Newton heirs. The contentions of the two sets of appellants present different questions and must therefore be discussed separately.

We consider first the Laneys ’ appeal. Here the decision ultimately turns upon the extent to which a tax title purchaser can assert adverse possession as a result of the original owner’s tenant having attorned to the tax title purchaser after the tax sale.

The essential facts are these: Charles Richardson, the common source of title, bought 240 acres of land in 1919 and later built a small house upon the 40-acre tract now in dispute. In 1927, when Hays and Newton received their tax deed, the house was occupied by Richardson’s tenant, Wyley Bass, who testified that he was in actual possession of the land from 1927 until 1933.

Charles Richardson’s son, Grover Richardson, was a principal witness for the Hays-Newton heirs. Grover testified that he and his father visited Bass soon after Charles learned about the tax forfeiture. According to Grover his father then said to Bass, “Well, I learned today that this land went for taxes.” Grover said that he and his father next went to see a prospective purchaser of the land, and the elder Richardson explained that he would be unable to sell the property. Bass, also testifying for the appellees, confirmed the conversation in which Charles Richardson told him about the tax forfeiture. Bass stated that later on Newton, one of the tax title purchasers, told Bass that he had bought the property and directed Bass to pay the rent to Newton’s agent. Bass said that he accordingly paid rent, at the rate of five dollars a month, to Newton’s agent until he left the land in 1933.

The appellees, in contending that their ancestors had actual possession of the property from 1927 until 1933, insist that after the tenant’s attornment to Newton the tenant’s possession must be deemed to have been that of Hays and Newton. This argument is not quite sound, however, for the reason that there is no proof that Charles Richardson knew or had notice that his tenant had attorned to the holders of the tax deed. Hence there is no showing that the true owner was pnt on notice that the two-year statute was running in favor of the tax title grantees.

An almost identical situation was presented in Cotton v. White, 131 Ark. 273, 199 S. W. 116, where we rejected the tax title purchaser’s claim, saying: “As a further source of title, appellant relies upon the two years’ statute of limitations. He testified that he took possession of the above tract in 1910 by going down there and finding a Mr. Patrick in possession and cultivating the land. Patrick told him that he had been a tenant of the original owner. Appellant told Patrick that he had bought the land at tax sale and wanted possession, and Patrick agreed to hold under appellant and pay rent to him provided certain improvements were made, and Patrick remained on the land as appellant’s tenant for three years. Was Patrick’s possession as tenant of appellant adverse to the holders of the legal title?

‘ ‘ The element of notoriety must be added to adverse possession before it can ripen into title by limitation. A bare agreement on the part of one in possession of land to attorn to another, who claims it, is insufficient, in the absence of notoriety, to render the latter’s possession adverse to a third party. Johnson v. Elder, 92 Ark. 30, 121 S. W. 1066. There is no evidence in this case that notice was in any manner brought home to appellee, or to his predecessors in title, that Patrick was holding adversely to him or them. Under these circumstances, the claim of title by adverse possession must fail.”

Charles Richardson no doubt had notice that Bass remained in possession from 1927 until 1933, but that occupancy was too short to vest title under the seven-year statute. Ark. Stats., § 37-101. And, under the Cotton case, the two-year statute did not run against Richardson, for he had no notice that Bass had attorned to Newton. It follows that the Laneys are entitled to prevail, for the Richardson heirs still had title when they conveyed a one-eighth mineral interest to the Laneys in 1936.

The other appellants, Feldt & Maytag, are in a less favorable position, as they did no.t obtain a deed from the Richardson heirs until 1957. The weight of the evidence shows that the land was allowed to return to its natural state in about 1936 and was still wild and unimproved at the time of trial. The Hays and Newton heirs paid the taxes, under color of title, from 1935 through 1946 and from 1948 through 1958, thereby acquiring title before the conveyance to Feldt & Maytag. Ark. Stats., § 37-102; McFarlane v. Morgan, 157 Ark. 97, 248 S. W. 257. The Laneys were not affected by the tax payments, however, for their mineral interest had already been severed and is therefore not deemed to have been included in the description under which the tax payments were made. Claybrooke v. Barnes, 180 Ark. 678, 22 S. W. 2d 390, 67 A. L. R. 1436.

As to the Feldt & Maytag interest the decree is affirmed; as to the Laney interest the decree is reversed and the cause is remanded for the entry of a decree consistent with this opinion.

George Rose Smith, J.,

on rehearing. In asking for a rehearing Feldt & Maytag insist that they have a valid title to a one-eighth interest in the minerals (or at least in the oil) despite the payment of taxes by the Hays and Newton heirs.

The argument is to this effect: In 1919 Charles Richardson executed an oil, gas, and mineral lease upon his 240 acres, reserving a one-eighth royalty in all oil produced by the lessee. In 1921 the lessee drilled a producing oil well upon a different forty-acre tract from the one involved in this case, and oil has been produced from that well ever since. In 1957 the Richardson heirs conveyed a one-eighth interest in the minerals to Feldt & Maytag.

It is now contended that the continuing production of oil from one forty-acre tract in the lease had the effect of vesting in the lessee constructive possession of all the minerals (or perhaps of all the oil) throughout the 240 acres covered by the lease. This constructive possession would, it is argued, inure to the benefit of the Richardsons as lessors. Hence, the -appellants say, the Hays-Newton tax payments could not amount to constructive possession of the Richardsons’ one-eighth mineral interest, for the Richardsons already had constructive possession by reason of their lessee’s production upon an adjacent forty.

We are unable to agree with the basic premise in the appellants’ argument, that a lessee’s production of oil from one tract within a lease amounts to constructive possession of all the oil throughout the leasehold. This view was recently taken in Kentucky, Diederich v. Ware, Ky., 288 S. W. 2d 643, but we regard the contrary decisions as sound. Sanford v. Alabama Power Co., 256 Ala. 280, 54 So. 2d 562; Piney Oil & Gas Co. v. Scott, 528 Ky. 51, 79 S. W. 2d 394; Davis v. Federal Land Bank, 219 N. C. 248, 13 S. E. 2d 417; Dartmouth, Earl, v. Spittle, 24 Law Times N. S. 67. Our present conclusion is in harmony with our holding in Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d 728, and, by analogy, with the rule that the lessee’s development of part of the leasehold does not excuse his failure to develop the rest. Ezzell v. Oil Associates, 180 Ark. 802, 22 S. W. 2d 1015; Standard Oil Co. v. Giller, 183 Ark. 776, 38 S. W. 2d 766.

Both the petition for rehearing filed by Feldt & Maytag and that filed by the Hays-Newton heirs are denied.


author: Jim Johnson, Associate Justice.

text:
    Bangs v. Partee.
    5-2412
    346 S. W. 2d 466
    Opinion delivered May 22, 1961.

      Ben B. Williamson (deceased) and Ivan Williamson, for appellant.

      Hubert J. Meachum, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from an order of a Chancery Court sustaining a demurrer to a petition for injunction.

On the 20th day of September 1960, appellant, Hubert Bangs, filed his petition against appellees, Gerald V. Partee, and Bebecca Partee, husband and wife, alleging as follows:

‘ ‘ That on the 18th day of August 1960, the petitioner entered into a written contract with Mrs. Cleo Gray, a widow of Batesville, Arkansas, through and by which he rented and leased from the said Cleo Gray a stone quarry for the purpose of quarrying and removing all the merchantable building stone in, on and under the following described land in the village of Marcella and in Stone County, Arkansas, to-wit:

“ (Describing Land.)

“That under said contract the petitioner agreed to go in and on said land and open up a rock quarry and to pay to the Party of the First Part, Cleo Gray, One and 50/100 ($1.50) Dollars per square for all stone, mined, quarried and removed from the premises. That no time limit was placed on said lease hut that said lease was to continue in full force and effect until mutually rescinded by the parties or so long as sufficient building stone was left in quantity in and on said quarry and it was further agreed and understood by the parties that said quarry rights should be exclusive and that the petitioner should have the right of free access and entry in and on said lands and free exit therefrom so long as he should operate said rock quarry.

‘ ‘ (A copy of the contract was made a part of the petition.)

“Petitioner states that after the signing of said con-. tract he prepared to move in and on said land for the purpose of opening said rock quarry when the respondents, Gerald Y. Partee and Rebecca Partee, husband and wife, who hold an agricultural lease on said land executed to them by the above named Cleo Gray dated November 7,1957, warned and forbade petitioner to enter on said land and open a rock quarry and informed him that under their (respondents) lease they had the sole and exclusive right to said stone quarry as well as the sole and exclusive right to quarry, cut and remove any and all building stone in and on said premise and that the petitioner under his lease from the said Cleo Gray had no right to enter on said land for any purpose and that if petitioner undertook to enter in and on said land for any purpose he would be stopped at the threshold by the respondents.

“Petitioner further states that he tried to arrange for a bulldozer to be brought in on said premises for the purpose of bulldozing the surface dirt and rock but that the respondents contacted the parties and ordered them not to try to bring said bulldozer in on said land for any purpose. That this action and conduct on the part of the respondents has had the effect of depriving the petitioner from entering in and on said land under his said lease. That the petitioner would have been able to have made $30.00 per day or more if he had been permitted on said land for the purpose of quarrying, cutting and removing said building stone from said quarry and the the respondents by their unauthorized, unilateral and illegal actions in the premises had caused the petitioner to lose the sum of $300.00 or more, which he could have easily made but for the hinderance and interference to his operations by the respondents and that he should recover from the respondents in this action the sum of $300.00' and all further sums proved by him, by way of damages.

“Petitioner further states that he has no clear, complete and adequate remedy at law in the premises and in fact has absolutely no remedy except by the remedy of injunction and that unless the respondents, Gerald V. Partee and Rebecca Partee, are restrained and enjoined from hindering, molesting and interfering with petitioner in any way in his legal operation of said rock quarry, petitioner will suffer irreparable damages and will continue to suffer such damages day by day unless he is granted injunctive relief to prevent and deter the respondents from further molesting him in the operation of said rock quarry under his contract and lease with the said Oleo Gray the owner of said land.

“Wherefore, petitioner prays that on a hearing in this cause he be granted a temporary injunction to enjoin, restrain and prevent the respondents Gerald Y. Partee and Rebecca Partee, from molesting, hindering and in any way interfering with petitioner in his operation of said rock quarry; what he be awarded damages and the sum of Three Hundred and No/100 ($300.00) Dollars already suffered by him on account of the interference, molestation, conduct and actions of the respondents therein and that on the final hearing of this cause in term time by said injunction be made final and perpetual and for such other and further relief, including cost to which the petitioner may be entitled herein.”

To this petition appellant demurred on the grounds that: “the petition does not state facts sufficient to constitute a cause of action so as to bring the case within the recognized principles of equitable jurisdiction; therefore no equitable rights exist and the petitioner is not entitled to the relief sought by him in this court. ’ ’

After a hearing, the trial court sustained the demurrer. Appellant elected to stand on his original petition and declined to plead further. The petition was thereupon dismissed by the court. From such order comes this appeal.

The general question as to whether appellant’s petition stated a cause of action is not argued' or controverted by appellees in their brief. While appellees do not specifically admit that the petition states a cause of action, they confine their argument to the proposition that the Chancery Court doesn’t have jurisdiction of the subject of the action, that of issuing injunctive relief on the allegations of the petition filed by appellant. From the matters before us the question to be determined by this Court is confined to the question of whether appellant’s petition states facts sufficient to bring the case within the recognized principles of equitable jurisdiction and/or whether appellant has an adequate, remedy at law.

In his petition appellant states in general terms that he has no remedy at law and that he will suffer irreparable injury or damage. Appellant admits that the appellees have been in possession of the involved lands for a period of almost three years under a lease dated November 7, 1957. He asks that the Court remove appellees from their possession and quiet enjoyment of the lands and put him in possession under the terms of appellant’s contract or lease from the same lessor, such lease being dated August 8, 1960. The only damages appellant refers to in his petition are money damages and he measures the amount at Thirty Dollars or more per day. Appellant, while admitting in his petition that appellees hold an agricultural lease on the involved lands, complains that he was prevented from moving a bulldozer upon the property for the purpose of bulldozing the surface dirt.

From the allegations set out above, we find that the injury complained of by appellant is not of such a peculiar nature that compensation in money cannot atone for it; consequently, it cannot he considered an irreparable injury. Little Red River Levee District No. 2 v. Thomas, 154 Ark. 228, 242 S. W. 552; Ahrent v. Sprague, 139 Ark. 416, 214 S. W. 68.

Therefore, we conclude that appellant has an adequate remedy at law. Comer v. Woods, 210 Ark. 351, 195 S. W. 2d 542; the remedy being that of ejectment in which the rights, if any, can be determined under his contract or lease, and by which he can obtain possession of the involved lands and be compensated for damages by the wrongful possession of appellees if he is so entitled to such relief. It follows that the decree is affirmed without prejudice to appellant’s right to proceed at law, if a cause of action can be stated. See Barrentine v. The Henry Wrape Company, 113 Ark. 196, 167 S. W. 1115.