author: J. Fred Jones, Justice.

text:
    Lloyd L. HAYS et ux v. Ottis WATSON et ux
    5-5557
    466 S. W. 2d 272
    Opinion delivered May 3, 1971

      Walter R. Niblock and Truman Smith, for appellants.

      Charles W. Atkinson, for appellees.
   J. Fred Jones, Justice.

This appeal originates from a suit in the Washington County Chancery Court brought by the appellees Ottis Watson and his wife against the appellants, Lloyd L. Hays and his wife to enforce restrictive covenants contained in a bill of assurance, and for an injunction against the use of a septic tank sewage disposal system installed by Hays on lots purchased from Watson. The chancellor granted the relief prayed and we agree with the chancellor.

The facts are briefly these: In 1960 Ottis Watson and his wife, Helen, subdivided some land they owned in Washington County and platted it into 105 residential building lots dedicated to the public as Bird Haven Terrace Addition to the City of Fayetteville. On June 23, 1960, they filed for record a bill of assurance for Bird Haven Terrace Addition, the pertinent provisions of which, as applied to the case at bar, are as follows:

“2. No lot shall be used except for residential purposes, no building shall be erected, altered, placed, or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars.
7. No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance nuisance to the neighborhood.
11. No lot shall be used or maintained as a dumping ground for rubbish, trash, garbage or other waste shall not be kept except in sanitary containers. All incinerators or other equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition.
12. No individual sewage-disposal system shall be permitted on any lot unless such system is designed, located and constructed in accordance with the requirements, standards and recommendations of State Approval of such system as installed shall be obtained from such authority.
14. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five years from the date these covenants are recorded for successive periods of 10 years unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.
15. Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenants either to restrain, violation or to recover damages.”

The above provisions are obviously deficient in punctuation and sentence structure but their meaning, as relates to this case, is clear.

Block “F” of Bird Haven Terrace Addition consists of 14 lots consecutively numbered from south to north along the east boundary line of the Addition. Lloyd L. Hays and his wife, Joan, own land immediately east of Bird Haven Terrace Addition and their west boundary line coincides with the east boundary line of Block “F” in Bird Haven Terrace Addition. Mr. and Mrs. Hays maintain a trailer park on their property and as of the date of trial, they had 52 trailers in the park. About June 3, 1969, Mr. and Mrs. Hays purchased from Mr. and Mrs. Watson, through a Mrs. Elizabeth Beaty, Lots 3 and 4 in Block “F” of Bird Haven Terrace Addition. Prior to the purchase of the lots Hays had plans and specifications prepared for a septic tank sewage disposal system designed for the lots and to accommodate or service 45 of his trailer spaces. Immediately following the purchase of the lots, Mr. and Mrs. Hays started construction of their sewage disposal plant, thereon, resulting in the decree as already stated and as hereafter more specifically set out. Mr. and Mrs. Hays have designated the following points on which they rely for reversal:

“That the appellees did not sustain their burden of proof in presenting clear, cogent, and decisive evidence as to the alleged violation of the covenants in the bill of assurance.
It was error for the court to overrule the appellants’ demurrer to the evidence.
That the appellees did not present clear, cogent and decisive evidence of any irrepairable damage.
That the court did not give sufficient weight to the appellants’ compliance with all State and local building requirements for a sewage disposal system.”

None of the testimony is abstracted in this case, nor is the bill of assurance abstracted. It is rather difficult for any one of the seven members of this court to whom has been assigned the transcript along with a set of briefs, to circulate the transcript among the other six members of the court for a determination of whether the appellee has sustained his burden of proof by the evidence, or whether the court erred in overruling a demurrer to the evidence, or whether evidence is clear as to damage, or for any other purpose necessary to a clear understanding of the case. It is even more difficult and time consuming for the six members of the court to whom the case has not been assigned, to review the evidence from a single, and in many instances, a voluminous record. See Hurley v. Owens, 238 Ark. 874, 385 S. W. 2d 636.

In the case at bar, however, the excellent memorandum opinion with which the chancellor has favored us enables us to avoid the unpleasant duty of applying our Rule 9 (d). As a matter of fact, we have thoroughly examined the chancellor’s opinion and his application of the law to the evidence recited, so nearly coincides with our own opinion, that we adopt it as the opinion of this court.

Before quoting the chancellor’s opinion, however, we emphasize that this was originally an action for the enforcement of restrictive covenants in a bill of assurance and was not, as might be interpreted from the appellants’ argument, a suit to enjoin or restrain the creation of a prospective nuisance. After stating some of the facts as above set out, the chancellor continues:

“Hays commenced preparations for construction of his sewage disposal system in April, 1969, before he acquired title to lots 3 and 4 (Stp. Ex. No. 8), and by June 9, 1969, or shortly thereafter construction had commenced. At some time, not certainly fixed by Watson, he observed excavation on lots 3 and 4, and upon inquiry of Hays, learned its purpose, and upon voicing his objections was told by Hays that the latter had authority from the city, and Hays may have told him he had authority from the state, as well. It is not shown that plaintiff had any knowledge of the projected construction before he saw the excavation. This suit for injunction was filed on August 26, 1969, at which time, according to Hays, the total job was about 2/3 completed, and was completed about two months later.
At the time construction commenced in June, 1969, plaintiff still owned 94 of the original 108 lots. Prior thereto, all of the unsold lots were listed for sale at $850.00 per lot, with The Stanton Company, a licensed real estate brokerage business in Fayetteville. No lots have been sold since construction started; The Stanton Company, by letter to Watson, October 16, 1969, (Plf. Ex. 1) advised that persons theretofore prospectively interested in buying all of Bird Haven Terrace were no longer interested, in view of completion of the sewer system on lots 3 and 4. Plaintiff, on his own account, has made no lot sales when the fact of the sewer system was discovered by prospects. It is shown that one residence was under construction on a lot diagonally across the street from lots 3 and 4, after the sewer system construction was commenced, but the only evidence in the record (Watson’s) is that this lot was sold before Hays started his construction.
There is no evidence that the sewer system has thus far caused any noxious or offensive odors, no manifestation of surface percolation of sewage effluent, nor that the surface of lots 3 and 4 presents other than a generally grassy and green appearance. Evidence by the city plumbing inspector indicates that the field was properly laid out and should function properly.
Watson contends in essence, that Hays’ actions are a clear violation of the covenants in the Bill of Assurances; that the existence of the sewer system has inhibited his sale of lots, and that he is entitled to protection and enforcement of the Bill of Assurances.
Hays contends that no nuisance condition has in fact been created or made manifest, no damage has been suffered by Watson; and that it would be inequitable to enforce the covenants against him under these harmless conditions, and after he has expended substantial sums in construction.
The general rule governing the interpretation, application and enforcement of restrictive convenants of the kind here considered is that the intention of the parties as shown by the covenant governs. 20 Am. Jur. 2d 755, ‘Covenants, Conditions, etc.,’ Sec. 186. The rule of strict construction against itself limited by the basic doctrine of taking the plain meaning of language employed.
The latest reported Arkansas case squarely in point is Casebeer v. Beacon Realty, 248 Ark. 22, where, after stating the strict construction rule, it is said, at page 26:
‘This doctrine was recognized by this court in Faust v. Little Rock School Dist., 224 Ark. 761, 276 S. W. 2d 59, wherein we said that where there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from restraint would be decreed. We have also held that when the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed and that it is improper to inquire into the surrounding circumstances or the objects and purposes of the restriction for aid in its construction.’
This latter language is consonant with general authority, as stated in Am. Jur. 2d (supra) Sec. 187:
‘. . . but such strict rule of construction shall not be applied in such a way as to defeat the plain and obvious purpose of the restriction.’
The plain purpose of the restrictions in this case, particularly set out in item 2 of the Bill of Assurances, above quoted, is to limit the use of each lot in Bird Haven Terrace to single family, residential purposes. Item 12 of the Bill of Assurances prohibits an ‘individual sewage disposal system’ on any lot unless it meets with ‘State approval.’
These two items must be read together, and can mean nothing other than that a single family residence on each lot (no more permitted) can have only a single disposal system. * * * The covenants mean,..quite clearly, one dwelling house, one septic tank sewage disposal system.
The conclusion is inescapable that the construction of numerous septic tank sewage disposal systems on and under lots 3 and 4, even without dwelling houses, is a plain violation of the plain, unambiguous restrictions of the covenants. It is equally plain that the purpose of the restriction is to prevent such multiple systems, as a matter of general assurance and protection to all lot owners in the addition, whether a demonstrable nuisance condition exists or not.
On the question of damages to Watson, as a requisite to injunctive relief, it is true that the loss of lot sales by Watson is only speculative. But the general rule does not require a showing of damages. Again referring to Am. Jur. 2d (supra) Sec. 350:
‘As a general rule, it is not necessary to show damages in order to obtain equitable relief against violations of a restrictive covenant.’
The fact remains that no lots have been sold, and the only evidence of record as to why is the existence of the large sewage disposal field. Defendant Hays’ cited case of Ryall v. Waterworks, 247 Ark. 431, is riot in point. That case dealt with attempted injunction against a prospective nuisance, not the enjoining of violation of a restrictive covenant.
On the related point of Watson’s right to have mandatory cessation and/or removal of Hays’ sewage disposal network, as against Hays’ money investment, the text writer in Am. Jur. 2d, Sec. 313 says:
‘Mere pecuniary loss to the defendant, as a result of the enforcement of a restriction will not prevent a court of equity from enforcing it.’ Cited as footnote support for this statement is Storthz v. Midland Hills Land Co., 192 Ark. 273. In that case, this language appears:
‘It has been held . . . that the fact that the restricted property is of less value for residential purposes than it would be for some other purpose is no valid reason to ignore the restriction.’
Thus, here, while lots 3 and 4 may be of little or no value to Hays for residential purposes, and the fact that he has chosen to render them less valuable by expending his money for purposes violative of the restrictions, is no valid reason for denying Watson the right of enforcement, even though it be costly to Hays. To the same general effect, see the con-eluding paragraph in the opinion of Robertson v. Berry, 248 Ark. 267.
The court concludes that plaintiffs are entitled to the relief sought, insofar as continuation of use of the entire sewage disposal system on lots 3 and 4 is concerned. Defendants will be enjoined from such use henceforth.
Because the restrictive covenant is addressed to the limitation of only one system per lot, no harm is seen to plaintiffs, nor any violation of covenant effected, if Hays desires to use his existing system as a sewage outlet for a single residence only, on each lot; in this case, one of his mobile home units. Or, if he should build a dwelling on either lot, that dwelling is entitled to be served, as a single unit, by such system as is now in place.
No further protection would be afforded Watson by requiring Hays to dig up and remove all of the existing system; Hays may do so if he wishes as, for example, to cut his losses, but he will not be required to do so.
It is therefore, ordered, adjudged and decreed that the defendants, Lloyd L. Hays and Joan C Hays, be, and they are hereby enjoined from using and operating their private sewage disposal system installed underground on Lots 3 and 4, Block F, Bird Haven Terrace, a subdivision in the City of Fayetteville, Arkansas, and said defendants be, and they are hereby ordered, to disconnect the discharge lines running from their' mobile home park upon their adjoining property to said sewage disposal system within sixty days after this date, and in disconnecting said lines running from their mobile home park to the septic tank or tanks located on said Lots 3 and 4, Block F, Bird Haven Terrace it shall be done in such a manner that they cannot be reconnected.
It is further ordered, adjudged and decreed that the said defendants, Lloyd L. Hays and Joan C. Hays, husband and wife, be, and they are hereby permanently enjoined from using their sewage disposal system located on Lots 3 and 4, Block F, Bird Haven Terrace to serve any portion of their said mobile home park and said sewage system may be used only to serve not more than two single family residence units, only one of which may be located on each of said lots.
The costs of this action are assessed against the defendants.”

The decree is affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Ike VAN METER v. Emma Murphy ADDINGTON et al
    5-5560
    466 S. W. 2d 249
    Opinion delivered May 3, 1971

      W. G. Dinning Jr., for appellant.

      David Solomon, for appellees.
   Conley Byrd, Justice.

Appellant Ike Van Meter acquired a State tax deed from thei State Land Commissioner under the following description:

“Parts of Section Exc. 1A W of RR SW M NE M Sec. 22 Twp. 2S, Range 3E, Acres 24, lOOths .00 year for which forfeited 1966.”

In a quiet title suit by appellees Emma Murphy Adding-ton and Deborah White, the trial court held :the description void. We affirm for the reasons stated in Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118 (1917), Halliburton v. Brinkley, 135 Ark. 592, 204 S. W. 213 (1918), and Irby v. Drusch, 220 Ark. 250, 247 S. W. 2d 204 (1952).

Affirmed.


text:
    Frank Nall v. STATE of Arkansas
    5590
    466 S. W. 2d 252
    Opinion delivered May 3, 1971

      Louis W Rosteck, for appellant.

      Ray Thornton, Attorney General; Milton R. Lueken, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Frank Nall appeals from a circuit court order denying his petition for relief under our Criminal Procedure Rule 1. Nall was tried by the court on one of several charges for receiving stolen property and was found guilty. The other charges were not pursued. In his petition and his testimony, Nall alleged that he requested, in fact demanded, a jury trial, which demand was ignored in violation of his constitutional rights. No record was made at the trial. In addition to his testimony, the court heard the contrary testimony of his then counsel and the special judge, and found that appellant had intelligently waived his right to a jury trial. We find fhat the record fully supports the action of the circuit court.

Affirmed.


author: Frank Holt, Justice.

text:
    PINE BLUFF NATIONAL BANK v. FIRST FEDERAL SAVINGS & LOAN ASS’N of Pine Bluff and Billy E. Parker
    5-5566
    466 S. W. 2d 249
    Opinion delivered May 3, 1971

      John Harris Jones, for appellant.

      Coleman, Gantt, Ramsay ir Cox, for appellees.
   Frank Holt, Justice.

This is an appeal from an order setting aside a judgment during term time.

Pine Bluff National Bank, appellant-garnisher, sued appellee Billy Parker on a debt and secured a writ of garnishment against appellee-garnishee First Federal Savings & Loan Association of Pine Bluff. The garnishee’s answer disclosed that Billy Parker had $11,-231.53 on deposit. Subsequently, a consent judgment in favor of the appellant and against Parker was entered December 1, 1969. This consent judgment recited that Parker owed appellant $24,600 for which he had executed three notes payable in installments. The garnishee was furnished a copy of the judgment which ordered it to hold the $11,231.53 (except for interest and dividends) until the further order of the court. The judgment provided that upon 61 days default by Parker in payment of any installment, the court would then enter an order requiring the garnishee to pay over the $11,231.53 to appellant. Billy Parker approved and signed the judgment.

When Parker defaulted, the court rendered a judgment on April 17, 1970, ordering the garnishee to pay the impounded funds to appellant. On July 2, 1970, the garnishee filed a motion to set aside this judgment, alleging that its original answer mistakenly stated that Parker had $11,231.53 on deposit when in fact, the deposit was a joint account in the name of Frank or Billy Parker; that the mistake was discovered after the April judgment against the garnishee; that the judgment should be set aside and the garnishee be permitted to file an amended answer stating that the joint account existed and making both Parkers parties to the action.

In resisting the motion, the appellant asserted that in negotiating the December consent judgment with Billy Parker it had relied upon the truth of garnishee’s answer that Parker had a $11,231.53 deposit with it; that appellant had extended credit to Billy Parker based upon his signed financial statement that he had a $10,000 savings account with the garnishee in July 1967; that the garnishee was served with a copy of the December 1969 consent judgment; that the garnishee acknowledged by letter the receipt of the December order and in the letter stated that it would comply with the terms of the order; that Frank Parker had knowledge that the joint account was impounded by the court’s order and he had not intervened in the action.

On September 18, 1970, during term time, the trial court, finding that sufficient cause was shown, set aside the judgment entered on April 17, 1970. From that order, which also granted appellee-garnishee leave to file an amended answer, appellant-garnisher appeals. Appellant contends that the trial court erred in failing to show good cause or reasonable diligence to justify setting aside the judgment. We find no merit in this contention. Our long-established rule recognizes the inherent right of a court of record to set aside its judgment during term time, without assigning a cause. Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797 (1949); Stinson v. Stinson, 203 Ark. 888, 159 S. W. 2d 446 (1942); Browning v. Berg, 196 Ark. 595, 118 S. W. 2d 1017 (1938); Union Sawmill Co. v. Langley, 188 Ark. 316, 66 S. W. 2d 300 (1933); Ashley v. Hyde, 6 Ark. 92 (1845).

Nor can we agree with appellant that Robbins v. Guy, 244 Ark. 590, 426 S. W. 2d 393 (1968) supports its contention. In Robbins we were concerned not only with the policy of allowing the trial judge to set aside a judgment rendered during term time but also with the public policy of enforcing the stability of a judicial sale. In that situation we said the court did not possess unlimited discretion. No similar situation exists in the case at bar. In Hill v. Wilson, supra, we recognized that: “We have repeatedly held that, during the term of court at which a judgment is rendered, the court has the inherent power to set aside the judgment, and it may do so without stating any cause.” This well-established recognition of the inherent power of our courts is applicable in the case at bar. This is in accord with the general rule that during term time a judgment is “within the breast of the court” and the judgment can be set aside during that term. Hawkeye Tire & Rubber Co. v. McFarlin, 146 Ark. 491, 225 S. W. 632 (1920); 8 ALR 3d § 4, p. 1291.

Appellant-garnisher also submits that the consent judgment created contractual duties between it and the appellee-garnishee which could not be dissolved by the motion to set aside the judgment; thus, the setting aside of the judgment against the appellee-garnishee was error. Appellant argues that the December consent judgment, which Billy Parker approved and signed, operated as an assignment or pledge of the Parker savings account, which judgment garnishee accepted. Appellant asserts that Billy Parker, by the terms of the signature card, had the right to “first act” and by doing so had released the garnishee loan company of a depositor’s claim. Thereupon, the garnishee owed duties to the appellant independent of the writ of garnishment. We do not reach the merits of this contention as to contractual rights because in our view the order setting aside the judgment was not a final or an appealable order within the meaning of Ark. Stat. Ann. § 27-2101 (Supp. 1969). The order merely permitted appellee-garnishee leave to amend its answer. It did not release the funds. The garnishee was ordered, as in the December consent judgment against Billy Parker, to hold the funds pending further proceedings. The trial court’s order setting aside the judgment was based upon the pleadings and one exhibit (depositor’s card). It did not purport to determine the rights of the parties in respect to the impounded funds. See Hawkeye Tire & Rubber Co. v. McFarlin, supra. As we said in McPherson v. Consolidated Cas. Co., 105 Ark. 324, 151 S. W. 283 (1912): “Cases cannot be tried by piecemeal, and one cannot delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may then be taken, but not before.” See, also, 8 ALR 3d § 3, p. 1287 and Hicks v. Light, 229 Ark. 306, 314 S. W. 2d 479 (1958). Appellant’s assertion that contractual rights resulted from the December and April judgments pertains to the rights and liabilities of the parties and should be adjudicated at a trial on the merits.

Being prematurely taken, the appeal is dismissed.

Harris, C. J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Farmer L. BLACK v. STATE of Arkansas
    5584
    466 S. W. 2d 463
    Opinion delivered May 10, 1971

      Skillman ir Furrow; By: Vincent E. Skillman, Jr., for appellant.

      Ray Thornton, Attorney General; John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Farmer L. Black, appellant herein, was charged by the Prosecuting Attorney of the Second Judicial District with the separate offenses of Kidnaping and Sodomy, it being alleged that these offenses were committed on March 5, 1970, in Crittenden County. On trial, Black was acquitted of the sodomy charge but was convicted of kidnaping under Ark. Stat. Ann. § 41-2302 (Repl. 1964), and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of ten years. From the judgment so entered, appellant brings this appeal. For reversal, three points are asserted which we proceed to discuss, though not in the order listed by appellant.

It is first alleged that the court erred in permitting the prosecuting attorney to question Black relative to a charge of rape in Tennessee. The record reveals the following on cross-examination:

“Q. Were you guilty of homicide in 1958, in Memphis, Tennessee?
A. No, sir.
Q. Were you convicted of that charge?
A. No, sir.
Q. You were not? All right. Now then, you say that you did not forcefully have sexual relations with Stephanie? [given name of the alleged victim in the present case] Is that correct? You did not put that gun to her stomach and tell her to strip her clothes off, you were going to make love to her?
A. I did not.
Q. You did not do that? You are guilty of having raped a twenty year old married woman on March 1, 1970, are you not, Mr. Black, in Memphis, Tennessee?
A. No sir, I am not guilty of that charge.”

It is appellant’s contention that the last question was reversible error since that charge is only pending against Black, not yet having been tried. We do not agree, and have held contrary to this contention in several cases. It will be noted that the prosecutor did not ask Black if he had been indicted or charged with raping a woman in Memphis, but rather asked him if he were not guilty of that offense. We have held that one cannot be asked if he has been indicted, or charged, or accused, of other crimes, but for the purpose of testing credibility, one may be asked if he has been convicted of a particular offense, or if he was guilty of some particular offense. The state is bound by the answer that the witness gives. See Johnson v. State, 236 Ark. 917, 370 S. W. 2d 610, and cases cited therein. See also the recent case of Hughes et al v. State, 249 Ark. 805, 461 S. W. 2d 940.

It is also asserted that there was no corroboration of the testimony of the prosecuting witness relative to being kidnaped and the jury verdict was nothing more than speculation and conjecture. Again we disagree, actually for two reasons. In the first place, there was corroboration of the kidnaping. John Connors Donovan, who was traveling with the young woman allegedly assaulted, testified that the two, hitchhiking, were picked up by appellant on the highway; after driving for a few miles, appellant stopped the car, said that he had to check his tires, and then pulled out a rifle and pointed it at the witness. Donovan stated that Black then pointed the gun at the young woman, told her that he was in the mood for love, and that she was to take' off her clothes. When this happened, she opened the door and ran down the highway; Black chased her, and Donovan started running the other way. He heard a woman screaming, started back toward the car, but heard the car door slam and the car “took off”. Donovan then reported the matter and officers were notified. Subsequently, the officers located the car parked on a gravel road, the young woman jumping out of the automobile and running to the officers, and Black getting out after being ordered several times to do so, and after the officers had fired a warning shot. Black was completely nude except that he was wearing one sock. The woman had been severely beaten in the face.. There was certainly corroboration, but actually, the woman not being an accomplice, no corroboration was necessary. See Bradshaw v. State, 211 Ark. 189, 199 S. W. 2d 747. Of course, if the prosecuting witness accompanied Black voluntarily, there simply was no kidnaping, but the jury heard the evidence of both the state and appellant, Black stating that she went with him of her own accord, and this conflict was a matter for jury determination.

Finally, it is argued that under the statute defining kidnaping, the acquittal of appellant on the charge of sodomy rendered it impossible as a matter of law for appellant to be guilty of the crime of kidnaping. We find no merit in this argument. The statute does not require that the defendant consummate the felonious act before being guilty of kidnaping; it only requires that the forcible stealing or taking of the victim be done for the purpose of committing a felony. And even when all the proof offered on behalf of the prosecution shows that the act was consummated, and the proof on the part of a defendant shows that the offense did not take place, it has been held that one can still properly be convicted of an attempt to commit the offense. In Lindsey v. State, 213 Ark. 136, 209 S. W. 2d 462, the evidence on the part of the state reflected that the defendant was guilty of the crime of rape; on the other hand, the defendant denied that he acted improperly in any manner from a sexual standpoint. There was absolutely no evidence that he simply attempted a rape but failed to consummate the act; nonetheless, we affirmed his conviction for assault with intent to rape In the California case of People v. Fisher, 157 P. 7, Fisher was charged with kidnaping, it being asserted by information that he unlawfully, feloniously, and forcibly enticed and carried away a certain named person, with the intention to restrain such person, and thereby to commit extortion and robbery. It was contended by the appellant that such a purpose was not accomplished and that he could not be found guilty of the offense, but the court disagreed, stating:

“Of course, it is not necessary for the purpose charged in the information to be accomplished in order to make it effectual as an element of the crime. All that is required is that some overt act be done toward the execution of the purpose and the fulfillment of the intent. The forcible removal of Mr. Henderson and the other preparations indicated by what was found in the automobile satisfy the requirement of the law in that respect. It may be illustrated by the proof of intent in burglary. Therein if the defendant is charged with the entry of a building with intent to commit larceny there must be the overt act of entering the building before a conviction can be had, but from this entry under suspicious circumstances the jury may infer the intent to commit larceny, although no larceny was actually accomplished.”

See also Crum v. State, 101 S. W. 2d 270 (Texas), where it was held in a prosecution under the statute dealing with kidnaping for extortion, that it was immaterial whether the criminal enterprise was successful or unsuccessful, since the intent tó commit was sufficient to constitute the offense.

So, it was only necessary, in order to convict appellant of kidnaping, that the state show that the young woman was forcibly taken by appellant for the purpose of committing a felony, and though the jury found that the felony had not been committed, it does not follow that Black could not have been guilty of a felonious purpose. It might be added that it was not necessary that the jury even find that there was an intent to commit sodomy, for the kidnaping information only charges that Black’s purpose was to commit a felony. There is evidence that Black endeavored to commit the crime of rape, but was unsuccessful because of his physical inability to perform the act. In fact, Black himself testified that he was unable at the time to perform the act of intercourse, though he stated that the woman was willing.

In nowise was the charge of kidnaping dependent upon the charge of sodomy. The two are entirely separate offenses, and it was not necessary that the sodomy charge be filed in connection with the kidnaping. In the recent case of Umbaugh v. State, 250 Ark. 50, 463 S. W. 2d 634, the appellant was prosecuted under this same kidnaping statute and the proof on the part of the state reflected that Umbaugh kidnaped a young female for the purpose of raping her. As in the instant case, he was only charged with kidnaping “for the púrpose of committing a felony’’, and though the proof on the part of the state reflected a consummated rape, no charge of rape was ever filed. This court affirmed Umbaugh’s conviction for kidnaping.

Likewise, in the California case of People v. O’Ferrell, 325 P. 2d 1002, the California court (District Court of Appeal, Fourth District) stated that the commission of a kidnaping for the purpose of robbery is separate and distinct from the crime of robbery, though the latter crime is the object of the kidnaping.

From what has been said, it is apparent that we find no reversible error.

Affirmed.

Fogleman, J., not participating.

       The prosecuting witness said that Black struck her several times with the rifle.

       Ark. Stat. Ann. § 41-2302: “Every person, either as principal or accessory, who shall unlawfully or forcibly steal, take or arrest any man, woman or child in this State and carry or transport him or her, against his or her will, from one place to another place in this State, or from his or her usual and customary place or abode, or from his or her usual and customary place of work or occupation, in this State, to another place in this State or into another State or territory for the purpose of extortion, ransom, robbing, maiming, torturing or of committing any felony or for the purpose of preventing or thwarting arrest or detection after having committed a felony or after having aided, abetted, or assisted in committing a felony, in this State, either as principal or accessory, shall be deemed guilty of kidnaping.”


author: George Rose Smith, Justice.

text:
    Billy N. HARLAN et al v. C. W. CURBO Guardian ad Litem for Jan Curbo a Minor
    5-5526
    446 S. W. 2d 459
    Opinion delivered May 10, 1971

      John D. Eldridge and Terral, Rawlings, Matthews ¿r Turtle, for appellants.

      Hodges, Hodges <b Hodges, for appellee.
   George Rose Smith, Justice.

The three plaintiff-appellants, Billy N. Harlan, his wife, Cherry Harlan, and their five-year-old son, Robert Harlan, brought this action for personal injuries and property damage sustained when their car ran into the back of a car being driven by the minor appellee, Jan Curbo. The collision occurred on Highway 33 at a point several miles south of Augusta. It was the plaintiffs’ theory that Curbo negligently backed out of a driveway onto the highway and had just started moving forward when his vehicle was struck from behind by the oncoming Harlan car.

The case was submitted to the jury on interrogatories. The jury apportioned the total negligence in the ratio of 40% to Billy N. Harlan and 60% to young Curbo. The verdict fixed the plaintiffs’ total damages at $750 for Billy N. Harlan, $1,000 for Cherry Harlan, and zero dollars for Robert Harlan. In appealing from the judgment upon the verdicts the Harlans contend that the amount of each verdict is demonstrably inadequate. The three appellants present separate contentions, which must be discussed individually.

First: Billy N. Harlan’s verdict for $750. According to the undisputed proof, this verdict is inadequate. It was stipulated that the damage to Harlan’s car amounted to $784.50. In addition, Harlan suffered a deep cut on his scalp, which was closed by 13 surface stitches and a number of additional subcutaneous stitches. The doctor’s original treatment took from 30 to 45 minutes, and Harlan had to return a few days later for the removal of the outer stitches. Yet the jury’s verdict, fixed without regard to any issue of comparative negligence, was less than the stipulated property damage. The judgment therefore falls within the rule that the recipient of a substantial but inadequate award is entitled to a new trial if other prejudicial error is shown. Smith v. Ark. Power & Light Co., 191 Ark. 389, 86 S. W. 2d 411 (1935).

Such other error does appear. Even though Curbo’s car had just begun to move forward, the court gave AMI 902, Civil, with respect to the superior right of the forward vehicle. In the circumstances the giving of that instruction was error, because no specific applicable purpose for which Curbo supposedly had a superior right to the use of the highway existed, and consequently no such purpose was inserted in the instruction. In Smith v. Alexander, 245 Ark. 567, 433 S. W. 2d 157 (1968), we pointed out that such a specific purpose must be inserted whenever the instruction is used.

The court also erred in instructing the jury that in passing upon the question of the plaintiffs’ negligence the jurors might take into consideration the fact that seat belts were available for the plaintiffs’ use. The only evidence about seat belts was a statement that such belts were available, at least for Mr. and Mrs. Harlan, and that the belts were not fastened at the time of the collision. The court had already given AMI 305B, Civil, explaining the duty of all persons involved in the occurrence to use ordinary care for their own safety. The additional reference to the Harlans’ failure to use seat belts not only was an unnecessary duplication but also singled out a particular fact for undue emphasis. Rutland v. P. H. Ruebel & Co., 202 Ark. 987, 154 S. W. 2d 578 (1941).

The two erroneous instructions that we have mentioned may have led the jury to attribute to Billy N. Harlan a greater percentage of the total negligence than should have been the case. Harlan’s judgment must therefore be reversed and the cause remanded for a new trial.

Second: Cherry Harlan’s verdict for $1,000. With respect to this verdict there is no prejudicial error. The two erroneous instructions already discussed were not prejudicial to Mrs. Harlan, because the court ruled that Mrs. Harlan, as a passenger in the car, was not guilty of negligence. Therefore the court did not submit the issue of her possible negligence to the jury. Since the two erroneous instructions touched only upon the matter of negligence, they did not adversely affect the jury’s consideration of Mrs. Harlan’s claim. (It is true that the seat belt instruction should have referred to Billy N. Harlan only, rather than to “the plaintiffs.” That inaccuracy of wording would doubtless have been corrected had a specific objection been made, but no such objection was interposed.)

Thus in Mrs. Harlan’s case the jury returned what she considers to be an inadequate award, though it is substantial. No other error appears. If Mrs. Harlan had any damages that were subject to exact pecuniary measurement, their total amount was decidedly less than the jury’s award of $1,000. Hence her case falls within the statutory ban against the granting of a new trial when the only asserted error is the inadequacy of a verdict upon a claim for damages not subject to precise measurement. Ark. Stat. Ann. § 27-1902 (Repl. 1962); Munson v. Mason, 245 Ark. 686, 434 S. W. 2d 815 (1968).

Third: The jury’s failure to award any damages to Robert Harlan. According to the undisputed proof this child suffered only minor bruises that required neither treatment nor medication. The jury evidently found the injuries to be so trivial as not to justify an award of compensatory damages. Hence in Robert’s case the jury inserted in the form of verdict a finding of zero damages.

It is now insisted that Robert was entitled at least to nominal damages. In the only case cited by counsel, however, we were dealing with a property right stemming from the plaintiffs’ ownership of land. Adams v. Adams, 228 Ark. 741, 310 S. W. 2d 813 (1958). In that situation an award of nominal damages serves a real purpose, for it establishes the property right in issue and lends force to the decree as a final adjudication in favor of the prevailing party. See, for example, Brown v. Bradford, 175 Ark. 823, 1 S. W. 2d 14 (1927), where we observed that “a new trial will not be granted for a failure to assess nominal damages where no question of a permanent right is involved.”

In the case at bar no permanent right is involved, the only asserted cause of action being for an injury caused by negligence. Robert Harlan suffered an injury so slight that the jury did not see fit to dignify it by an assessment of compensatory damages. We must therefore adhere to our usual rule, that the trial court’s failure to award nominal damages is not reversible error. Reese v. Haywood, 235 Ark. 442, 360 S. W. 2d 488 (1962); Wells v. Adams, 232 Ark. 873, 340 S. W. 2d 572 (1960).

Reversed as to Billy N. Harlan; affirmed as to Cherry Harlan and Robert Harlan.


text:
    Charles SHINSKY v. STATE of Arkansas
    5581
    466 S. W. 2d 909
    Opinion delivered May 10, 1971
    [Rehearing denied May 31, 1971.]

      Tinnon, Crain ir Neimic, for appellant.

      Ray Thornton, Attorney General; Milton R. Lueken, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was sentenced to four years imprisonment upon a jury verdiet finding him guilty of illegal possession of narcotic drugs; namely, marijuana and LSD. The drugs were discovered by police officers while they were searching a trailer occupied by Shinsky. The principal argument for reversal is that the magistrate who issued the search warrant did not have sufficient proof before him to justify the issuance of the warrant.

The rules of law that were controlling when this search warrant was issued are well settled. A search warrant might then be issued on the basis of oral testimony. Tygart v. State, 248 Ark. 125, 451 S. W. 2d 225 (1970). (Act 123 of 1971 now provides that the warrant be issued only upon affidavit.) The proof may consist of hearsay information, but in that event the magistrate must be furnished with underlying facts sufficient to enable him to exercise his independent judgment about the validity of the informant’s conclusions and about the reliability of the informant’s source of information. Spinelli v. United States, 393 U. S. 410 (1969); Aguilar v. Texas, 378 U. S. 108 (1963).

Two witnesses testified at the hearing below on the defendant’s motion to suppress the evidence. James D. Lester, a Criminal Investigator for the State Police, obtained the search warrant from Judge Engeler, the municipal judge at Mountain Home. Officer Lester identified the affidavit that he submitted to Judge Engeler, which simply stated that certain drugs would be found on Shinsky’s person and in his trailer, which was sufficiently identified. The affidavit alone would not have been a sufficient basis for the issuance of the search warrant.

Judge Engeler, before issuing the warrant, placed Officer Lester under oath and heard his testimony. Lester’s testimony before the judge was to this effect: On the night of May 20, 1970, Lester was informed by John Tumage that three persons—Tim Winkler, Larry Corbin, and an unidentified woman—had apparently been under the influence of narcotics at Turnage’s residence. Officer Lester interviewed Winkler and the woman, who admitted the truth of Turnage’s statements. The two also said that they had gone to a place known as Popeye’s, in Memphis, Tennessee, to obtain drugs for themselves and for several others, one of whom was the defendant Shinsky. Winkler said that he had personally delivered drugs to Shinsky and to others. Winkler also said that the drugs would be consumed at Shinsky’s trailer on the evening of May 21. Under the authority of the warrant the officers searched the Shinsky trailer on that evening and found the drugs.

The other witness at the hearing was Judge Engeler, who corroborated Officer Lester’s testimony. Upon the basis of that proof, which was not contradicted, the circuit judge held that Judge Engeler had had before him sufficient proof to sustain the issuance of the warrant.

We agree with the trial court. As Officer Lester pointed out, Turnage’s statements were later verified in every detail by other evidence. Both Tim Winkler and the woman appeared to have direct first-hand knowledge of the facts which they related to the officers. Popeye’s place was already known to the police as an outlet where illegal drugs could be purchased. Taking the testimony as a whole, we are convinced that Judge Engeler had before him sufficient evidence to enable him to reach his own independent conclusion that the underlying facts supported Officer Lester’s belief that Shinsky had illegal drugs in his possession and that Lester’s informants were credible and reliable sources of information. Therefore Judge Engeler was justified in finding the existence of probable cause for the issuance of the warrant.

Secondarily, the appellant contends that the trial court should have granted a continuance to permit the accused to obtain the testimony of Tim Winkler. On the date of the trial Winkler was apparently in the military service, at an overseas station. Shinsky’s motion for a continuance did not disclose either what Winkler’s testimony would be or when he would be available as a witness. There is nothing in the record to suggest that Winkler’s testimony would be favorable to the accused; in fact, the implications are to the contrary. In the circumstances no abuse of the trial court’s discretion in the matter has been shown. Fisher v. State, 241 Ark. 545, 408 S. W. 2d 894 (1966), cert. den. 389 U. S. 821 Ark. 545, 408 S. W. 2d 894 (1966), cert. den. 389 U. S. 821 (1967); Maxwell v. State, 216 Ark. 393, 225 S. W. 2d 687 (1950).

Affirmed.


author: Lyle Brown, Justice.

text:
    ARKANSAS POWER & LIGHT CO. v. Edward M. FURLONG et al
    5-5530
    466 S. W. 2d 476
    Opinion delivered May 10, 1971

      Hduse, Holmes ir Jewell, for appellant.

      Botts <h Jenkins, for appellee.
   Lyle Brown, Justice.

For the purpose of erecting an electrical substation and distribution line appellant, by eminent domain proceeding, took slightly less than two acres out of a comer of appellees’ farm. The jury fixed just compensation at $4,500. Appellant contends there was no competent and substantial evidence to support the verdict.

The only witness for the landowners who placed a monetary value on the lands taken was John Gunnell. He has been circuit clerk since 1938 and as such is the ex-officio recorder of deeds and mortgages. He said he had a general knowledge of land sales throughout the county by virtue of the deeds coming through his office. As ex-officio commissioner in chancery he said he had sold considerable real estate at public sale and “I have bought and sold a little myself.” Then in 1967 Gunnell became a licensed realtor. Operating under that license he has since sold a few parcels of property.

Gunnell fell short of being qualified to testify as a value witness in this case because of his unfamiliarity with the land taken. He had never been on the subject lands. He had not made a study to determine the highest and best use of the property taken. He was not aware that appellant power company had in years past purchased a right-of-way across the two-acre tract under consideration. That easement was one hundred feet in width and extended the entire length of the tract. A high voltage transmission line running into DeWitt is erected thereon. When that fact was revealed to the witness he had this to say about value:

Q. Mr. Gunnell, you are saying it is worth thirty six hundred dollars with nothing on it?
A. Yes, sir.
Q. Now I am asking what would it be worth with something on it.
A. With what on it.
Q. Arkansas Power and Light Company’s right-of-way a hundred feet wide across it?
A. I don’t know.

Following the recited testimony the witness was again taken on direct examination and he changed his approach to market value. He said he would deduct from his previously stated just compensation the cost of the right-of-way, which was $1,500. He insisted that “some type of industry” could be placed on the lands taken and the right-of-way could be used as a parking lot.

For the reason discussed—witness’s unfamiliarity with the land—we agree with appellant that his value testimony was insubstantial. Whether his evidence was substantial was not a question of fact but one of law. Arkansas State Highway Comm’n. v. Byers, 221 Ark. 845, 256 S. W. 2d 758 (1955). Gunnell testified to a conclusion based on a cursory look at the property in driving by it. See Arkansas State Highway Comm’n. v. Ptak, 256 Ark. 105, 564 S. W. 2d 794 (1965).

Appellant says the only competent testimony on just compensation was that of their witness, William A. Payne. We are asked to adopt his figure of $1,200 and enter judgment accordingly. That we cannot do. Payne used the before and after value which involved the Furlong tract of 240 acres. Since no damages to the remainder were claimed the “value of the part taken” rule was the appropriate rule to follow. Arkansas Louisiana Gas Co. v. Burkley, 242 Ark. 662, 416 S. W. 2d 265 (1967); Lazenby v. Arkansas State Highway Comm’n., 231 Ark. 601, 331 S. W. 2d 705 (1960).

Reversed and remanded for new trial.


text:
    Charles SHINSKY v. STATE of Arkansas
    5582
    466 S. W. 2d 911
    Opinion delivered May 10, 1971

      Tinnon, Crain dr Neimic, for appellant.

      Ray Thornton, Attorney General; Milton R. Lueken, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Charles Shinsky was charged with aiding four persons to escape from the county jail by supplying them with hacksaw blades. He was convicted, fined, and given a jail sentence. Ark. Stat. Ann. § 41-3511 (Repl. 1964). Appellant contends that his motion for a continuance should have been granted, that the court erred in compelling one of the escapees to testify against the wishes of the escapee, and that the evidence was insufficient to support a verdict.

During the night of August 23, 1970, four prisoners lawfully in custody escaped from the Baxter County jail. A string from a mattress was lowered out the window and someone on the ground tied two hacksaw blades thereto. When a sufficient opening was made the prisoners lowered themselves to the ground by means of a rope made from quilting. The four escapees were captured the next day. They were Leonard O. Naugle, Howard L. Estes, Glenn Sheley, and Ronald Smith. Three of the four men testified for the State. Since the sufficiency of the evidence is attacked we will relate the essential testimony and in the light most favorable to the State.

Leonard Naugle testified that he gained his freedom by the use of hacksaw blades; that they were tied to a string by some person unknown to him; and that one of the blades was found on his person at the time of arrest. Glenn Sheley said that early in the night he talked to Charles Shinsky about bringing some hacksaw blades to the jail but received no reply. He denied having made a statement to the deputy prosecutor that Shinsky brought the blades to the jail. He said he stated that if Shinsky in fact brought the blades there he probably got them from the elder Shinsky’s cabinet shop.

The third escapee called as a witness by the State was Howard Estes. He was asked if he was one of the escapees of August 24 and he declined to answer “on the grounds that it might incriminate me.” That statement resulted in a hearing in chambers. There it was revealed that Estes was charged in the same court with violating the escape statute and had not yet been tried. Ark. Stat. Ann. § 41-5513. He did not want to testify in the instant case because he was fearful his testimony would tend to prejudice him in his case. It was also shown that Estes had, prior to trial, signed a waiver and had given a written statement to the prosecuting attorney. The waiver and statement were given on advice of Estes’s attorney. When those circumstances came to light, Estes’s attorney, who was present at the hearing, withdrew any objection to Estes testifying. Back on the witness stand Estes still refused to answer those questions which he thought might result in prejudice to him. Then he was asked about his signed statement in which he recited that Sheley asked Shinsky to bring the blades and that Shinsky returned in a few minutes with them. The statement further recited that Estes threw a string out the window and pulled it back up after Shinsky tied the blades to it. When asked by the prosecutor if he made those statements he replied “that’s what it reads there.” There was no objection by appellant to the described line of questioning.

Douglas Shutt testified that on the night of the escape he drove to the jail accompanied by Shinsky; that Shinsky wanted to talk to Glenn Sheley; that Shinsky got out of the car and went over near the jail and conversed with Sheley; and that Sheley told Shinsky to bring some hacksaw blades to Sheley, to which request Shinsky nodded in the affirmative. After that conversation Shutt said he drove to Shinsky’s house trailer. Shutt said he asked Shinsky if he was going to take the blades to the jail and that Shinsky responded “I don’t know.” Shutt left alone.

We have no hesitancy in saying there is no merit in appellant Shinsky’s contention that there is no substantial evidence to support the verdict.

Appellant’s contention that the trial court erred in refusing to grant a motion for continuance is likewise without merit. Appellant was arrested August 24, 1970. He was freed on bond within three days. On September 3 he appeared in court with his attorney and entered a plea of not guilty. On the eve of trial he filed his motion for continuance, asserting that his attorneys needed more time to prepare his defense. That motion was overruled and appellant was put to trial on September 16. From the date of appellant’s arrest until the trial date almost four weeks intervened in which he could prepare for trial. The motion for continuance simply stated the conclusion that appellant’s counsel “have not had adequate time in which to prepare a defense.” We find no abuse of discretion. Nash v. State, 248 Ark. 323, 451 S. W. 2d 869.

We now come to the third and final point for reversal. ■ It is contended that the trial court erred in compelling Howard Estes to testify against appellant when Estes claimed his constitutional right to remain silent. The right to claim the privilege was personal to Estes and appellant cannot claim the privilege or take advantage of any error of the court in denying the privilege to the witness Estes. 8 Wigmore, Evidence § 2196 (McNaughton rev. 1961); Bowman v. United States, 350 F. 2d 913 (1965); United States ex rel Berberian, 300 F. Supp. 8 (1969). There are a host of other cases to the same effect and they can be found in the cited authorities.

Affirmed.


author: John A. Fogleman, Justice. Carleton Harris, Chief Justice,

text:
    INTERNATIONAL PAPER COMPANY v. Carl J. TIDWELL
    5-5555
    466 S. W. 2d 488
    Opinion delivered May 10, 1971

      Gaughan, Laney, Barnes & Roberts, for appellant.

      Smith, Williams, Friday ¿r Bowen; By: G. Ross Smith, for appellee.
   John A. Fogleman, Justice.

Two questions are presented on this appeal. The first is whether the Arkansas Workmen’s Compensation Commission has jurisdiction of this claim—or more properly stated, whether the Arkansas Workmen’s Compensation Law can be applied. The second is whether the claimant Tidwell has suffered a compensable injury. The commission held against appellant on both points. There has been no determination that appellee has suffered a permanent disability resulting from accidental injuries. This matter was reserved until the commission hears additional evidence as to the end of the healing period and as to permanent disability. The only award made is for compensation for a period from August 8, 1968, through September 22, 1968 and from October 17, 1968, until a date to be later determined and for medical expenses incurred as well as those to be incurred for additional medical treatment to be arranged by International Paper Company through Dr. Jim Moore.

The first is a mixed question of law and fact. Insofar as the factual determinations are involved, the findings of the commission are binding upon the courts if there is any substantial evidentiary support. Voss v. Ward’s Pulpwood Yard, 248 Ark. 465, 452 S. W. 2d 629. We must accept that view of the facts which is most favorable to the commission’s findings. Albert Pike Hotel v. Tratner, 240 Ark. 958, 403 S. W. 2d 73. Where fair-minded men might honestly differ as to the conclusion to be drawn from facts, either controverted or uncontroverted, the drawing of inferences and reaching of conclusions are for the commission, not the courts. Guynn v. Helena Hospital, 240 Ark. 56, 398 S. W. 2d 526. The commission found it had jurisdiction because appellee was a citizen and resident of Arkansas both prior to and at the time of his injuries, was paid under the supervision of appellant’s Arkansas office, was paid his wages in Arkansas and the contract of employment was entered into in Arkansas. There was substantial evidence to support these findings.

Tidwell was born in Arkansas. He was employed by the United States Corps of Engineers for 10 years prior to his employment by International. He was operating a bulldozer at Lake Ouachita in this previous employment when he applied for a job at appellant’s regional office in Camden, Arkansas. He took a physical examination at Camden to meet appellant’s requirements. He testified that he considered- Hot Springs, Arkansas, to be his home. He had no family, except for his parents who lived at Mt. Ida, Arkansas. He did not live with them. Tidwell reported to work at Jefferson, Texas, on Monday, June 24, 1968, as a member of a five-man crew of which one Wells was foreman. Wells’ orders and directions came from the Camden office. Paychecks of all employees of International working in Texas and other parts of the Western Region are issued from Camden. When Tidwell needed medical attention after August 7, he returned home and went to Dr. Lon E. Reed at Hot Springs, under whose care he remained for four weeks. When his doctors advised him to return to work, he went back to Jefferson and worked September 23 and 24. He suffered a recurrence of his earlier symptoms, had to be relieved from driving a bulldozer, and returned home to Hot Springs. Subsequently, at the suggestion of Grady Collier, appellant’s Road Maintenance Foreman for its Western Region, he drove a dump truck at Hampton, Arkansas, about two weeks, after which he felt that he was unable to continue in that work. All his medical treatment has been in Arkansas.

Tidwell testified that he left his job in Arkansas on Friday before reporting to his new employer in Texas on Monday. His work required him to move from place to place in Texas and to obtain a place to live in each. While in Texas he lived at Jefferson in a room in a private home for three or four days in June, at Carthage in a motel for about three weeks and at Center in a boarding house for about two weeks just prior to August 2. All of these are within a radius of 30 miles. Orders for these various job assignments came from the Camden headquarters. All of the members of Tidwell’s crew lived in private homes, boarding houses or motels and had to find new places to live as they moved about their territory.

The Western Region of International encompasses Arkansas, the eastern half of Louisiana, east Texas and a part of Oklahoma. Its headquarters are at Camden, and Tidwell was hired by Collier there. He was employed to work in Texas and considered a regular member of his crew in one of the districts there. Each district has its on management. The road foreman for Intemational’s entire Western Region lives in Arkansas, but his duties take him over the entire region. The International employee with whom Tidwell roomed while he worked at Hampton was a Texas resident. Tidwell was treated as a Texas employee by International. The timekeeper,. who had responsibility for payroll, insurance and compensation matters for the company had his office at Camden. Tidwell was covered by the company’s workmen’s compensation insurance in Texas, and his wages reported to the State of Texas for that purpose. The company uniformly carried its workmen’s compensation insurance on those employed to work in a particular state in that state. It contends that, since Tidwell was employed to work in Texas and suffered whatever injury he did suffer in that state, Texas law governs. Since the evidence, when given its strongest probative force in favor of the commission’s findings of fact, is substantial, as we have illustrated, the question becomes one of law.

We have never directly passed upon this question. In approaching it, we have no specific statutory provision to govern us as do most other states. See I Schneider, Workmen’s Compensation Text, Chapter 5; 3 Larson, Workmen’s Compensation Law 375, et seq., §§ 87.00, et seq. Workmen’s compensation is governed wholly by statute, so unless we find a statutory basis for entertainment of a claim, an employee must be left either to his common law remedy or to the compensation laws of another state when the injury took place in that state. Ark. Stat. Ann. §§ 81-1323 (b) (Repl. 1960) and 81-1325 (b) (Supp. 1969) contain the only express mention of extraterritoriality in our act. In the former section, we find clear recognition that a claim may be allowed when the accident took place outside the state if compensation is payable under the act. Then the hearing may be held either in the county of the employer’s residence, or of his place of business or of greatest convenience as determined by the commission. The later section only provides that appeal from the commission’s action goes to the circuit court of the county in which the hearing was had when the accident occurred outside the state. It should be noted that there is no limitation in these sections on the nature of out-of-state accidents which may be heard by the commission. Consequently, we must turn to other provisions for any limitations there might be. If there is a limitation it must be found in provisions having to do with coverage. Insofar as the facts of this case are concerned: an employee is one in the service of an employer under a contract of hire, Ark. Stat. Ann. § 81-1302 (b) (Repl. 1960); an employer is one Carrying on an employment, Ark. Stat. Ann. § 81-1302 (a) (Repl. 1960); and employment means every employment carried on in the state, Ark. Stat. Ann. § 81-1302 (c) (Repl. 1960). Liability for compensation is based upon disability or death from injury “arising out of and in the course of employment.” Ark. Stat. Ann. § 81-1305 (Repl. 1960).

In considering these statutory provisions and definitions, we must construe and apply them liberally in favor of a claimant in the light of the beneficent and humane purposes of the act, resolving all doubtful cases in his favor. Reynolds Metals Co. v. Brumley, 226 Ark. 388, 290 S. W. 2d 211; Arkansas Nat. Bk. v. Colbert, 209 Ark. 1070, 193 S. W. 2d 806; E. H. Noel Coal Co. v. Grilc, 215 Ark. 430, 221 S. W. 2d 49; Donaldson v. Calvert McBride Printing Co., 217 Ark. 625, 232 S. W. 2d 651; Clemons v. Bearden Lumber Co., 236 Ark. 636; 370 S. W. 2d 47; Clemons v. Bearden Lumber Co., 240 Ark. 571, 401 S. S. 2d 16; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S. W. 2d 113; Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579. Liberality of construction with reference to individual rights under our act is resorted to whenever obscurity of expression or inept phraseology appears and, given a restrictive construction, would have the effect of defeating praiseworthy purposes that undoubtedly actuated our lawmaking body. Massey v. Poteau Trucking Co., 221 Ark. 589, 254 S. W. 2d 959. See also McGehee Hatchery Co. v. Gunter, 237 Ark. 448, 373 S. W. 2d 401; Sallee Bros. v. Thompson, 208 Ark. 727, 187 S. W. 2d 956.

Recognized purposes of the act are to improve employer-employee relationships, to insure the security of employees following covered employment by substituting awards for losses sustained by reason of such employment which are more nearly proportionate to the loss and more certain and more satisfactory than former remedies in tort, to ameliorate the condition of disabled workers by shifting a part of the burden of accidents in covered employment to the public in general and to charge to the ultimate consumers a part of the loss from risks of such employment. Hughes v. Hooker Bros., 237 Ark. 544, 374 S. W. 2d 355; Hunter v. Summerville, supra; Williams Mfg. Co. v. Walker, 206 Ark. 392; 175 S. W. 2d 380. We have said that these purposes are based upon a contractual relationship and the public welfare. Gentry v. Jett, 235 Ark. 20, 356 S. W. 2d 736.

In considering cases involving out-of-state accidents, we have followed a policy of liberality rather than restrictiveness. In McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S. W. 2d 608, we held that a Mississippi resident, who was a traveling salesman for an Arkansas concern, injured in an accident in Mississippi, was entitled to pursue his claim against his Arkansas employer under Arkansas law in spite of the fact that he had been paid maximum benefits under Mississippi law for the same accident by a Mississippi employer. We also rejected a narrow and restricted construction when we said that an employment did not cease to be “carried on in this state” by reason of only temporary and incidental operations in another state, in holding that an employer was subject to the act, even though he did not have five employees, unless those working in Missouri at the time one of them was injured wei;e counted. Feazell v. Summers, 218 Ark. 136, 234 S. W. 2d 765. We also found no sound reason that the laws of a state in which an employee was injured could keep this state from discharging its contractual obligation under the Workmen’s Compensation Act to one of our citizens. Gentry v. Jett, 235 Ark. 20, 356 S. W. 2d 736.

In considering federal constitutional limits on application of state laws in compensation cases, Professor Larson points out six grounds on which the applicability of a particular compensation act has been asserted. They are:

(1) Place where the injury occurred;
(2) Place of making the contract;
(3) Place where the employment relation exists or is carried out:
(4) Place where the industry is localized;
(5) Place where the employee resides; or
(6) Place whose statute the parties expressly adopted by contract.

Professor Larson then expresses the opinion, which seems to be supported by authority, that the state which was the locus of any one of the first three items and perhaps of the next two, can constitutionally apply its statute if it wants to, in spite of “full faith and credit” attacks. 3 Larson’s Workmen’s Compensation Law 368, § 86.10.

Satisfaction of constitutional standards is not a sufficient basis for a state’s application of its own law. The state itself must make the application, or authorize it, by statute. Early decisions held that these statutes had no application to extra-state injuries without unequivocal statutory language making them applicable. See In re Gould, 215 Mass. 480, 102 N. E. 693 (1913). This approach is not in accord with the liberal construction view we take. Many later decisions have not followed the Massachusetts court. As early as 1915, the Connecticut Supreme Court recognized that no statute has extraterritorial effect unless the intention that it have is clearly expressed or reasonably to be inferred from the language of the act, but held that in determining whether such an inference was reasonable, its workmen’s compensation act was to be given a liberal construction to effectuate its remedial purpose and to be read in the light of its purpose, subject matter and history. That court found that a limitation of the act to compensation for intrastate injuries would tend to defeat the ends in view. On the other hand it found a reasonable inference that the legislature deemed the place of injury unimportant when it bottomed the right to compensation upon contract. In interpreting its act, that court found significance in the place of domicile of the injured party, the place of contract between the employer and employee and the location of the employer. The Connecticut act was not as extensive on the subject as ours, as it apparently limited filing of awards to the county in which the injury occurred and appeals to the superior court for the county in which the injury was sustained. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A. 372 (1915).

Most of the jurisdictions lacking specific and unequivocal statutory language have followed similar approaches. In Grinnell v. Wilkinson, 39 R. I. 447, 98 A-103 (1916), the court followed the Connecticut decision, saying that its own act should be read into every contract of employment between those subject to its terms. In reaching its decision the Rhode Island court mentioned the likelihood that one of its residents injured elsewhere would come home for treatment and prosecution of his remedy and would be subject to examination in Rhode Island.

In giving a liberal construction to the Iowa act, some emphasis was placed by the court upon a statutory provision like ours for compensation for any and all injuries sustained, without any limitation other than that they shall occur in the course of and arise out of the employment. Pierce v. Bekins Van & Storage Company, 185 Iowa 1346, 172 N. W. 191 (1919). [See Ark. Stat. Ann. § 81-1302 (d) (Repl. I960)]. Later the rule that out-of-state injuries were covered by the Iowa compensation act was extended to an employment carried on by the employee, an Iowa resident, wholly within the state of Oklahoma, as contemplated by the parties when the contract of employment was entered into in Iowa. Haverly v. Union Const. Co., 236 Iowa 278, 18 N. W. 2d 629 (1945). In that case, the Iowa office of the employer reimbursed the local office in Oklahoma for payroll disbursements approved in Iowa, general management and control was maintained in the Iowa office, and all bills were paid and books kept in the Iowa office.

In New Jersey, it was held that a contract of employment entered into in New Jersey with an employer maintaining a New Jersey office calling for services to be performed by a New Jersey resident exclusively in Pennsylvania, containing a provision that it be interpreted according to the laws of Pennsylvania, did not prevent New Jersey compensation law from entering into the contract by operation of law, regardless of the place where the compensable injury occurred. Gotkin v. Weinberg, 2 N. J. 305, 66 A. 2d 438 (1949).

It was also held that the Wisconsin commission had jurisdiction to make a compensation award to a Wisconsin resident who accepted an offer of employment by a Wisconsin corporation and immediately went to Michigan in furtherance of his employment, where he was injured. The court held that upon these facts, the status of employee and employer was covered under the Wisconsin act, even though no work was performed by the employee within Wisconsin. Julton-Kelly v. Industrial Commission of Wisconsin, 220 Wis. 127, 264 N. W. 630 (1936). See also Dunville v. Industrial Commission, 228 Wis. 86, 279 N. W. 695 (1938).

In New York, the rule seems to be that the New York laws are applied in cases of extrastate injuries to employees whose services are performed in another state if there are sufficient significant New York contacts, whenever the employment is not carried on at a fixed location. See Cameron v. Ellis Const. Co., 252 N. Y. 394, 169 N. E. 622 (1930); Nashko v. Standard Water Proofing Company, 4 N. Y. 2d 199, 149 N. E. 2d 859 (1958); Rutledge v. Kelly & Miller Bros. Circus, 18 N. Y. 2d 464, 223 N. E. 2d 334 1966); Shorr v. U-Wan-Na-Wash Frocks, 284 App. Div. 778, 135 N. Y, S. 2d 143 (1954); Baduski v. S. Gumpert & Co., Inc., 277 App. Div. 591, 102 N. Y. S. 2d 297 (1951); Burton v. Ziegler Pharma cal Corp., 9 App. Div. 2d 811, 192 N. Y. S. 2d 609 (1959); Levin v. Eutectic Welding Alloys Corp., 21 App. Div. 2d 925, 251 N. Y. S. 2d 127 (1964).

It is true that the acts in some of the above states are elective and that the employee in some cases from others either had previously performed employment for his employer in the state where the claim was asserted or did regularly perform a part of his duties in that state. None of them had more specific statutory prescription of extraterritorial application than we have. When we consider the interest that this state has in the welfare of its residents, in minimizing the likelihood of their becoming public charges or objects of local charity, in having a procedure for a remedy readily available to its residents, and in securing compensation to physicians and hospitals in Arkansas which might not otherwise be available to a claimant, we cannot say that reason and logic require a different approach to a liberal construction of our statute because of these limited dissimilarities, in spite of the fact that a different result has been reached in other jurisdictions, and the fact that the injury might be compensable under the laws of another state.

We have no hesitation in holding that where the contract of employment is entered into in this state between an Arkansas resident and an employer who is localized as a resident or who maintains an office which exercises general superintendence and control over the employment which is not carried on at a fixed location, the Arkansas Workmen’s Compensation Act applies and the Arkansas Workmen’s Compensation Commission has jurisdiction, even though the injury occurred in a state in which it was contemplated by the parties that the employment would be entirely performed. This result is consistent with our previous decisions earlier cited. It is also harmonious with Restatement of the Law, Conflict of Laws § 398.

The second point for reversal presents a close question. Appellant argues that appellee’s disabilities are attributable entirely to vascular disease and that his employment did not contribute in any way to his condition. Appellee contends that exertions required of him in the performance of the duties of his employment aggravated his condition and accelerated his disability, so as to provide the necessary causal connection. Appellant says, however, that whatever exertion was required of Tidwell only excited symptoms of his vascular disease but did not aggravate his condition or cause any damage to Tidwell’s system that was disabling. While the question is not free from doubt, and we might well have sustained a contrary finding by the commission, we cannot say that the evidence in support of the commission’s award, when all doubts are resolved in favor of the claimant, was not substantial.

Inasmuch as the question here is one peculiarly within the realm of scientific knowledge, we must find support in the medical testimony in order to say that the evidence of causal connection is substantial. We will review the evidence forming the background for medical testimony only to the extent necessary to connect Tidwell’s condition with his medical examinations and treatments. The commission related Tidwell’s disability to an occasion on August 5 when he crawled under a truck, furnished him by his employer for performance of his duties, to grease it, and to another occasion on August 7 when he assisted in putting a misaligned bulldozer track on its proper supports. It found that the claimant had some disabling residual paralysis from a pre-existing carotid vascular disease characterized by a syndrome of atheromatous plaques in the carotid artery, contributed to and aggravated by claimant’s work. Specific reference was made by the commission to the opinion of Dr. Jim Moore, a Little Rock neurosurgeon, that the immediate cause of the claimant’s blurring of vision and numbness in his left arm and leg was related to a decreased oxygen supply to appellee’s brain due to a marginal right carotid artery at a time when the brain demanded increased oxygenation because of increased body heat and exertion.

Tidwell satisfied his employer’s health requirements. He apparently worked without any difficulty until August 5 as a heavy equipment operator in a road construction crew, although he had not been feeling well for the last two weeks of the period. On August 5 he was driving a truck servicing tractors with water, fuel, oil and grease. He crawled under a bulldozer to lubricate some part and began to feel ill and to experience aching and numbness in his arms and legs and a blurring of his vision. He crawled out, lay down and rested for about an hour. Having no drinking water, he drove his truck to a place where other employees were working, drank some water, ate a part of a sandwich and helped load a water pump. His foreman cautioned him that he might be taking the “flu” and to be careful. He explained to his foreman that he had gotten awfully hot, that he really was not “working all that hard” but was out of water. The temperature was in the mid-nineties. Tidwell testified that his difficulties occurred while he was working in a hot sandy area which was exposed to the sun and from which any breezes were obstructed.

On August 6 he did only very light work by the direction of his foreman, but on August 7 went with his foreman to help five or six other employees in attempting to replace a misaligned bulldozer track. It was a hot day and all of the men thus employed were suffering from heat and resting in the shade at frequent intervals. He worked from 10:30 a.m. until 5:00 p.m. Tidwell said that he was overheated by this work, and could not even get up enough strength to use a grease gun. He told his foreman he had had enough and went home where he saw his Hot Springs physician the next day.

Tidwell did not see Dr. Moore until October 17, after he had driven a dump truck at Hampton for 13 days. He quit because the work on the narrow roads made him nervous and because he was having some difficulty with his vision. Dr. Moore diagnosed his disease in both carotid arteries. He attributed the basic cause to hardening of the arteries, which produced an abnormal collection of tissues or plaques in the arteries, which tend to cause an obstruction therein. When one’s arteries are thus obstructed, he will experience inter-mitten t episodes of numbness in the extremities, a tingling sensation in his hands and feet and some blurring of vision, according to Dr. Moore.

The disease is clearly not occupational. After the first episode, Dr. Reed, a general practitioner, had originally diagnosed appellee’s trouble as heat exhaustion, but later sent him to a neurosurgeon who only found a chronic syndrome attributable to plaques in a carotid artery. On his first examination, Dr. Moore found evidence of a partial paralysis of the left side of Tidwell’s body, which evidenced abnormality of the carotid artery. He found the extent of Tidwell’s development of hardening of the arteries unusual for his age. He stated that obstruction of the artery creates a swirling or eddy type of current in the blood flow, and in the carotid artery, and this affects the person’s brain. The plaques in the arteries are not caused by a single episode of exertion, but Dr. Moore felt that stress and aging are factors which have a bearing upon the condition. It was this physician’s opinion that the plaque causing Tidwell’s difficulties had been present and steadily progressive before his first episode in Texas; that Tidwell’s initial symptoms developed on the basis of aggravation from exertion; and that his exertion had required an increased oxygen supply in the brain. The following question was propounded and answer given by this doctor:

Q. Do you think becoming overheated would have had any effect on this condition by itself, just that one thing?
A. It could possibly. Certainly increasing body heat, increasing metabolism and increasing the need for oxygenation, and if a part is already at a point of tenuous supply, it’s more or less the straw that broke the camel’s back.

The doctor later stated:

A. * * * I think also, again going back to his history and perhaps wrongly assuming that August Five would be in the summertime, knowing some relatively very limited information as to the stress that is required on bulldozer procedure, that the immediate cause of this patient’s complaints as they were, blurring of vision, numbness of the left arm and leg, and, then, intermittent episodes of this was related to decrease in oxygen supply to the brain, and this in turn was due to the fact that he had a marginal artery in the first place to supply this. Therefore, I think stress is the thing that precipitated this man’s problem.
# * *
A. First of all, the plaque formation could have been increased by development of some soft clot, not complete; secondly, there could have been enough embarrassment of brain cell, and apparently were, was enough embarrassment of the brain cells for this patient to still be marginal in his ability to function, even at a more sedentary level of walking around, and I might say that I have recorded that he described this intermittent episode of numbness of the left arm and leg, that he felt it was more pronounced at a period of exertion than he did it recurring at other times.

The only other medical testimony of any significance was that of Dr. Reed who testified that heat precipitated Tidwell’s partial paralysis, and that he would not have advised a man with Tidwell’s condition to be out in the hot sun driving a bulldozer. Dr. Reed did say that one with Tidwell’s condition, whose blood circulation to the brain was substantially decreased, would suffer a minor stroke or strokes and have damage to the brain which might be evidenced by sudden aging, or a complete change of personality.

The closest analogy in our cases where awards are based on aggravation of a pre-existing condition are those where heart disease is involved. In most of them, the only real difference seems to be that the atheromatous plaques resulting from arteriosclerosis are localized in the arteries around the heart rather than in the carotid arteries as is the case here. Any obstruction resulting from these plaques seems to cause a deficiency in the oxygen supplied by the blood which affects the heart in one case and the brain in the other. The result is a heart attack or a stroke, of varying intensity, depending to some extent upon the extent and duration of the obstruction.

We have found substantial evidentiary support for awards in heart cases upon even less certain medical testimony. See Kearby v. Yarbrough Brothers, 248 Ark. 1096, 455 S. W. 2d 912; Bradley County v. Adams, 243 Ark. 487, 420 S. W. 2d 900. We found “accidental injury” where there had been a collapse on the job resulting from unusual exertion or strain by a worker having a pre-existing ailment in such cases as Dougan v. Booker, 241 Ark. 224, 407 S. W. 2d 369. This case is closely parallel to Reynolds Metals Co. v. Cain, 243 Ark. 483, 420 S. W. 2d 872, involving a disability from a myocardial infarction. There the claimant twice had to quit his work because of pains in his chest and arms. The medical testimony supporting the claim was to the effect that the claimant’s exertion on the job placed demands upon his heart which could not be met by his arteries which were diseased because of arteriosclerosis and that this might well have aggravated a pre-existing coronary insufficiency, the ultimate result of which was precipitation of a myocardial infarction. In another such case, we found substantial evidence of causation in medical testimony that an employee’s work activities before he became ill, particularly longer than usual hours, may have contributed to his massive coronary occlusion due to arteriosclerosis from which he had suffered for about five years. The doctor there, on cross-examination, stated that in his personal opinion he thought that the work of that day was a contributing factor. Georgia-Pacific Corporation v. Craig, 243 Ark. 538, 420 S. W. 2d 854. Of course, we have long held that any work aggravation of an existing arterial disease which hastens either injury or death is compensable as arising in the course of, and out of, the employment. Reynolds Metals Co. v. Cash, 239 Ark. 489, 390 S. W. 2d 100. It is consistent with our holdings in these cases involving heart ailments due to arteriosclerosis to say that the testimony of the physicians, relating to precipitation of a partial paralysis and the likelihood of brain damage (or embarrassment of brain cells) because of demands for increased oxygen supply to the brain brought on by stress and unusual exertion by Tidwell in the conditions under which he was working, constitutes substantial evidence of aggravation or acceleration of his pre-existing condition resulting in some injury or damage to support a finding of causal connection, insofar as his disability is concerned. It must be remembered that as yet there has been no finding that Tidwell suffered any permanent disability as a result of this aggravation or acceleration of his condition.

The judgment is affirmed.

Harris, C. J., dissents.

Byrd, J., dissents only as to the question of jurisdiction.

Carleton Harris, Chief Justice,

dissenting. I do not reach the question of jurisdiction, since it is my opinion that claimant did not suffer a compensable injury. Tidwell’s difficulties were occasioned by diseased carotid arteries, and from the way I read the record, the work he was doing only caused the symptoms of that disease to appear. The numbness he described and the blurring of his vision were simply symptoms of a partially blocked artery, and in fact, these symptoms enabled the correct medical diagnosis to be made. I cannot find from the record any disability that he suffered. The disability occasioned by a blocked artery is a stroke, and no one contends that Mr. Tidwell suffered a stroke. In fact, in the testimony of the physician relied upon by appellee, Dr. Jim Moore, there is frequent use of the word, “symptoms”. For instance, in his January 3, 1969, report, Dr. Moore described his diagnosis as follows:

“Basically, it is my feeling that this patient, although he had some pre-existing atheromatous plaque in the carotid arteries, had an aggravation of his symptoms [My emphasis] by the exertional episodes required in his working activities as outlined and as occurred on or about August 5, 1968.”

Further:

“I don’t think the plaque itself was caused by a single episode of exertion; stress, aging, all of these factors have to bear. I think this patient’s symptoms, [My emphasis] as they developed, were on a basis of aggravation from exertion.”

Still further:

“I feel this plaque had been present for an indefinite and undetermined period of time, had been steadily progressive, likely. Probably, certainly, had been there before this episode, but I think that the fact that the exertion tended to require an increase in oxygen supply to the brain, it’s most likely to cause this patient’s initial symptoms, [My emphasis] so far as the history as was given to me.”

It is interesting to note that during a six weeks period when Tidwell was not working at all, he still complained that his arms and legs were ‘‘going to sleep” and his vision was not good. I repeat that these were simply symptoms of the disease, which had progressed at that time to an extent that these symptoms appeared at rest as well as at work.

I would reverse.

       There is no evidence that Tidwell had any knowledge of this fact or that he consented to this coverage.

       An excellent discussion of the problems involved, and approaches taken and factors considered in solving them will be found in American Conflicts Law by Dr. Leflar, §§ 158, 159, 160 and 161.