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J. Pi:kd Jonrs, Justice. This is an appeal from a judgment of the Independence County Circuit Court setting aside a jury verdict and granting a new trial, in a personal injury suit brought by Cleo M. Clark against the Missouri Pacific Railroad Company. The question is whether the trial court abused its discretion in setting aside the verdict and granting a new trial. Cleo M. Clark was employed by Rangaire Corporation at its limestone quarry in Izard County, Arkansas. The Missour Pacific. Railroad Company had constructed, and continued to help maintain, a spur track from its main line track through a cattle guard and upgrade to the quarry operations. The railroad company would switch railroad hopper cars from its main line to the end of the spur beyond the loading tipple at the quarry, and the empty cars were then moved by gravity, as they were needed, back to the loading tipple where they were loaded with limestone. After the cars were loaded, they were coupled together in pairs and moved by gravity, two at a time, downhill to where they were left standing oil the end of the spur near the main line until they were picked up and pulled away by Missouri Pacific. It was a part of Clark’s duties to ride the loaded cars from the loading tipple down to the main track -where he coupled them to the loaded cars already set out on the end of the spur. In removing the loaded cars from the quarry to the main line, they moved by gravity, and Clark rode the front end of the car in front and controlled their speed by the hand brake on the front car. The moving cars were permitted to strike the stationary cars with sufficient force to “make up” the coupling. There was a rather sharp curve in the spur track near a cattle guard close to the main hire and the outside rail on this curve was not super-elevated. On the day of Clark’s injury, six loaded cars had been set out near the main line and the hand brakes had been set on three of them. As Clark brought two additional loaded cars, coupled together, down the spur track from the quarry, he was riding on the front end of the front car as usual, and as this car struck the first of the six stationary cars, the couplings failed to make proper connection but missed each other completely and as the ends of the two cars came together Clark was caught between the two cars and injured. Following the accident it was found that the outside rail in the curve on the spur track had twisted over, drawing the spikes from the crossties on the inside of the outside rail and leaving the wheel flanges of the front truck on the outside of the curve resting on the web of the turned rail between the ball and the turned up flange of the rail. The wheels on the opposite side of the truck dropped from the rail on the inside of the curve and three of the crosstios were marked by the flanges of the wheels on that side. After the accident the wheels of the truck on the collision end of the stationary car were found in the same position on the rails as were the wheels on the moving car. The drawn spikes, the marked crossties, the twisted rail and the impact between the cars occurred near the cattle guard and on the curve in the track. The physical damage to the track extended from the quarry side of the cattle guard twelve or fourteen feet through the cattle guard to where Clark was removed from between the ends of the two cars. Clark filed suit against the railroad company for personal injuries alleging negligence in failure to properly elevate the outside rail on the curve, and in failure to properly maintain the track, resulting in the rail twisting over under the weight and normal slow speed of the car and thereby causing the couplers on the two cars to bypass each other upon impact. The railroad company answered by general denial and the allegations of assumption of risk and contributory negligence in Clark’s failure to apply proper brake restraint on the moving cars and permitting them to gather more speed than the track was designed to take, and in Clark’s failure to align the couplers so that they would properly meet and “make up” on impact and not bypass each other in the curve. Prior to the trial of the case, the discovery deposition of Clark had been taken and portions of the deposition were copied on separate paper by the railroad company attorney. Clark testified at the trial and parts of his deposition were also read into evidence. Neither actual deposition nor the excerpts therefrom were offered as exhibits in evidence at the trial. During the argument to the jury the railroad company’s attorney gave to the jury the excerpts he had prepared from the discovery deposition without first presenting the document to Clark’s attorney for inspection or to the court for approval. The instrument presented to the jury contained the same questions and answers that liad been read into evidence but not in the same order. No objection was made to this procedure by Clark’s attorneys and no instruction or admonition was requested thereon. The railroad’s motion for a directed verdict was overruled by the court, and the jury returned a verdict on interrogatories finding Clark 80% negligent and the railroad company 20% negligent. The jury found that Clark liad sustained damages in the amount of $32,-720.00. Clark filed a motion for a new trial alleging prejudice by the placing of the excerpts from the depo sition in tlie hands of the jury and for the further reason that the apportionment of the negligence was contrary to the preponderance of the evidence. The motion for a new trial was granted by order of the trial court in general terms, and on appeal to this court, the railroad company relies upon the following points for reversal: “I. The trial court erred in granting appellee Clark a new trial, because: A. To affirm the granting of a new trial under circumstances presented by this record would accord trial courts unlimited discretion in setting aside jury verdict. B. Appellant’s argument was proper. C. Appellee waived any error in appellant’s argument by neither objecting thereto nor requesting a mistrial prior to the jury’s verdict. D. Appellee failed to support his motion for new trial by affidavits as required by law. II. Appellant’s motion for a directed verdict should have been granted.” The question here is not the amount of discretion we would accord trial courts by affirming this case. The question is whether the trial court abused the discretion ■it already had in granting a new trial in this case. We are of the opinion that the trial court did not abuse its di scretion. While the motion for a new trial emphasizes the alleged impropriety of argument the appellant’s attorney made to the jury, the motion for a new trial also states as a ground therefor, that the verdict was contrary to the jjreponderance of the evidence. The appellate states in its brief that a reading of appellee’s motion clearly reflects that appellee sought and received a new trial because of alleged misconduct by appellant’s attorney in preparing and presenting to (he jury the Xerox copy of portions of appellee’s deposition, and the appellant argues that lack of verification as required by Ark. Stat. Ann. § 27-1905 (Repl. 3962) was fatal to appellee’s motion for a new trial. We find no merit in this contention. We have read appellee’s motion for a new trial, as well as the court’s order granting it, and we do not share appellant’s conviction that the motion was granted because of alleged improper argument to the jury. The pertinent portions of the motion are as follows: “(3) The movant was prevented from having a fair trial by reason of irregularity in the proceedings of the court when Mr. William Elclredge, the attorney for the defendant, at the beginning of his dosing argument handed to each juror copies of the attached memorandum without first having submitted same either to the court or to the opposing counsel. * * * (4) The plaintiff further moves for a new trial on the ground that, the answers to the interrogatory dealing with the negligence of Clark and the apportionment of such negligence is contrary to a preponderance of the evidence ...” The order granting the motion for a new trial provides : “On this 27th day of May, 1968, there comes on to be heard the motion of the plaintiff for a new trial under the provisions of Ark. Stats. Sec. 27-3.901, and the Court having considered the motion and having heard the arguments of counsel finds that the motion should be granted. IT IS THEREFORE CONSIDERED ORDERED AND ADJUDGED that the verdicts rend erocl herein on interrogatories submitted to the jury by the Court should be set aside and that the plaintiff be and he is hereby granted a new trial of the above styled cause.” As to the preponderance of the evidence, it would serve no useful purpose to quote extensively from the testimony, because we do not go into the preponderance of the evidence on which the trial court grants or refuses a motion for a new trial. We do not examine a record to determine what we would have done had we been sitting in the place of the trial judge, we examine the record for a determination of whether the trial court abused his discretion in taking the action he did. The appellee contends in this case that faulty track, under the weight of the cars, was the sole cause of the accident, and the appellant contends that it was solely caused by the excessive speed of the cars being moved by the appellee. Both the appellant and the appellee offered some testimony, and rather substantial circumstantial evidence, tending to sustain their respective theories. The appellee testified that he brought the cars from the loading tipple to the point of impact at the usual speed of about three miles per hour, and that at the time of the actual impact, the car he rvas riding on was barely moving. This is controverted to some extent by the physical evidence of damage to the cattle guard, markings on crossties, and inferences the jury could have drawn as to the force of impact. The appellee testified that he was looking down at the couplers as the cars slowly came together and that the couplers simply missed each other. From this testimony, together with the physical and circumstantial evidence following the accident, the jury could have found that the rail had already twisted throwing the couplers out of line before the cars came together. As to what caused the couplers to bypass each other, the appellant offered evidence that the couplers had previously missed each other when they were not properly lined up by hand in preparation 1o making a coupling. The evideuce is in considerable conflict as to the necessity, and indeed the physical possibility, of manually aligning or moving the couplers to an appreciable degree on the particular new type ball bearing cars involved in this case. There was evidence in the record that subsequent to appellee’s injury, the outside rail at this particular point in the track again twisted under the weight of a loaded car, and Mr. Brodie, a civil engineer, who testified as an expert for the appellee, concluded his testimony as follows : “. . . [I]n this case, I believe there has been millions and millions of tons crossing there and that additional flexure plus this additional curvature plus this lack of super-elevation coming immediately preceding that point makes that a very weak point in the rail; that has been shown not once but twice.” Witness Brodie’s testimony is contradicted by Mr. McKeithen, assistant engineer of track for the appellant, who testified that railroad rails break near the ends when they break from flexion, but that lie never heard of one twisting over because of weakness caused by flex-ion. He testified that super-elevation was not necessary on an industrial track and that the degree of curvature on the track involved was within standard for loaded cars moving as fast as fifteen miles per hour. Prom all of the evidence in this case, we are of the opinion that there was sufficient evidence of appellant’s negligence to go to a jury, and that the trial court did not err in refusing appellant’s motion for a directed verdict. See Hawkins v. Missouri Pacific Railroad Company, Thompson Trustee, 217 Ark. 42, 228 S.W. 2d 642. We do not question the sufficiency of the evidence to sustain the jury verdict in this case, for that is not the question before us. Even if the sufficiency of the evi dence to sustain the jury verdict were before us in this ease, we would examine it for its substantial nature rather than weigh its preponderance, for that is the prerogative of the trial judge who sees the witnesses and hears them testify in law cases. In the case of Muellier v. Coffman, 132 Ark. 45, 200 S.W. 136, the trial court in overruling a motion for a new trial, stated that the verdict as returned by the jury was somewhat of a surprise to him, but as there were disputed questions of fact for the determination of the jury, and, though contrary to the judgment of the court as to what the verdict should have been, he did not deem it proper to disturb the verdict of the jury. In reversing the trial court and granting a new trial, this court said: “That [trial] court sees the witnesses, hears them testify, and is afforded opportunities we can not have to weigh the evidence, and the duty, therefore, properiv rests with that court to pass upon the question of preponderance. In doing this, the court, of course, should give proper weight to the verdict of the jury and should not set it aside lightly, but if it clearly appears, and the court so finds, that the verdict is against the preponderance of the evidence, it becomes the duty of the court to set. it aside. Under the statement of the court, set out above, we think the court should have granted a new trial, and it will be now so ordered. Spadra Creek-Coal Co. v. Hager, 130 Ark. 374, 197 S.W. 705; Spadra, Creek, Coal Co. v. Callahan, 329 Ark. 448, 196 S.W. 477; Twist v. Mullinix, 126 Ark. 427, 190 S.W. 851.” In the case of Blackwood v. Eads. 98 Ark. 304, 135 S.W. 922, this court said: “Where there is decided conflict in the evidence, this court will leave the question of determining the preponderance with the trial court, and will not disturb his ruling in either sustaining a motion for new trial or overruling same. ‘The Supreme Court will much more reluctantly reverse the final judgment in a cause for error in granting than for error in refusing a new trial.’ House v. Wright, 22 Ind. 383; Oliver v. Pace, 6 Ga. 185. The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court.. Therefore his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.” In McDonnell v. St. Louis Southwestern Ry. Co., 98 Ark. 334, 135 S.W. 925, this court said: “. . . It is not invading the province of the jury for the trial judge to set aside its verdict where there is a conflict in the evidence. On the contrary, it is the duty of the trial court to s.et aside a verdict that it believes to be against the clear preponderance of the evidence. But it should not, and the presumption is that it will not, set aside a verdict unless it is against the preponderance of evidence. This court will not reverse the ruling of the lower court in setting aside a verdict where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance.” In Twist v. Mullinix, 126 Ark. 427, 190 S.W. 851, the trial court remarked that, in his opinion, the verdict of the jury was against the preponderance of the evidence, but he failed to set the verdict aside. In reversing the decision of the trial court, this court went rather thoroughly into the subject and for that reason we quote rather extensively from that decision: ‘‘. . . [A]fter the jury has concluded its deliberations and returned its verdict, if there is a mo tion for a new trial setting np that the verdict is not sustained by sufficient evidence, or that it is contrary to law, or both, it is then the province of the trial court to review the verdict and to determine whether or not the jury has correctly applied the law as contained in the court’s instructions, and whether or not the verdict is responsive to the preponderance of the evidence. * * * "When the trial court becomes convinced that the verdict is not sustained by a preponderance of the evidence, then it is his duty to set aside that verdict. And if the trial court finds and announces that the verdict of the jury is against the preponderance of the evidence on a material issue of fact then he must set aside such verdict. The trial court presides over the trial. He observes and hears the witnesses, and has the same opportunity as the jury in this respect, and that is the reason why it is made his peculiar and exclusive function to determine the issue on a review of the verdict as to whether it is responsive to the preponderance of the evidence in the cause. This court cannot do that for the reason that it has no such opportunity... The rule setting forth the respective functions-of the jury and the trial court and this court is well expressed in Richardson v. State, 47 Ark. 562, 567, where we said: ‘But the weight of evidence and the credibility of witnesses are to be determined by the jury. It is the duty of the trial court to set aside a verdict which is clearly against the weight of the evidence. But when the case reaches us, the question is no longer whether the evidence preponderates on one side or the other, or whether due credit has been given to the statements of a witness who has testified fully and fairly. But the question is, whether there is a failure of proof on a material point. To order a new trial because we differ in opinion from the circuit judge as to the weight of the testimony, or the truth or falsity of a witness, is to substitute our discretion for his discretion. And in this matter he is supposed to enjoy some advantages over us.’ * # * In Blackwood v. Eads, supra, we said further: ‘Where there is a decided conflict in the evidence this court will leave the question of determining the preponderance with the trial court and will not disturb his ruling in either sustaining a motion for a new trial or overruling same.’ * * * ‘The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.’ See also McDonald v. St. L.S.W. Ry. Co., 98 Ark. 334; McIlroy v. Arkansas Valley Trust Co., 100 Ark. 596-599. The only tribunal, under our judicial system, vested with the power to determine whether or not a verdict is against the preponderance of the evidence is the trial court. Where there is a conflict in the evidence and the trial court finds that the verdict, upon a material issue of fact, is against the preponderance of the evidence, the- logical and necessary result of such finding as matter of law is that the verdict must be set aside; otherwise, it would be impossible to correct the error.” In Wilhelm v. Collison, 133 Ark. 166, 202 S.W. 28, this court said: “Wé are not called upon to pass upon the legal sufficiency of this testimony to support a verdict based upon it, because the court below granted a now trial pursuant to the prayer of a motion therefor, which assigned as a ground therefor that the verdict of the jury was contrary to the preponderance of the evidence. We have many times said that the trial court should grant the motion for a new trial when convinced that the verdict of the jury was clearly against the preponderance of the evidence. Mueller v. Coffman, 132 Ark. 45, 200 S.W. 136; Twist v. Mullinix, 126 Ark. 427. And when the trial court reaches that conclusion and takes that action we have announced as a rule governing us in our review of that action that ‘this court will not reverse a decision of ihe trial court granting a new trial on the weight of the evidence unless it appears that there has been an abuse of the discretion in setting aside the verdict which is sustained by the clear preponderance of the evidence.’ Mcllroy v. Arkansas Valley Trust Co., 100 Ark. 599. And in the case of McDonnell v. St. L. S.W. Ry. Co., 98 Ark. 336, the rule was stated as follows: ‘This court will not reverse the ruling of the lower court in setting aside a verdict where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance. Taylor v. Grant Lamber Co., 94 Ark. 566; Blackwood v. Eads. 98 Ark. 304.’ See also Clements v. Knight & Co., 125 Ark. 488, and cases there cited.” To the same effect is our decision in the very recent case of Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898. In that case, as in the case at bar, the jury verdict was on interrogatories and the trial court did not invade the province of the jury, nor did he abuse his discretion in granting a new trial. We find it unnecessary to determine whether the alleged improper conduct of appellant’s counsel falls under the first or second paragraph of Ark. Stat. Ann. § 27-1901 (Repl. 1962) because the motion clearly alleged cause for new trial falling under paragraph 6 of § 27-1901, that “the verdict... is not sustained by sufficient evidence ...” and the trial court did not state which ground he granted the motion on. In Hall v. W. E. Cox & Sons, 202 Ark. 909, 154 S.W. 2d 19, a jury verdict was rendered in favor of the plaintiff and was set aside and a new trial granted upon the defendant’s motion alleging “that the verdict of the jury was contrary to the evidence, contrary to the law, and that errors were committed in giving, and in refusing, certain instructions, and that the verdict was excessive.” After a hearing on the motion, the trial court granted defendant’s motion for a new trial and set aside the judgment, assigning no specific ground or grounds therefor, and the plaintiff appealed from that order. In affirming the action of the trial court, this court said: • ‘ While the record reflects that the order of the court in granting the motion for a new trial was general in its terms and no specific ground was stated, since the motion for a new trial alleged as a ground the insufficiency of the evidence to support the verdict, we must affirm the trial court’s action if it can be supported on this or any other ground set up in the motion. The rule governing is stated by the textwriter in American Jurisprudence, vol. 3, p. 371, § 829, in this language: ‘Where, however, the order is expressed in general terms, without a specification of the grounds therefor, it will be affirmed if it can be supported on any ground alleged in the motion, even though it is one which is discretionary with the court, as, for instance, the insufficiency of the evidence.’ ” We find it unnecessary to deal further with the alleged impropriety of the argument to the jury, so we now return to the only question before us as to whether the trial court abused its. discretion in granting a new trial on any ground. As we said in Hall v. W. E. Cox & Sons, supra, "while the record reflects that the order of the court in granting the motion for a new trial was general in its terms and no specific ground was stated, since the motion for a new trial alleged as a ground the insufficiency of the evidence to support the verdict, we must affirm the trial court’s action if it can be supported on this or any other ground set up on the motion.” We conclude that the appellant has failed to show that the trial court abused his discretion in granting the motion for a new trial and we conclude that the judgment must be affirmed. .Affirmed.

GriffiN Smith;, C. J. We determine whether certain instructions given at appellee’s request were erroneous, and whether it was prejudicial for the trial court to hold that counsel for appellant should not interrogate prospective jurors as to insurance affiliations. Appellant, plaintiff below, was struck by a motorcycle. He was attempting to cross Victory street (in Little Rock) in front of a street car. The motorcycle was being operated by Victor Wild, who had a companion with him. Wild was making a business trip for appellee. When the accident occurred, the street car was about two-thirds through an intersection. Prom satisfactory evidence the jury could have found that appellant undertook to cross in front of the street car while the car was moving; that in doing so he stepped into a position of peril; that Wild was not negligent in failing to anticipate appellant’s movements, and that the collision was unavoidable. There was a verdict for the defendant. The first assignment of error is that the court improperly ruled that plaintiff’s counsel should not interrogate members of the jury panel on the subject of possible insurance affiliations. The question was, “Do any of you have any business connection with any insurance company writing liability insurance?” Upon objection being made, the court retired to chambers, and in the absence of the jury the president and the secretary of appellee corporation testified that when the accident occurred there was no liability insurance, but that a policy was procured a few days later. Prior to the accident the two witnesses.had discussed advisability of procuring insurance, but they had not contacted or talked with any insurance representative with respect to the subject. Specifically, the-court ruled: “Let the objection be sustained. The' court holds that counsel for plaintiff Avould have the right to ask the jurors what business they are engaged in, without referring to any particular occupation or profession.”' Ground for objection was that the plaintiff should not be denied the right to ask whether any of the veniremen was connected with the insurance company which wrote the policy issued subsequent to the injury. The principle was announced in Pekin Stave & Manufacturing Company v. Ramey, 104 Ark. 1, 147 S. W. 83, that if counsel for plaintiff, acting in good faith, had reason to believe any of the veniremen was connected with a casualty company .insuring the defendant, an in quiry directed to a discovery of such fact Avas proper. Other cases are to the same effect. In Baldwin, et al., Trustee for Missouri Pacific Railroad Company v. Hunnicutt, 192 Ark. 441, 93 S. W. 2d 131, it was held that counsel had the right to interrogate prospective jurors to ascertain their names, residence, business, and such other information as would enable counsel to exercise the right of challenge for cause or peremptory challenge Avithout cause. Other Arkansas cases cited, by appellant are Williams v. Cantwell, 114 Ark. 542, 170 S. W. 250, and Cooper v. Kelley, 131 Ark. 6, 198 S. W. 94. In the Cooper-Kelley Case Mr. Justice Wood, speaking for the court, said: “Questions that are intended to elicit any possible bias or prejudice that the veniremen might have, ‘likely to influence his verdict one way or the other,’ are always proper.” In the recent case of Ward v. Haralson, 196 Ark. 785, 120 S. W. 2d 322, an attorney for the plaintiff, in addressing a witness, said, “You went out there representing the state of Arkansas,' representing the defendant and an insurance company, and made those measurements.” It was held that this'was prejudicial error. It is our view appellant has not shown that he was prejudiced by the court’s refusal to permit counsel to specifically pursue the inquiry regarding the possible interest or non-interest of veniremen in an indemnity insurance company. It is not shown that any venireman was asked what his or her business was, or that an equivocal answer was given. It will be presumed that, under the court’s 'ruling, questions within the latitude accorded were asked, or that counsel elected not to pursue the subject. It is not shown that because of doubt or uncertainty created by any of the answers given, appellant exhausted his peremptory challenges. Peremptory challenge would not have been necessary if responses to the character of questions sought to be asked by appellant had shown the right to challenge for cause, and it is appellant’s contention that such showing could not be made because of limitations imposed by the court. Instruction No. 2 told the jury that “the defendant cannot be held liable for the result of any act or omission of Victor Wild, the result of which could not have been reasonably foreseen or anticipated by Victor Wild.” It is urged that the measure of care contemplated by the law was not what Victor Wild could have foreseen, but what a man of ordinary prudence, in the circumstances, would have anticipated. The instruction is not inherently wrong. There was only a general objection. .Effect of the instruction was merely to tell the jury that liability does not attach to one who, without fault of his own, is precipitated into. an unavoidable accident. In Taggart v. Scott, 193 Ark. 930, 104 S. W. 2d 816, an instruction similar to the one here complained of was given. We there held that, properly construed, the instruction told the jury that ordinary care was required. The vice urged against instruction .No. 14 is that it told the jury that operation of the motorcycle by appel-lee’s employee at an excessive speed, or running the motorcycle past the street car at the intersection in viola tion of city ordinances,‘ would not of itself or themselves conclusively establish negligence. ” We have frequently held that violation of a state law, or violation of a city ordinance, is merely evidence of negligence, and does not constitute negligence per se. Instruction. No. 16 told the jury that the rule of law requiring drivers to exercise care commensurate with the dangers reasonably to be anticipated did not require Victor Wild to anticipate appellant’s action. Appellant in sists that it is for the jury to find, in a particular caso, whether violation of a safety ordinance constitutes negligence. We think any uncertainty in that part of the instruction to which exception is taken was cured by other language in the same instruction which told the jury that “failure of Victor Wild to anticipate such action, if any, on the part of plaintiff, would not establish conclusively that Victor Wild was negligent in passing said street car. ’ ’ Finally, appellant insists that it was error to give multiple and duplicate instructions at the request of defendant. It is true a great many instructions were given; yet, they are not duplicates. It is better practice to limit instructions to the law applicable to essential subjects of controversy brought out by the evidence, but in the instant case the record does not disclose an abuse of the privilege each side to the controversy had to submit its theory under appropriate instructions. The judgment is affirmed. ITumpheeys and Mehapfy, JJ., dissent. “The plaintiff objects to the ruling, of the court in reference to permitting the plaintiff to have the jurors answer specifically whether they have any business connections with an insurance company writing accident insurance on vehicles or motor vehicles in Little Rock, for the reason that notwithstanding that these defendants have stated that they didn’t have any such insurance at the date of this injury, yet they say that they have a policy, for which they were then negotiating, and which was written a few days thereafter. If any venireman in the prospective jury panel is connected with that insurance company the plaintiff ought to know it so that the plaintiff might use a challenge upon such prospective juror. . That is all,” In the Pekin Stave Company Case the court said: “If counsel for plaintiff honestly and in good faith thinks that any of the veniremen is in any way connected with a casualty company insuring the defendant against loss for the injury complained of in the case, he can ask the jurors on their voir dire relative to this. If, however, his real purpose is to call "unnecessarily the attention of the jury to the fact of the insurance and thereby to prejudice them against the defendant’s rights, then this would be clearly an abuse of this privilege and should be promptly stopped by the trial judge.” A paragraph in the Baldwin Case is: “We think counsel had the right to interrogate the jurors to determine their names, residence, business, and such other information as would enable him to exercise his right of challenge for cause or peremptory challenge without cause. In Clark v. State, 154 Ark. 592, 243 S. W. 868, we held that a party is entitled to the same latitude in examining a juror to determine whether to exercise a peremptory challenge as when seeking information relative to challenge for cause, subject to the sound discretion of the court. The court not only denied counsel this right, but in doing so — facetiously, no doubt — hurtful, nevertheless — stated that counsel was unfortunate in not knowing the jurors by name, because he did not live in Saline county. The error, however, is the denial of a litigant the right to try to determine, in good faith, by examination on voire dire, who and what the jurors are who are to try his case.” In the Ward-Haralson Case it was said: “The statement of counsel for appellees, injecting into the case the fact, if it be a fact, that appellants had insurance coverage, was wholly inexcusable, uncalled-for by anything that had previously occurred in the case, and was highly prejudicial. We think the remarks of the court were not sufficient to remove the prejudice, and that a mistrial should have been declared. The obvious and only purpose in making the statement was to advise the jury that an insurance company would have to pay any judgment rendered. This was error.” Instruction No. 2 reads: “You are instructed that the defendant cannot be held liable for the result of any act or omission of Victor Wild the result of which could not have been reasonably foreseen or anticipated by Victor Wild. If you find that the injuries of the plaintiff were sustained in such manner as could not have been reasonably anticipated or foreseen by ‘Victor Wild' by the exercise of ordinary care on his part, the plaintiff is not entitled to recover.” Appellant’s argument is: “Victor Wild was a boy whom ap-pellee had employed to make its deliveries. It was enough to render appellee liable if the result of the act or omission of this boy causing the injury to a-ppellant could have been reasonably foreseen or anticipated by a, man of ordinary prudence, under the circumstances, whether the results of such acts or omissions could have been ‘foreseen or anticipated by Victor Wild’ or not. Appellee had no right to employ a boy to make its deliveries over the streets of a populous city on a motorcycle and then have the question of its liability for his acts or omissions turn on whether this boy could foresee or anticipate the result of such acts or omissions. Appellant had a right to have appellee’s liability depend upon whether a. man of ordinary prudence could have reasonably foreseen or anticipated the result of such acts or omissions.” Note: The record as abstracted- does not show the age of Victor Wild. The Taggart-Scott instruction was: “You are instructed that the defendant cannot be held liable for the result of any act or omission, the result of which could not have been reasonaby foreseen or anticipated. And in this case, if you find that the injuries and damage, if any, sustained by the plaintiff could not have been reasonably anticipated or foreseen, by the use of ordinary care by the defendant, the plaintiff is not entitled to recover.” In commenting upon the instruction in the Taggart-Scott Case, this court said: “It is argued that this instruction in effect told the jury that appellant could not recover if it found that the injuries sustained by her in person and to her car could not have been reasonably anticipated or foreseen by appellee’s driver. We think, properly construed, the instruction means, and the jury were told, that appellee would not be liable unless injury and damage to appellant or her car could have been, by the exercise of ordinary care, anticipated or foreseen by appellee’s driver.” Instruction No. 14: “Even though you believe from the evidence that Victor Wild was operating his motorcycle at an excessive rate of speed just prior to or at the time of the accident or passed the street car then being operated by W. C. Bently under circumstances which constituted a violation of one or more ordinances of the city of Little Rock, you are instructed that such act or acts, if any, of the said Victor Wild, would not of itself or themselves conclusively establish that 'Victor Wild.was guilty of negligence, but such act or acts, if any, may be considered by the jury only for the purpose of determining whether or not Victor Wild was guilty of negligence, and even if you find that Victor Wild did violate one or more ordinances of the city of Little Rock, either with respect to the then speed with which he was operating said motorcycle or the circumstances under which he passed the street car, you must further find, before you find for the plaintiff, that such act or acts, if any, were the sole and proximate cause of the injury.” Instruction No. 16 reads as follows: “If you believe from the evidence that the plaintiff, just before the accident, attempted to cross Victory street, at a point several feet north of the cross-walk which is located on the north boundary of the intersection of Second and Victory streets, and that at the time he made such attempt he was trotting or hurrying across Victory street to cross said street ahead of a northbound street car which then was entitled to the right-of-way over the plaintiff, and that plaintiff’s view of the motorcycle then being operated by 'Victor Wild was obstructed by the street car, you are instructed that the rule of law which requires drivers of motorcycles to anticipate the presence of pedestrians upon the street and to exercise reasonable care to avoid injuring them and which requires such drivers to exercise care commensurate with the dangers reasonably to be anticipated, would not require Victor Wild to anticipate such action, if any, on the part of the plaintiff, and the failure of Victor Wild to anticipate such action, if any, on the part of the plaintiff, would not establish conclusively that Victor Wild was negligent in passing said street car.” Shipp v. Missouri Pacific Transportation Company, ante p. 104, 122 S. W. 2d 593, and cases therein cited.

George Howard, Jr., Judge. This appeal is from a judgment of the trial court, sitting without a jury, finding: 1. The liquidated damages provision in a contract for the construction of a land subdivision project, providing that the contractor shall pay the sum of $100.00 for each working day of delay until the work is completed, was valid. 2. While the project was not completed on the scheduled date, November 6,1977, the job was substantially completed on December 7, 1977. 3. The retainage held by the appellant, in accordance with thé contract, of $4,320.00 shall be charged with $2,600.00 (as liquidated damages) and a judgment rendered in favor of the contractor for $ 1,720.00, including interest from the date of the contractor’s counterclaim at the rate of 6% per annum until the date of judgment and from the date of judgment until paid at the rate of 10% per annum. While the facts are essentially undisputed, the following is a summary of the relevant facts for an understanding of the issues tendered for resolution: On August 1, 1977, appellant, the owner, and appellee, as contractor, entered into a contract whereby appellant agreed to pay appellee $108,005.95 for work on a parcel of land that appellant was developing as Normanwood Subdivision. The work included, among other things, grading, asphalting, drainage, water and sewer improvements. Under the terms of the contract, the project was to be completed ninety calendar days after construction began. Appellee commenced work on August 9, 1977, and, con sequently, the scheduled completion date was November 6, 1977. The contract contained a liquidated damages clause which provided that the contractor shall pay the owner $100.00 for each working day of delay until the work was completed or accepted. Appellant contends that the project was not finally accepted until April 24,1978, aggregating a total of 144 working days of delay and, accordingly, instituted his action for damages of $14,400.00. Appellee claimed in its response that while the project was completed and accepted in accordance with the terms of the contract, appellant has refused to make the final payment of $4,320.00, and accordingly, requested judgment against the appellent for the retainage. For reversal, appellant asserts a novel argument. Quoting from appellant’s brief, appellant’s contention is: It is appellant’s position that the Court erred in so limiting the award of damages to only the sum accumulated up to December 7, 1977, because where there is a valid provision in a contract specifying liquidated damages, along with a breach of contract which triggers the accumulation of those liquidated damages, the date of ‘substantial performance’, if there is ‘substantial performance’, is irrelevant to the accumulation of those liquidated damages. [According to Appellee’s own records 18.9% of the total man hours occurred after the agreed time for completion and 4.8%occured after December 7, 1977.] Appellee, on the other hand, in pressing its cross-appeal from the judgment of the trial court, contends that the trial court erred in holding the liquidated damages provision valid; that the provision for payment of $100.00 for each working day of delay is void as a matter of law inasmuch as the stipulated figure is disproportionate to any actual damages sustained by the appellant. It is settled in this State that where the damages for breach of a contract are by their nature uncertain and difficult to determine, the amount to be paid, in the event there is a breach, may be stipulated to by the parties. However, the stipulated sum will be regarded as a penalty if the sum agreed to exceeds the measure of just compensation and the actual damages sustained are capable of proof. Moreover, the question whether the damages are difficult of proof is one to be determined from a consideration of the status of the parties at the time the contract is executed and not at the time of the breach. Nilson v. Jonesboro, 57 Ark. 168, 20 S.W. 1093 (1893); Blackwood v. Liebke, 87 Ark. 545, 113 S.W. 210 (1908); Hall v. Weeks, 214 Ark. 703, 217 S.W. 2d 828 (1949); Smith v. Dixon, 238 Ark. 1018, 386 S.W. 2d 244 (1965). In Hall v. Weeks, supra, our Supreme Court stated: The general rule governing liquidated damages is that an agreement in advance of breach will be enforced, if the sum named is a .reasonable forecast of just compensation for the injury, if the harm is difficult or incapable of accurate estimation. A valid provision for liquidated damages for á delay in performance of the contract will be enforced where the performance under the contract has not been completed on time. However, where a construction contract is substantially performed within the time limit, delay in the completion of minor details which does not cause material damage to the project will not subject the builder to liquidated damages. 25 C.J.S. § 115 Damages, page 1093; Roseburr v. McDaniel, 147 Ark. 203, 227 S.W. 397 (1921). In Roseburr v. McDaniel, supra, the Court said: The rule established by decisions of this court is that where a building contract is substantially performed, even though there are omissions and deviations therefrom, if such defects do not impair the structure as a whole and are remediable ‘without doing material damage to other parts of the building in tearing down and reconstructing, and may without injustice be compensated by deductions from the contract price,’ there may be a recovery for the amount found due after making such deductions. In Osborne v. Sutter, 143 Ark. 297, 22 S.W. 481 (1920), the contract provided that the work should be completed within 150 working days; and liquidated damages was stipulated to the extent of $10.00 per day for that time in excess of the scheduled completion date. The contractor consumed 390 days in the construction of the project. The trial court found that the delay resulted from causes beyond the contractor’s control which were not within the contemplation of the parties. The court held that the contractor should not be charged with the damages claimed by the owner. •The Arkansas Supreme Court in affirming the trial court’s conclusion that the liquidating damages clause was inoperative inasmuch as the project was substantially completed, held that the trial court’s holding was supported by a preponderance of the evidence. Whether a construction project has been substantially completed presents a question of fact to be resolved by the fact finders. Osborne v. Sutter, supra. We believe that the liquidated damages provision contained in the contract is not a penalty. The uncertainty of the risk taken by appellant in commencing construction of.his land development project in late summer, which obviously would extend into the fall months, justifies a conclusion that each party recognized the possibility that the owner would sustain a substantial loss in the event the project was not completed before winter. The variation and uncertainty of the impact of inflation as an element in the cost of construction affords a basis for finding that there is a reasonable relationship between the stipulated damages of $100.00 per day and the overall cost of the project. We do not consider the stipulated figure as extravagant or disproportionate to the construction cost. Appellant, during oral argument, admitted that the project was substantially completed on December 7, 1977, and argues strenuously that his case was not predicated on omissions, but was one essentially for damages for delay. Appellant has not cited any Arkansas authority in support of the argument, nor have we found any. The rule “substantial performance”, which the trial court invoked in resolving this controversy, permits an equitable solution to a controversy where the contractor has tried in good faith to follow the terms of the contract, but is prevented from doing so because of conditions occurring beyond his control or not contemplated by the parties. An owner who has realized special damages after the project has been substantially completed is not precluded from seeking relief even though he may be entitled to stipulated damages. Smith v. Dixon, 238 Ark. 1019, 386 S.W. 2d 244 (1965). Appellant in the instant case did not seek special damages. Appellant testified that the force of his complaint, relating to the noncompletion of the project, was that a drainage ditch was not constructed according to the grade that is shown on the plans, but did not prevent him from selling lots in full view of the ditch; that as late as April, 1978, appellee was required to patch the asphalt streets and finish the headwalls — a concrete structure designed to prevent erosion of the foundation supporting drainage pipes. However, the record discloses that 18.9% of the total man hours expended on the project occurred after the scheduled completion date and 4.8% occurred after December 7, 1977; that the Engineering Department of the City of Little Rock inspected and approved the project on December 7, 1977. Appellant also testified that on December 30, 1977, he signed an offer and acceptance for the sale of a lot containing the following provision: Seller warrants that all utilities are installed to each lot line and are adequate. Seller warrants that subdivision has been approved by FHA and/or VA, and that the City of Little Rock has accepted all utilities. We are convinced that the holding of the trial court is supported by substantial evidence. Affirmed. Hays, J., not participating. Penix, J., dissents. Appellant is a professional engineer. He prepared the plans, specifications and contract. Appellee was the lowest bidder and was awarded the contract for the job.

Frank Holt, Justice. Appellant, a minority stockholder, filed a complaint seeking involuntary liquidation of appellee Mt. Comfort Enterprises, Inc., pursuant to Ark. Stat. Ann. §§ 64-906 and 64-908. The corporation was adjudged insolvent, and an order entered authorizing the receiver to sell the corporate assets, including a fully equipped 220 acre poultry farm and numerous items of personal property, at public auction. The notice of the sale, published in a local newspaper, stated that any corporate assets upon which a lien existed would be sold separately and subject to all existing liens. It enumerated three outstanding mortgages which “will exceed” $440,000. Also the three mortgages were in default and subject to foreclosure at any time. All bidders were required to “qualify” by depositing bonds or letters of credit with the receiver prior to the sale. The equity in the above described real property and various small items of personalty of an undetermined value were sold for the high bid of $4.00 to appellee S. E. Prince. Since the sale was subject to all three mortgages, totaling $446,410.39 and in default, this amount must of course, as observed by the chancellor, be considered as part of the actual sale price, which would be a total of $446,414.39. Appellant filed a petition seeking to set aside the sale on the grounds of inadequacy of purchase price, conspiracy and collusion between the successful bidder and many other persons to depress the sale price, suppress the bidding, and suppress the number of independent bidders. It is from the denial of the petition that appellant brings this appeal. Appellant first contends that the court erred in failing to • set aside the sale of the equity to appellee S. E. Prince in the land and personal property belonging to appellee corporation. It is well established that the court is the vendor in judicial sales; the court is vested with sound judicial discretion and may confirm or refuse to confirm a sale in the exercise of this discretion. Summars v. Wilson, 205 Ark. 923, 171 S.W. 2d 944 (1943). There the court also held that “[jjudicial sales are not to be treated lightly,” and “the appellate court, in reviewing the action of a trial court to see if there has been an abuse of discretion, does not substitute its own decision for that of the trial court, but merely reviews the case to see whether the decision was within the latitude of decisions which a judge or court could make in a case like the one being reviewed.” To set aside the sale here, the burden is on the petitioner to establish that the property was sold for a grossly inadequate price, and that some slight additional circumstances, such as fraud, unfairness, or inequitable conduct existed. Hinton v. Elliot, 187 Ark. 907, 63 S.W. 2d 633 (1933); Adams v. Spillyards, 187 Ark. 641, 61 S.W. 2d 686 (1933); and Stevenson v. Gault, 131 Ark. 397, 199 S.W. 112 (1917). A review of the evidence here indicates that the appellant failed to establish that the price was “grossly inadequate.” Appellant’s expert witness testified that one year before the sale he had appraised the farm as an on-going operation at $525,000. This figure, however, included some $20,000 worth of personalty which was sold separately at the sale. In addition, he agreed that the farm’s value had diminished since it was no longer in operation. Also that property frequently brings less at judicial sales. Appellant testified, without stating any basis for his opinion, that the value of the farm as “a going turkey operation” was $600,000. At the judicial sale, the property actually sold, as indicated, for $446,414.39. Therefore, according to the figure of appellant’s own expert witness, the public sale price represents 85.03% of the total value of the property. The sale price also represented 74.40% of the unsubstantiated estimated value stated by the appellant. In cases where the courts have found a gross inadequacy in price, the difference in the alleged value of the property and the sale price was of a substantial magnitude. In Stevenson v. Gault, supra, a property worth $3,500.00 was sold for $500.00 or 14% of the value. In Mulkey v. White, 219 Ark. 441, 242 S.W. 2d 836 (1951), a forty acre farm was sold for $975.00. In refusing to approve the sale, the court held that the price was greatly inadequate in that “offers of $100.00 or more an acre had been made in open court.” Further, by analogy, as pointed out by the appellees, when real property is sold at public auction by a representative of the decedent, the law requires that such property be sold for not less than 75% of the appraised value. Ark. Stat. Ann. § 62-2717 (Repl. 1971). Here the property sold at a judicial sale for approximately 80% of its true value according to appellant’s own evidence. We hold that the appellant has not met his burden of proof that the public sale price of the property was grossly inadequate and that the chancellor, therefore, abused his discretion in refusing to set aside the sale. Consequently, it becomes unnecessary to discuss appellant’s contention that certain acts of appellees and others depressed or chilled the public bidding. However, we observe that a review of the record indicates that appellant failed to prove that anyone who wished to qualify for bidding was prevented from doing so or that the bidding by others was “chilled” or “stifled. ” We find no merit in any of appellant’s contentions. Affirmed. We agree: Harris, C.J., and Byrd and Purtle, JJ.

Conley Byrd, Justice. Appellant Calvin Hale appeals from a judgment sentencing him to 21 years for kidnaping and 10 years for robbery. For reversal of the judgment he relies upon the following points: “ I. The confession introduced in evidence was improperly admitted. “ II. The court erred in refusing to provide funds for the expenses of preparation and trial or, in the alternative, dismissing the charges herein. “III. The court erred in giving court’s instructions numbers 6 and 9.” The record shows that George C. James on April 11, 1967, was accosted by one Wade Eaves and appellant Calvin Hale in his apartment in El Dorado. Eaves and appellant escorted Janies from his apartment to an automobile. After driving Janies to a wooded area where they Availed awhile, they again put him in the automobile and took him to a public telephone. While appellant held a gun on James, Eaves dialed the banks where he knew James had money. As instructed, James told the bankers that he was in a business deal with Eaves and that he was going to give him some checks. After the telephone calls, Janies at gun point guve Eaves a chock on the First National Bank for $4,600.00 and a check on the Exchange Bank for $10,000.00. They then returned to the wooded area and instructed James to sit down by a tree and put out his hands. Thereupon they bound his hands and feet around the tree Avith a roll of tape and gagged him Aidth a handkerchief. After some effort, James freed himself and went to the sheriff’s office. Other Avitnesses described appellant as the man Avith Eaves on the date in question. Wade Eaves, an inmate of Cummins State prison farm, testified that he liad been convicted of the crime of kidnaping George C. James. He identified Calvin Hale as the person with him when Mr. James was kidnaped and robbed. The record shows that when appellant’s confession Avas obtained he Avas serving a five year sentence in LeaAuniAvorth Federal penitentiary. The officers interrogating appellant were W. T. Brewster, an El Dorado Police detective, Beryl Anthony, deputy prosecuting attorney and Sheriff Horner Pirtle. Mr. Brewster, Sheriff Pirtle and Mr. Anthony all testified that while Anthony Avas giAring the Miranda warning to appellant, appellant interrupted Anthony and said he probably knew more about his rights and the criminal law than Anthony knew. Mr. Anthony said that Avhen they first arrived, appellant was brought into the room by the federal guards and accompanying appellant was a penitentiary advisor who told them that it was the rule that a person from the pen itentiary liad to be in the interrogation room, if appellant so required. Anthony said that appellant at no time indicated he wished an attorney and in fact refused to make any statement to them as long as the advisor was present. In fact he said that appellant used some pretty harsh language to the advisor in requesting him io leave the room. All of the State’s witnesses stated affirmatively that no promises or rewards were offered appellant to obtain his confession. The testimony is that when appellant suggested that he would like a sentence which would run concurrently with the five year one he was serving in the federal penitentiary, he was advised that they were not in a position to make such a deal. Appellant Hale’s testimony was that he didn’t agree to answer all the questions and that he told Mr. Anthony that he didn’t know whether he wanted to remain silent. He testified that ho told Anthony we wanted an attorney. He said Mr. Anthony told him that the State of Arkansas was not going to press charges and that if they did, he would be given a five year sentence to run concurrently with the one he was serving and that he agreed to make the statement under those conditions. He had a bad reputation having been locked up all his life, hadn’t been out two years all of his life. That because of his record he agreed to sign a statement for five years to run concurrently with the one he was serving. When asked to describe what was going on at the time the confession was written out, appellant said: “Á. I didn’t even read it. The only thing that I remember is he asked me if I made any money out of it, if I was supposed to have gotten ten thousand dollars, or five thousand dollars, or some large sum of money, and I told him that I didn’t get a nickel out of nothing. I also, I told him ‘you just write down what you want to and I’ll sign the statement regardless, because it cannot be used against me in court of law because I do not have an attorney present. ’ And I told him, ‘anything that you write, in fact, if I can get a five-year sentence from it to run concurrently with the time I’m doing, I’ll clear your books. Just leave me alone. Otherwise, I haven’t got anything to say.’ And I was assured that I would receive a five-year sentence if the State tried me.” At the conclusion of a Denno hearing, the trial court found that the confession was voluntarily given after appellant had been advised of his constitutional rights. In addition to the foregoing evidence the record also shows that the state, at the request of appellant and pursuant to the Uniform Act to Secure the Attendance of "Witnesses from Without the State in Criminal Cases, (Ark. Stat. Ann. §§ 43-2005 — 43-2009 [Repl. 1964]), subpoenaed four witnesses from Leavenworth prison whom appellant refused to use. AA7e agree with the trial court that appellant had effectively waived his constitutional rights and that the confession was properly admitted into evidence. See Miranda v. Arizona, 384 U.S. 436, 36 L. Ed. 2d 694, 86 S. Ct. 3602 (1966). Under point 2, appellant contends that the State refused to provide him funds for the reasonable and necessary expenses of trial and preparation for trial and that it wrongfully refused to provide for the expenses for examination of defendant by a private psychiatrist. AVe find these contentions without merit. The record shows that the trial court appointed a most able trial lawyer, with experience in criminal law, to represent appellant. The court had appellant moved from Leavenworth penitentiary to Union County jail on April 14, 1968. Appellant’s trial did not begin until Sept. 37, 3968. AA7e cannot tell from the record whether appellant remained in El Dorado during all that time but obviously the State took precautions to see that appellant had an opportunity to consult with his attorney in ample time to prepare for trial. In addition the State endeavored, pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Oases, to obtain every witness requested by appellant. In doing this we think the State discharged any burden or duty it owed appellant. Furthermore, the record shows that the State did furnish to appellant the services of a psychiatrist. The psychiatrists furnished to appellant were selected by the Stale not for criminal work but for treatment of mental diseases. The State Hospital staff is only incidentally used to determine mental competency of criminal defendants. Selection of psychiatrists on tire State Hospital staff is done by the Governor or through his appointees and is not in any way controlled by the persons charged in this State with prosecuting criminal defendants. Under this procedure we can find no denial of due process or equal protection of the laws to the prejudice of appellant. Surely due process of law does not require the State to furnish expenses for appellant to shop from doctor to doctor until he finds one who considers him mentally incompetent. ■ Appellant has cited us no law to support such proposition, nor have we found any. For this reason and the reasons stated above we find no merit in appellant’s point No. 2. On appeal appellant complains that the trial court erred in giving its instructions Nos. 6 and 9. Instruction No. 6 defined kidnaping in the statutory language of Ark. Stat. Ann. § 41-2301 (Repl. 1964). Appellant now argues that the instruction is abstract and was confusing to the jury because it included, “the taking of a person into another state or territory and transporting a person for the purpose of thwarting arrest or detection. ’ ’ The instruction as given is not inherently erroneous and since appellant made no objections either general or specific to the giving of the instruction, we find his 'contention to be without merit. Appellant’s objection to the trial court’s instruction No. 9 on the necessity for corroboration of an accomplice’s testimony is that by the careless use of a simple pronoun the instruction completely fails to carry the meaning of the rule it was intended to set out. This argument is made because a portion of the instruction reads as follows: ■ !; “A conviction cannot be had upon the testimony of an accomplice unless you find that his testimony is corroborated by other evidence, either by direct or circumstantial evidence tending to connect,him with the crime.” Again there was no objection to the instruction as.given. Fven if there had been, we find that the supposed error is- cured by the balance of the instruction which tells the jury as follows: “The other evidence or corroboration is not sufficient if it merely shows the facts and circumstances that the offense was committed, but it must go further and show in the affirmative that the defendant was connected with the crime and the commission of it.” Affirmed.

Mehaeey, J. The appellee instituted this action against the appellant, alleging in her complaint that Leroy Williams, now presumed to be dead, purchased from the appellant three policies of life insurance in which he insured his own life and named appellee as beneficiary; the numbers, dates and amounts of piolicies are set forth, and then appellee alleges that in September, 1923, while a bona fide resident of Pulaski county, Arkansas, the deceased disappeared, and has since that date absented himself beyond the limits of the state; that appellee has made diligent inquiry and search among his friends and people in Arkansas with whom he naturally would have communicated had he been alive; said inquiry and search being continuous in intensity since the date of his disappearance ; that she has neither seen nor heard of him since his disappearance; that the premiums on said policies were one dollar per week and soon after insured’s disappearance appellant’s agents advised her to keep the premiums paid up and promised her that when the insured returned, her money would be refunded or else the benefit in the policies would be paid to her after she had paid premiums for five years; relying on this advice and promise, she paid the premiums to and including September 28, 1931, when she made a claim upon the appellant by completing forms sent by it which were accepted by it; her- claim was denied; appellant stating that the insured was alive as late as May 6, 1931, hut refused to inform appellee of insured’s whereabouts; ap-pellee, believing the statement that the insured was alive, discontinued payment on September 28, 1931; the statement of appellant that insured was alive on May 6,1931, is untrue; appellant knew at the time it made it that it was untrue, and it was made for the purpose of misleading appellee, and did mislead her and caused her to discontinue payment of premiums or pressing her claim to a conclusion at that time; appellee has since made further diligent search and inquiry and believes, and therefore alleges, that the insured is deceased; appellee would have pressed her claim to conclusion when she formerly filed same but for the erroneous and fraudulent statement of appellant, its agents and servants; that she has only recently discovered the untruthfulness of said statement; said insurance was written on the endowment plan and had a legal reserve and cash surender value sufficient to maintain the policy and it was appellant’s duty to pay the premiums and thus keep the insurance in full force and effect so long as the reserves lasted; that is was appellant’s duty to keep appellee truthfully and correctly advised of the whereabouts of insured and the amount of reserves, but it failed and refused to do so; she had repeatedly demanded payment, but her claims have all been refused by appellant; she then prayed .judgment for $1,620, 12 per cent, penalty and a reasonable attorney’s fee. Appellant filed a general denial to the material allegations of this complaint. It, however, admitted the issuance of the three policies of insurance on the life of Leroy Williams, but alleged that the loss-payable clause provided that payments should be made to the executor or administrator of the insured’s estate unless appellant elected to pay to another, and alleged that it has not so elected. The answer then sets. out the numbers, dates and amounts of policies. An amended and substituted answer was filed alleging that the policies had lapsed for non-payment of premiums. It prayed that the suit be dismissed. • ■ - An amended and substituted complaint was filed alleging that a certain policy was $410 instead of $800. She alleged that insured was a bona fide resident of the state of Arkansas and that shortly after he disappeared the local agent and general agent, one of whom was named Mr. Roy, both residing in the city of Jonesboro, came to her home and persuaded her to keep the premiums paid up, and repeated the statement in her original complaint. Appellee pleads as exhibits copies of communications received from the appellant, and prays for judgment in the sum of $820 plus 12 per cent, penalty and reasonable attorney’s fee. She prayed in the alternative for judgment in the sum of $422 with interest at 6 per cent, per annum from October 19, 1931, until paid. Appellant filed answer denying the allegations and pleading as in its original answer, and pleaded the statute of limitations as a bar to her cause of action. Hattie Williams lived with her husband, Robert Williams, in Batesville, Mississippi. Robert Williams died in July, 1919. His brother, Leroy Williams, lived with Robert Williams, and after Robert Williams’ death the appellee' kept house and Leroy Williams was in and out just like he was when his brother was living. Appellee moved to Jonesboro in the fall of 1922, and in the spring of 1923, Leroy Williams lived with appellee just like he did in Mississippi. Leroy Williams bought policies of insurance on his life and made appellee beneficiary. The two policies were for $410' each, with weekly premiums. The first appellee knew about the insurance was when Leroy Williams left the money with her tó pay Mr. Roy, the agent of the company. Leroy Williams paid the premiums on these policies until he left in the fall of 1923 or 1924. He said he was going to St. Louis, but ap-pellee has never heard from him since and has made all efforts to find him. Wrote different friends in Jones-boro that knew him, wrote to Clarksville, Mississippi, where he said he was raised, and kept on looking around; she had friends she wrote to every week and asked them to let her know about Leroy Williams; she wanted to know whether lie was living or not; she did not pay anything on the policies for three or four weeks after he had gone; Mr. Roy, who was collecting insurance, asked appellee to keep the policies up, but it was not until after he and the superintendent came out and persuaded her; they 'both told her that if she kept the insurance up for a period of seven years and Leroy, did not come back, the company would pay her the face value of the policies. .She then paid on the policies, which were behind, and continued to pay until sometime in September, 1931. In the fall of 1930 or 1931 she talked tb the agent in Little Rook and he brought two blanks out which she signed at his request; she thought he knew what he was doing; she made claims for the proceeds of the insurance in 1930 or 1931; they did not pay her and the manager, or assistant manager from the home office, told her he knew Leroy’s whereabouts, but that he did not want appellee to know; she later got a letter from the home office on October 14,1931. The following letter was introduced: “Mrs. Hattie Williams “1724 Pulaski Street “Little Rock, Arkansas “Dear Madam: “We are sorry to find that you have found it necessary to write us in connection with your insurance. The exact terms and provisions of your policies are' outlined on the third page of the policy form indicating that premium payments must be continued for at- least ten years and the policies kept in force for that period before they will be eligible for the payment of a cash surrender value. “We are today writing direct to the insured to find out Avhether he is willing that we should indicate to you his present address. We will notify you further as soon as we hear from him. “Yours truly, “(Signed) W. S. Prince, “Manager.” Appellee testified that she received another letter from the home office dated August 26, 1931, and this letter was introduced as follows: “Mrs. Hattie Williams “1724 Pulaski Street, “Little Rock, Arkansas. “Dear Madam: “We'are sorry to learn that you have ag’ain found it necessary to write us in connection, with your insurance. We are still awaiting certain necessary information from the manager of our Little Rock, Arkansas district and we are today requesting him to notify us promptly. As soon as we receive his letter we will be in a position to determine the action to be taken on your request for cash surrender. ■ Please be assured of our wish to be of every possible service to you. “Yours truly, “(Signed) W. S. Prince, Manager.” Both of these letters were from the home office in New York and were written on the company’s stationery. Appellee relied on these statements and continued her search for Leroy and found a man they called Pats Williams that the company had communicated with, and he was supposed, to be Leroy. Appellee talked to the agent of the company about this in 1933 or 1934, and he said he did not know who this man was, but he would find out. Appellee got acquainted with Leroy Williams in Mississippi; he was then about 18 or 19 years old and he was 22 or 23 when the insurance was written; he gave appellee three policies and asked her to keep them because he wanted to leave something so witness could bury him if anything happened to him; he paid the first premiums'himself; appellee’s name does not appear on any of the policies. The agent told her that they did not put the name of beneficiaries on Metropolitan policies any more. Leroy Williams was staying with -witness in Jonesboro when.he took out the policies; he would come and stay two or three weeks or a month and go out on Saturday where they had pay day at different mills like all gamblers; lie did not work any place only when he had to; then he worked at sawmills and lumber camps; he came to Jonesboro in February, 1923, and was in and out until he left either in 1923 or 1924; so far as witness knew he had no reason to leave, and he was in good health the last time she saw him. She started trying to locate him in 1930 or 1931. Leroy and his brother said all their people died during the flood; she never saw any of their relatives; when she first put her claim in she talked to the agent who brought the forms out; she wrote to the home office; was living in Little Bock at the time; the letter to the home office was written in February, 1931; written entirely in witness ’ handwriting, and states that Leroy Williams disappeared in 1923; at the same time that Leroy Williams was staying with her in Jonesboro, another boy came in and out whose name was Leroy Patton; he came and got a room awhile, and he would stay in jail and run around. She and Leroy Patton were arrested and fined at Jonesboro; she did not know Leroy Patton before he came to her house; came with some boys that roomed there. He was in Jonesboro when witness left; she did not tell Malinda Watkins that she had 'a husband, and that he had come to see her in Jonesboro. She did not pay premiums on all three policies for seven years; one of them lapsed in January, 1927, or 1926; she' did not sign Leroy Williams’ name to the application. J. E. Roy testified in substance that he lived in Jonesboro in 1922 and 1923, and was agent for the Metropolitan Life Insurance Company writing and collecting insurance; went to- work for the company in 1921, and worked until November, 1925; he worked for them again in 1930, and quit in 1932; knows Hattie Williams, the appellee, and knew Leroy Williams and wrote three policies on his life in 1923; Hattie and Leroy both paid premiums; Leroy Williams lived on Oak street when he bought the insurance; had no conversation with him as to who would be beneficiary; Hattie told him that Leroy had left and she was going to drop the insurance, and witness told her that, if she continued to pay premiums for five to seven years and would file a disappearance claim, tbe company would pay her the insurance; she left Jonesboro and came to Little Rock and sent the money and premium receipt book back to witness; does not know that he made any promise that the money would be refunded; the company had two superintendents and each had five agents with whom he worked; they were anxious to keep business on the books; has not seen nor heard from Leroy Williams since 1924; does not know whether Swaringen, superintendent, talked to Hattie or not; wrote Hattie Williams that, if she would get in touch with an agent, he would transfer the business, but could not transfer it if she was not in reach of another agent; she was paying the premiums when witness quit. H. A. Cleary lived in Jonesboro for 19 years; was in the installment business; knows Hattie Williams and knew Leroy Williams; does not know when he disappeared from Jonesboro; it has been a long time since witness saw him; knows he has not seen him since 1923 or 1924; has seen a boy today whom he knew as Leroy Patton; he and Leroy Williams are two different ne-groes; knows Leroy Williams, but does not know his whereabouts; has not talked to anybody about this case; knows Swaringen in Jonesboro; he was assistant manager of the appellant in 1923 or 1924. Hattie Williams then testified that she knew Swar-ingen in Jonesboro; he was the man who talked to her about paying premiums; he told her that, if she kept it up and Leroy did not come back, she could file a nonappearance claim and be paid the face amount of the policy, and if he did come back they would refund the money she had paid. After he talked to her she kept the premiums paid. Mr. Swaringen said he was one of the officers of the company. Mr. Charles J. LaGrassa is assistant manager of the appellant in charge of the company’s records; lives in New York and has been employed by appellant for 33 years; part of his duties consist in keeping, supervising and preserving records, papers, documents and files in the home office, relating to policies of life insurance issued by appellant insuring the lives of individuals in Arkansas; the policies sued on were issued on the life of Leroy Williams; issued through the Jonesboro office; amount $410 on the endowment at age 80 plan; the original application was attached to witness ’ deposition. Pursuant to the application of Leroy Williams, policies were issued; Hattie Williams was never designated as beneficiary. He then testified that the policies had lapsed for nonpayment of premiums in 1931; one policy lapsed in 1926, but that policy is not involved in the suit. Leroy Patton lives in Cooter, Missouri; is 38 years old; knows Hattie Williams; he visited her at Jonesboro,- and she was supposed to be his common-law wife; stayed with her until August, 1923, when he married; witness testified that he signed the policies as Williams and Mr. Roy examined him and told him he would not have to go to the doctor; that this was the first time he ever used “Williams” in his life; did not write the words “Leroy Williams” on where it says signature of applicant on policy No. 70608612; that these policies were issued on his life by appellant; he wrote his name “Leroy Williams” on the policies. Mr. Roy later told him he would have to be examined. Mr. Roy left a blank with him so he could sign it when he was examined; he signed it twice; the words'“Leroy Williams” were already written on the policy; he signed the applications as “Leroy Williams,” because appellee had told persons that he was her husband, and he signed Williams, because the law would arrest a man for sleeping with a woman, if he could not produce a license; they arrested them anyhow; did not know whether Hattie Williams had a brother-in-law or a husband; does not know when she left; since 1930 witness has been in Blytheville and Madison county, Illinois, and for the last three years in Cooter, Missouri; has been fined for drinking, gambling, transporting whiskey,, and petty larceny, but never served any time in the pen; Mr. Butler came to see witness at Cooter, and before that he did not know that Hattie had filed a claim; company made no connection with him until 1931; has not been subpoenaed; came because Mr. Butler came after him, and told him he would give him two dollars a day and expenses. Malinda Watkins testified that she heard Hattie Williams say her husband was away, but would be home; she has never seen but one “Leroy”; did not know the name “Patton”; all she knew was Leroy Williams. John Bennett knew Hattie Williams, and knew Leroy Patton, and knows a boy named Leroy Williams who is about ten or twelve years old; if there was another Leroy Williams there with Hattie, witness did not know it; there could have been another man. Dr. W. C. Overstreet testified that he had examined Leroy Patton for insurance, but it was under the name of Leroy Williams; did not know the other Leroy Williams, unless this is he; maybe five years ago he met another Leroy Williams. ■O. D. Bolle, teller at the Union National Bank, examined the application and also the letter supposed to be written by Hattie Williams; in his opinion the signature which appears on the application was written by the same person who wrote the letter. Leroy Patton, recalled, testified that he wrote the words “Leroy Williams” several times on a piece of yellow paper; has not written “Leroy.Williams” since he wrote it on the policy until Mr. Butler came. Bolle was recalled and testified that he does not believe “Leroy Williams” in the application, and the words “Leroy Williams” on the white piece of paper were written by the same person; does not believe that the words “Leroy Williams” on this application were written by the same person who wrote these words on the yellow sheet; does think that the same person wrote the words on the yellow sheet that wrote “Leroy Williams” on the applications for policies. Hattie Williams testified in rebuttal that she got acquainted with Leroy Patton .just before Leroy Williams left; this Leroy Patton is not the boy she has been paying insurance on; heard Patton testify that he signed one of the applications; if he did witness was not there; she did not sign any of the applications; does not think the woman who lived across the street knows; witness scarcely ever saw her; she never told this woman that she had a husband; everybody in Jonesboro knew that her husband was dead; when Leroy left he gave witness the policies, and said he was going' to Missouri. J. E. Roy testified on rebuttal that he had known Leroy Patton" 12 or 15 years; if he ever bought any insurance witness does not remember it; Leioy Williams bought insurance; Williams and Patton are not -one and the same person; talked to the lawyer who got killed some time last summer; he came to Trumann to see witness, and had two pictures of different negroes and asked witness'who they were; witness told him one of them was Leroy ‘ ‘ Fats ’ ’ Williams and the other he did not know; Leroy “Fats” Williams was not the one that disappeared ; Mr. Garner sent witness a picture of Leroy Patton and a white man, and asked witness if he could identify them; witness knew both Leroy Williams and Leroy Patton. There was a verdict and judgment for appellee for $820 and interest at 6 per cent, per annum on October 19,1931, and a statutory penalty of 12 per cent, and $200 attorneys’ fees. The appellant contends first that the court erred in refusing to instruct the jury to return a verdict for appellant, because it says, first, appellee failed to establish that she was entitled to the proceeds of the policies sued on, and sets out the policy and the statement of ap-pellee that she was the beneficiary. The following provision of the policy is relied on: “ ‘To pay....:.the amount stipulated.to the executor or administrator of the insured,' unless payment be made under the provisions of the next succeeding paragraph, ’ which said paragraph reads as follows: “ ‘The company may make any payment or grant any forfeiture privilege provided herein to the insured, husband or wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial; and the production of a receipt signed by either of said persons, or of other proof of such payment or grant of such privilege to either of them, shall be conclusive evidence that all claims under this policy have been satisfied. ’ ’ ’ The appellant alleged that it had not elected to pay the appellee the proceeds of the several policies, and that appellee has- no right to maintain this suit. The undisputed evidence shows that appellee was told both by the agent and one of the superintendents that, if she would pay the premiums for a certain number of years, the face value of the policy would be paid to her. She relied on this and paid the premiums. Moreover, the appellant knew about this and undertook to show that the insured was alive. It first discovered a Leroy Williams who was known as “Fats” Williams, and told appellee that they had discovered Leroy Williams, the insured, and that he was alive. They evidently discovered that “Fats” Williams was not the insured, and then they discovered one Leroy Patton in Cooter, Missouri, who claimed that he represented himself to be Leroy Williams and took out the policies. After appellant told the appellee that the insured was alive, she stopped paying premiums. Appellant, however, says that appellee presented no testimony which even purports to bring herself within the rule laid down in Metropolitan Life Insurance Company v. Fitzgerald, 137 Ark. 366, 209 S. W. 77, and followed in the disappearance case of Metropolitan Life Ins. Co. v. Fry, 184 Ark. 23, 41 S. W. 2d 766. The court said in the Fitzgerald Case: “The trend of our decisions shows that the statute requiring every action to be prosecuted in the name of the real party in interest has received a very liberal construction with the view of effectuating the wise purpose to permit those who are the real parties in interest to a cause of action to maintain the suit.” The court further said in that case: ‘ ‘ There is no contention that the appellant has made, or would make, payment to some one other than appellee under the terms of tlie option provided in the policy or that any one else was entitled to shch payment. If an administrator had been appointed and had instituted this suit the uncon-troverted facts of the record prove that, in that event, the amount to be recovered under the policy would go to’ the appellee as the real and only party in interest. ‘ ‘ Therefore, it would he magnifying form above substance and contrary to both the letter and spirit of the statute to hold that the appellee could not maintain the suit. ’ ’ In the instant case, there is no contention that the appellant had made or would make payment to someone other than appellee, and in addition to this, it had told the appellee that it would pay to her. All that is said about the right to sue in the case in 184 Ark. referred to, is that the parties to the suit were entitled to his estate, and there being no creditors, were entitled to maintain the action. It is contended, however, that the court, in instruction No. A, committed error, because the instruction closed with the following language: “Thus insuring his own life in said sum in favor of the plaintiff, Hattie Williams,” etc. There could have been no prejudice in this statement, because she had, by contract and agreement with the appellant, actually become the beneficiary. It is true that the authority of an agent cannot be established by the mere fact that the person claiming such authority has exercised it; but in this case the evidence itself shows that Hoy and the superintendent that visited ap-pellee were both agents of the company. Moreover, the company, as we have already said, knew all about the facts. It is next contended that the court erred in refusing to instruct a verdict for appellant, because appellee’s proof did not bring her case within the rule of the presumption of death statute. The statute reads as follows: “Any person absenting himself beyond the limits of this state for five years successively shall be presumed to be dead, in any case in which his death may come in ques tion, unless proof be made that he was alive within that time.” Pope’s Dig’., § 5120. We think this -is the most serious'question in the case, and that' it is a very close question as to whether he was a resident of Arkansas at the time he disappeared, and whether the evidence brings it within the statute. The evidence shows' that insured came to Jonesboro in February, 1923. According to the evidence of appel-lee, the insured disappeared in 1923 or 1924; she is unable to say which; but there is other evidence tending to show that lie disappeared in the fall of 1924. This question, however, was submitted to the jury on an instruction requested by appellant, which reads as follows: “In order to recover the face amounts of any of the policies the plaintiff must prove by a preponderance of the evidence that the person whose life- was insured under the policies sued on herein is actually dead unless you find from a preponderance of the evidence that the insured when last heard from was a resident of Arkansas, and that he has been absent from the state of Arkansas for a period of at least five years from the. day of September, 1923, or 1924, and that during that time he was not heard from by near relatives, friends, or neighbors, who would be most likely to receive communication from him or be in a position to know whether or not he was living. In the event that you so find, a presumption arises that the insured is dead which presumption, however, may be rebutted by proof on the part of the defendant.” The jury were told plainly in this instruction that unless they found from a preponderance of the evidence that the insured, when last heard from, was a resident of Arkansas, and that he has been absent from the state of Arkansas for a period of at least five years, from September, 1923, or. 1924, and has not been heard from by relatives, friends, or neighbors who would be most likely to hear from him and to know whether he was living, then the presumption arises that he is dead; but that this presumption might be rebutted by proof. That question, having been submitted to the jury under instructions submitted 'by the appellant, the jury’s finding is conclusive here, if there is any substantial evidence to support it. We are of opinion that the evidence was sufficient to justify the finding of the jury. The evidence must show that insured was a resident. of the state of Arkansas. This court said, in the case of Burnett v. Modern Woodmen of America, 183 Ark. 729, 38 S. W. 2d 24: “ ‘Any person’ used in this statute means any person who is a resident of this state, and who absents himself from his home or residence beyond the limits of the state for a period of five successive years, and who has not been heard from by near relatives, friends, or neighbors, those who would naturally make inquiry concerning his whereabouts and who would most likely receive communication from him and he in position to know whether or not he was liying. If he has not been heard from by these or others, his death will be presumed unless there is proof to the contrary. ’ ’ Both the residence and the absence beyond the limits of the state must be proved, but may be proved by circumstantial evidence; but neither death nor the fact of absence can be inferred from the mere fact of disappearance. Met. Life Ins. Co. v. Fry, supra. It is next contended by the appellant that the court erred in not directing a verdict in appellant’s favor, because the statute of limitations had barred appellee’s cause of action. The appellee filed her disappearance claim demanding the proceeds of the policies in the fall or winter of 1930. She had paid the premiums up to this time and up to 1931, and then her claim was denied in August, 1931, because appellant claimed that the insured was alive, and it had located him. When this false claim was made, appellee believed it to be true and ceased making payments. It developed that the person it claimed was Leroy Williams was a person named “Fats” Williams, and no one contends now that he was the insured. It is a general rule that where one has deceived another or where, through active wrong or negligence, he misleads another and- causes him not to file suit, the statute is tolled or suspended until it is discovered that the representations were false. If a defendant intentionally or negligently misleads plaintiff by his representations and causes him to delay until the statutory bar has fallen, the defendant will be estopped from pleading the statute of limitations. Missouri Pacific Rd. Co. v. Davis, 186 Ark. 401, 53 S. W. 2d 851; Wright v. Lake, 178 Ark. 1184, 13 S. W. 2d 826. The appellee was caused to stop paying premiums, and to not press her claim by the misleading information of the appellant in stating that it had discovered the insured alive. The person discovered at that time was “Fats” Williams, and it is not contended now that he was insured, and he was not present as witness at the trial. The-appellant then found another negro in Missouri which it claimed was Leroy Williams, but this was after the suit was brought. We think there is no merit in the plea of the statute of limitations. It appears- from the whole case that this appellee paid the premiums with the consent and at the suggestion of the appellant. This court recently said: “In Cronan v. Metropolitan Life Ins. Co., Supreme Court of Rhode Island, reported at p. 618, 147 Atl., 50 R. I. 323, it is said: ‘The law.is well 'settled that a beneficiary who pays premiums or loans money upon the security of the policy acquires in the policy a vested right which will be protected in equity against one who thereafter, without valuable consideration, becomes the substituted beneficiary. Although the policy contains a clause to the effect that no assignment of the policy will be recognized unless consented to by the insurance company, a beneficiary who acquires vested rights is only required to notify the insurance company of the fact before payment is made to another person.’ ” Reilly v. Henry, 187 Ark. 420, 60 S. W. 2d 1023. Our conclusion is that the evidence is sufficient to support the verdict, and the judgment is, therefore, affirmed.

George Rose Smith, Justice. This is an interlocutory appeal from the trial court’s ruling at a pretrial hearing under the rape-shield statute. Ark. Stat. Ann. §§ 41-1810.1 et seq. (Repl. 1977). The trial court sustained the admissibility of proffered proof concerning prior sexual activity between the prosecutrix and the defendant and concerning a statement made by the prosecutrix suggesting a questionable motive for her charge of rape. The appeal challenges the court’s further ruling that evidence of the prosecutrix’s reputation for chastity and morality and of her prior sexual activity with third persons would not be relevant. We affirm the court’s ruling. According to the defendant’s proffer of proof, at about 2:00 a.m. on November 9, 1978, the prosecutrix, accompanied by other young people, left the Collegiate Plaza, a night club, and was taken to her home. Before going in her. house the prosecutrix saw the defendant, whom she knew, in his car. After the prosecutrix’s friends left, the defendant returned and honked for the prosecutrix, who came out and got in the car. The two drove away. The defense contends that the two consumed alcohol and engaged in sexual intercourse by consent. The State asserts that there was no alcohol in the car and that the defendant stopped the car, started hitting the prosecutrix, pulled off her clothes, and raped her. The defendant’s brief states only one point for reversal, but his argument actually includes four separate subordinate contentions. First, it is contended that, despite the language of the statute, proof of the prosecutrix’s reputation is still admissible, as it used to be, to establish the defense of consent. The statute refutes that contention. Section 41-1810.1 explicitly provides that reputation evidence and specific instances of the victim’s prior sexual conduct are not admissible to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. Section 41.-1810.2 then creates an exception to the exclusion by permitting the defendant, at a pretrial hearing, to proffer relevant evidence (1) directly pertaining to the act upon which the prosecution is based or (2) of the victim’s prior sexual conduct with the defendant or any other person. The exception, however, contains no reference whatever to reputation evidence, which is therefore excluded under the first section of the statute. Second, it is contended, again in the teeth of the statute, that evidence of the victim’s prior sexual conduct with third persons is still admissible as bearing upon her credibility. Section 1, as we have said, explicitly excludes proof of such conduct to attack the credibility of the victim. Section 2 contains no exception to that exclusion as far as credibility is concerned; so such evidence must be excluded when offered for that reason. Apart from the statute, if such evidence had a genuine bearing upon credibility, then every woman would be exposed to such cross examination whenever she testified in any case whatever, civil or criminal. Third, it is argued that the statute violates the accused’ s right to confront the witnesses against him and his right to due process of law. Both those arguments were rejected in Marion v. State, 267 Ark. 345, 290 S.W. 2d 288 (1979). To the same effect is the holding in United States v. Kasto, 584 F. 2d 268 (8th Cir. 1978). We need not repeat the reasons given in those cases. Fourth, it is argued that the statute denies the equal protection of the law, in that the act restricts the defendant’s freedom to introduce evidence with no similar restriction upon the prosecution. To begin with, the prosecution is actually restricted by the principle that it cannot bolster its case by proving that the same defendant committed another rape. Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). In the second place, the classification made by the rape-shield statute is not arbitrary, being based upon permissible considerations of public policy. We agree with the view expressed by an Indiana Court of Appeals in rejecting this same argument: [T]he rape shield statute was a rational attempt by the Legislature to protect the prosecutrix from harassment that might arise if her prior sex life was disclosed in court. Another closely related justification for rape shield laws is that they will aid in crime prevention because victims, knowing that the statute protects them from the embarrassment of the introduction of evidence of previous sexual activity, will be encouraged to report rape offenses. In light of these legitimate state policies, it cannot be said that the disparate treatment of this statute is without a reasonable basis. Finney v. State, 385 N.E. 2d 477 (Ind. App. 1979). Affirmed. Harris, C.J., not participating. Byrd, J., dissenting.

Conley Byrd, Justice. Appellant Christine R. Brown obtained a judgment against James Brown, Jr. in a divorce proceeding for past due child support in the amount of $1450. On September 12, 1978, appellant served a writ of garnishment on her ex-husband’s employer, St. Vincent Infirmary. The return on the writ of garnishment states that it was served upon Lou Hillie. However, the proof shows that St. Vincent Infirmary employs 6 people to answer writs of garnishment on its employees (James Brown, Jr. had had about 20 other writs of garnishment filed against him). Mr. Lou Hillie had been hospitalized shortly prior to the day the writ was served with a severe case of emphysema and never did return to work. One other female employee, in the section where garnishments were handled, was away ill on the day of service. Of the other four employees none were competent to take care of the incoming garnishments in Mr. Lou Hillie’s absence. The writ of garnishment served by appellant was placed in Mr. Hillie’s desk drawer and was not discovered until about October 6, 1978. On that date a response was filed in the Pulaski Circuit Clerk’s office purely because the employees were used to handling such writs with the Pulaski Circuit Court. It was not until October 9, 1978 that a response was filed with the Chancery Clerk in this divorce proceeding. Because of the writ of garnishment, St. Vincent Infirmary had withheld $63.68 from James Brown’s wages on September 29, 1978. Based upon the foregoing record appellant moved for judgment against St. Vincent Infirmary for $1450. The trial court ruled, however, that the circumstances showed ex cusable neglect within the meaning of Ark. Stat. Ann. § 29-401 (Repl. 1962), with respect to a garnishee (employer). We agree with the trial court and affirm. We agree: Harris, CJ., and Holt and Purtle, JJ.

Supplemental opinion on rehearing; rehearing denied. George Rose Smith, Justice, on rehearing. In our original opinion in this case, 246 Ark. 201, 438 S.W. 2d 479, we held that under the provisions of the Uniform Commercial Code the appellants were not entitled to accelerate the maturity of the note and mortgage, because the proof showed that they did not believe in good faith, as the statute requires, that the prospect of pavment or performance had been impaired. Ark. Stat. Ann. § 85-1-208 (Add. 1961). In a petition for rehearing the appellants insist that the Code applies only when the contract permits the creditor to accelerate the maturity “at will,” or words to that effect, whereas here there is also a condition in the contract that the debtors must be in default. The Commissioners’ Comment to the cited section of the Code lends support to the appellants’ argument, for it refers to an acceleration “at the whim and caprice of one party.” See also the Commissioners’ Comment 4 to § 85-3-109. We think it proper to modify our original opinion by leaving that question open for future decision, for even if the appellants are correct in their construction of the Code the decree must nevertheless be affirmed under our prior decisions. Apart from the Code, as indicated in our original opinion, a court of equity will protect a debtor against an inequitable acceleration of the maturity of the debt. We followed that course recently in Crone v. Johnson, 240 Ark. 1029, 403 S.W. 2d 738 (1966). That rule is controlling. As stated in our original opinion, Davis assured Seay that if Davis’ son allowed a delinquency to occur, the elder Davis would make it good within three hours, upon being notified. Seay promised to give such notice, but he failed to keep his promise. Ever since Davis, Sr., learned of the delinquency he has stood ready to pay the arrearages, plus the court costs and an attorney’s fee. It would be altogether inequitable to allow Seay to repudiate his own promise and thereby not only retake the property but also, according to the proof, bring financial ruin upon the older of the two debtors. Hence, without regard to the provisions of the Uniform Commercial Code, the decree of the trial court must be affirmed. The petition for rehearing is according^ denied.

Knox, Special Justice. Seeking.to recover damages for destruction of growing crops by overflow waters which occurred in July, 1932, the fifty-nine appellees each instituted his separate action • against appellant in the Pulaski circuit court. These separate actions were by order of the trial court consolidated for trial and appeal. The gravamen of each of the complaints is, that appellant negligently and without right dug a hole, and placed a.telegraph pole therein, in the crown of a certain levee which had been constructed and which was being maintained for the purpose of protecting the property of appellees and others from the high waters of Pennington bayou; and that by reason of the negligence of appellant in digging said hole and installing said, pole at such place and in such manner, the levee was so weakened that it could not and did not withstand the pressure of the waters against it, and on account of such weakened condition the levee broke, flooding and destroying the crops of appellees. Appellant admitted that it did in fact dig the hole and install the pole at the time and place alleged, but it denied that it was guilty of negligence either in so locating the same, or by reason of the method employed in the installation thereof. Appellant concedes that the crops of ap-pellees were inundated by flood waters occurring at the time alleged, but it contends that there was no causal connection between that fact and its act in setting the pole in the levee. The lands upon which appellees ’ crops were growing are located at various points within an area located near the south line of Pulaski county, which may he roughly described as a shallow basin approximately four miles long (north and south) and two miles wide (east and west). The rim of this basin is formed: on the west by the roadbed of the Missouri Pacific Railroad; on the north by a strip of higher ground running east and west, and located approximately one mile north of the township line between townships 1 and 2 south, range 11 west; on the east by the Arkansas River levee; and on the south by a public road running along the north line of sections 21 and 22, township 2 south, range .11 west. The rim of this basin at its southwest corner, however, is formed by the north bank of Pennington bayou, a stream which flows in a. southeasterly direction traversing both the roadbed of the Missouri Pacific Railroad (the west rim of the basin) and the public road (the south rim of the basin). The natural bank of the bayou between these points is higher than the adjacent'lands, and higher than most of the points within the basin. No artificial embankment runs along the top of the natural banks of the bayou between these points, but at points where ditches empty into the bayou, small dams or levees have been built across the mouths thereof and floodgates installed in such dams or levees.' One such ditch flows south along the east side of the roadbed of the railroad and empties into the bayou at the point where the railroad and the bayou intersect. In 1925, the landowners in the vicinity built a dam across the mouth of this ditch. The top of the dam was approximately level with the natural banks of the bayou to which it was joined. A large iron pipe was placed- so as to run through the dam, at or near its base, to the end of which pipe, on the bayou side thereof, there was attached a cap or gate which .would automatically open and close depending upon the relative elevation of the water in the boyou and in the ditch, thus permitting the water to flow into the bayou when its watérs were lower,- and likewise preventing bayou waters from backing up into ditch in high stages. This dam is locally known and is referred to in the testimony as ‘-‘Byrd levee.” It was in this levee that the pole was set, and it is this levee which, appellees contend, broke and destroyed their crops. Originally constructed as the private undertaking of interested landowners, Byrd levee was, soon after its completion, taken over and maintained by Woodson Levee District as a part of a general system of levees built and maintained by it for the purpose of protecting lands in that area from the floodwaters of the Arkansas river and its tributaries. For many years prior to 1932, — and in fact prior to 1925 when Byrd levee was built — the appellant had maintained its telegraph lines along the right-of-way' of the Missouri Pacific Railroad, and these lines passed directly over the site .of Byrd levee. There is dispute in the evidence as to whether or not there was a telegraph pole in the levee prior to 1932. In April of that year, appellant found it necessary to set new poles along the route of its line, and it set one of these poles in the crown of Byrd levee. There is some evidence in the record tending to show that the Avaters Avhich inundated appellees’ crops did not come from the bayou, but were produced by a rain of tremendous proportion Avhich fell in that vicinity and throughout the Avatershed drained by Pennington bayou. There is .ample evidence in the record from Avhich the jury could have found that the waters in Pennington bayou rose considerably higher than, and overfloAved, its • north bank and the top of Byrd levee, and that the break in the levee, even if it did occur prior to such overflow, was but an incident in an oncoming flood Avhich, with or Avithout such break, would have inundated and destroyed; and did in fact inundate and destroy, appellees’ crops. The trial court submitted the issues to the jury upon instructions Avhich in effect told them that appellees could not recover unless they found from a preponderance of -the evidence (1) that appellant was negligent in setting the pole in the place or in the mariner it did, (2) that the levee broke as the direct result of such negligence, (3) that appellee’s crops were inundated and destroyed solely by water escaping through such 'break, and (4) that at no time during the flood did the waters in Pennington bayou rise higher than, or overflow, its north bank and Byrd levee. Appellant contends that there was no substantial evidence justifying the trial court in submitting these issues to the jury and that therefore the trial court erred in refusing to direct a verdict in its favor. In order that the'effect of other evidence hereinafter referred to may be better understood, it doubtless would be best to here state appellant’s contention more definitely. It is this: 1. That there is no evidence in the record from which the jury could infer- that it was guilty of negligence.. 2. That, while certain eye-witnesses swore that at no time during the flood did Pennington bayou overflow its north bank and Byrd levee, this testimony is so in conflict with the physical facts and with natural laws that it should have been wholly rejected by the trial court as constituting no evidence of that fact. The following facts and testimony, together with others heretofore referred to, are material upon the question of negligence. The top or crown of the levee in which-the pole was set was-about four feet wide. The hole which was dug to accommodate the pole was eighteen inches in diameter and five feet deep, and it was located at or near the center of the crown. After- the pole was -placed, the dirt was replaced and tamped. Testimony of engineers was to the effect that the digging of such a hole and the placing of such a pole in a levee of this character would weaken the levee, especially during the period of time required for the dirt to thoroughly adhere to the pole. Major Baxter, an engineer for the United States War Department and eng'aged in flood control work, testified that if the replaced dirt did not adhere to the pole “it would be almost equivalent to cutting the width of the crown of the levee in two.” He and other engineers testified that in their opinion the vibration of the wires at the top of the pole would cause it to sway and loosen its base. Mr. Rhyne, an engineer called by appellant, testified that if he were charged with the responsibility of maintaining a levee he “would have serious objection” to the placing of a pole therein and would permit it “only in extenuating circumstances.” Appellant’s assistant foreman testified that a longer pole, which was readily available, could have been set either inside or outside the levee, and that the placing of the pole in such manner would not have been contrary to the rules or practices of the company. Another witness who had formerly been in appellant’s employ testified that appellant’s instructions to its linemen were “never to set a pole in a levee.” Three witnesses testified that on the morning of July 4th, while they were standing in close proximity to Byrd levee observing water in the bayou, which then was about two feet below the top of the levee and the banks, the levee suddenly and violently went out at the point where the pole was situated, and that there was formed in the levee a large hole, near the center of which the telegraph pole was swinging suspended by the wires above. To discharge the burden of showing that at no time during the flood did the water in Pennington bayou overflow its north bank and Byrd levee, the appellees offered eight witnesses who testified that they, at frequent intervals during’ the flood, observed the bayou bank and levee and the stage of the water with relation thereto, and that at no time did the water overflow the bank or levee. Mrs. Cora Byrd, one of the appellees, testified that throughout the duration of the flood she remained on her farm which adjoined the levee and the north bank of the bayou, that from her house she could plainly see the levee and, the bayou bank, which she observed almost constantly, and that at no time did the water from the bayou flow over the bayou bank or the levee. The testimony of Mrs. Byrd was corroborated by Walter E. Wilson (a commissioner of Woodson Levee District), S. D. Oliphant (then manager of Brown plantation), Arthur Sowers, Wiley Franklin, Robert Jackson, Dave Williams and L. B. Brown. As further evidence that the north hank of Pennington bayou did not overflow, appellees point to the fact that prior to the flood there was growing on the Byrd land adjoining the bayou a field of alfalfa. Several witnesses testified that during the entire duration of the flood there was plainly visible a green strip of this alfalfa running all along the north bank of the bayou from Byrd levee to the point where the bayou left the Byrd land and entered the land of O. H. Wilson. There also were several witnesses who testified that after the flood this strip of alfalfa continued to live and was cut by the owner that year. There is evidence in the record that if water should run over or stand on alfalfa for as long as two hours during the heat of July it will die. Robert Jackson was that year cultivating a field of cotton which was located on the north bank of the bayou and adjoined the Byrd alfalfa field. There is evidence that a strip of this cotton about seventy-five feet wide, along the bank of the bayou, was not overflowed, but matured. ' ■ Eyewitnesses testifying on behalf of appellant were just as. positive that the water did overflow the bank of the bayou and the levee. The evidence necessary for determination of the question as to whether or not the testimony of appellees witnesses is so in conflict with physical facts and contrary to natural laws as to constitute no evidence of the facts testified to by them is as follows: During.the course of his cross-examination of certain of the appellees and witnesses for appellees, counsel for appellant obtained from them statements as to the depth of the water at various points throughout the flooded area. Appellant then introduced in evidence a contour map of the entire area, showing the elevation of these and all other points in the area, including Byrd levee and the bayou bank. The engineers who made the map testify that it and the various elevations shown thereon are correct and accurate. No engineer testified to the contrary, and in fact Mr. Allen; an engineer for the appellees, testified as to the elevations of many of these points which in the main corroborated the testimony of the engineers testifying for appellant. Our attention is directed to the elevations shown by the map at nine points, and the testimony of the witnesses as to the depth of the water at these points. They are: 'Byrd levee was rebuilt after the flood, and there is evidence that it was built higher than the original levee. Allen, appellees’ engineer, placed the low point of the levee proper at 231.29 feet; appellant’s engineers placed the low point in the levee proper at 231.4 feet. Allen testified that the' elevations of the north bank of the bayou varied from 230.65 to 232.8 feet. Appellant’s engineers testified that the elevations along this bank varied from 230 to 231.6 feet. None of Allen’s elevations are below 231 feet except the one of 230.65 feet which is at a point several hundred feet down stream. The evidence shows that the natural fall of the water is 6% feet between Byrd levee and Woodson Flood Gate, a distance of about IV2 miles, and it is argued that this makes this lower elevation unimportant. Counsel for appellant appear to concede this, for in brief ánd argument they apparently accepted 231 as the low point testified to by Allen. Little Rock-Pine Bluff Highway. Appellees admit that some Avater flowed over this road at its low point. The elevation of this point is fixed by Allen at 230.85 feet and by appellant’s engineers at 231.4. W. C. Coleman, one of the appellees, estimated the depth, by reason of observing children wading in it, to have been from 4 inches to 1% feet deep. One of appellee's witnesses daily drove a truck through it and estimated the depth as having been 16 or 18 inches. Turner House was located on land, the elevation of which, according to the contour map, was 230., Appellee Coleman, who was familiar with the house, estimated that the water rose against this house from two to three feet. Witness Lester testified that it did not exceed ten inches. The pump at Hugh Brown rainshed was on land, the 'elevation of which, according to Allen, was 228.25. Witness Lester testified that he drove a wagon through there and the water came up to the bed of the wagon. He estimated the depth at 5 feet. Griffin Dennis testified that water g’ot all over his land. He waded through it and estimated the depth at' the highest point to be iy2 feet. The highest point on his land, according to the testimony of appellant’s engineers, is 231. Alec Vaughan had corn planted on land, the elevation of which, according to the map, is 228. He testified that he did not know how deep the water was. That it was above the ears of the corn. That corn grew shoulder high on the average. Clem Murdock was growing corn on land, the elevation of which, according to the map, was 228. He testified that water was up to the ears of his corn and he estimated it to be five feet deep. The Bassler Milkliouse is located on land, the elevation of which, according to the map, is 232.5. Mr. Bass-ler testified that the water got in and on this milkhouse —and from watermarks left he estimated the depth at 23 inches. The highway at Wilson ditch, a point within the flood area less than a half mile south of the point on the highway above mentioned,'.was, according to the. undisputed evidence, never overflowed. The elevation of this point is, according to the map, 231.3. Many assignments of error are set out in the motion for new trial, but appellant’s argument is confined to the assignments covering three points, to-wit: (1) there is no evidence of negligence, (2) the verdicts are contrary to natural law and (3) some of the verdicts are excessive. . Recognizing and observing the restrictions placed upon it by the Constitution, this court has repeatedly declared that, on an appeal from a judgment based upon a verdict of a jury, it can consider the facts only for the purpose of determining whether or not there is in the record any evidence of a substantial character which, when given its highest probative' value, together with all inferences reasonably deducible therefrom, is sufficient to sustain the verdict. Cleveland-McLeod Lbr. Co. v. McLeod, 96 Ark. 405, 131 S. W. 878; Prairie County v. Harris, 173 Ark. 1182, 295 S. W. 725; Texas & Pac. Ry. Co. v. Stephens, 192 Ark. 115, 90 S. W. 2d 978. This court cannot determine the weight and credibility of the evidence, for those are matters which under the Constitution are left to the jury and- trial court. Duff v. Ayers, 156 Ark. 17, 246 S. W. 508; Moore v. Thomas, 132 Ark. 97, 200 S. W. 790; Jonesboro Coca-Cola Bottling Co. v. Holt, 194 Ark. 992, 110 S. W. 2d 535. Where there is a conflict in the evidence the determination by the jury of the issues is conclusive. “The fact that this court would have reached a different conclusion , . . or that they (the judges) are of the opinion that the verdict is against the preponderance of the. evidence, will not warrant the setting aside of a verdict based upon conflicting evidence.” Missouri Pacific Ry. Co. v. Hampton, 195 Ark. 335, 112 S. W. 2d 428. Counsel for appellees argue that in consideration of the question as to the sufficiency of the evidence to sustain the finding of negligence this court is bound, under the doctrine of the law of the case, by the case of Western Union Telegraph Company v. Turner, 190 Ark. 97, 77 S. W. 2d 633. That qase was a companion case to the ones now being considered. ’ Turner recovered judgment against appellant for destruction of crops growing* in the same area, and inundated by the same overflow, upon allegations and evidence of negligence substantially the same as those presented by the record here. On appeal this court held that the evidence as to negligence presented a question for the jury. The doctrine of the law of the case is analogous to the doctrine of res judicata, and, like it, has no application in cases between different parties. Although a decision on a prior appeal in a case between different parties, but involving the same subject matter, does not become the law of the case, yet a decent respect for the stability of judicial decision requires that the former decision be followed on the doctrine of stare decisis, and not disturbed unless there was very palpable error. Walker Patent Pivoted Bin Co. v. Miller & England, 132 Fed. 823; City of Cleveland v. Cleveland etc. Ry Co., 93 Fed. 113, 4 C. J. 1106. It is our conclusion that the evidence set out in the opinion in the Turner Case, and, also, the evidence disclosed by the record here, required the trial court in each instance to submit the question of negligence- to the jury. This evidence and the law applicable thereto was fully discussed in the Turner Case and a repetition thereof would unduly lengthen this opinion and serve no useful purpose. Under the instructions of the trial court in this case, the jury, in order to find for appellee, was required to find that the water which destroyed their crops came through the break in the levee, and that at no time did the water overflow the bank of the bayou or the levee. Appellant insists that there was no substantial evidence from which the jury could have found this necessary fact, and that for that reason the trial court should have directed a verdict in its favor. Stated more fully, appellant’s contention is that the testimony of the eight eye-witnesses, who swore that the water did not overflow the bayou hank and the levee, is in conflict with the physical facts and contrary to natural law, and, therefore, should have been rejected by the trial court as so unworthy of belief as to constitute no evidence of the facts sworn .to. It is the general rule that, on a motion for a directed verdict, the court must take or consider as true all competent evidence or testimony which is in favor of the party against whom the motion is directed. Burcher v. Casey, 190 Ark. 1055, 83 S. W. 2d 73. This rule is, however, subject to the qualification that testimony which is in conflict with undisputed physical facts, or contrary to the unquestioned laws of nature, of mathematics, of mechanics, or of physics, should be rejected as wholly barren of evidentiary value. St. Louis S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768; Magnolia Petroleum Co. v. Saunders, 193 Ark. 1080, 104 S. W. 2d 1062. Where there is conflict or dispute in-the evidence- as to the existence of a physical fact, the question is for the jury. Kansas City Sou. Ry. Co. v. Henrie, 87 Ark. 443, 451, 112 S. W. 967. Likewise, it-follows that, if testimony is to be held contrary to natural law, only in case certain facts are accepted, and there is conflict or dispute in the evidence as to the existence of such facts, the question is for the jury. The natural law invoked by appellant is the law of gravity, in its action upon unrestrained and naturally flowing water. In short — that water seeks its level and will not rise higher than its source. Counsel for appellant point to the testimony of various of the appellees and their witnesses as to the depth reached by the water at seven points within the flood area, and to these depth measurements they add the elevations for these points, as testified to by the engineers, which sum in each instance materially exceeds the elevation of the Byrd levee and the bayou bank, as testified to by the engineers. In fact, according to the testimony of .the engineers, one such point is, itself, higher, another is equal to, and a third only slightly lower, than the elevations of the bayou bank and levee. Counsel’s argument is this: —that since water will not rise higher than its source, and since the evidence shows that within the overflow area it did reach heights greater than the height of the levee and the bayou bank from which it came, then it must follow that the water. reached that height at the bayou and of course overflowed its banks, and, therefore, the evidence of the eye-witnesses that the bayou did not overflow, and the verdict of the jury based thereon, must be rejected as being contrary to natural law. This conclusion would be correct, provided the jury was bound to accept as true (1) that the relative elevations of these seven points and the bayou bank and levee were as testified to by the engineers and (2) that the water reached these points and covered them to the depth testified to by the witnesses, or at least to a depth which, when added to the elevations, exceeded the elevation of the bayou bank and levee. It is true that neither the testimony of the parties as to the depth of the water, nor the testimony of the engineers as to the elevations, is directly contradicted, but such testimony need not for that reason he regarded as undisputed, if from other facts and circumstances in the record any reasonable inference can be drawn contrary thereto. Jolly v. Meek, 185 Ark. 393, 47 S. W. 2d 43; Paragould & M. R. Co. v. Smith, 93 Ark. 224, 124 S. W. 776; St. Louis S. W. Ry. Co. v. Trotter Minnis, 89 Ark. 273, 116 S. W. 227. Since, if this testimony.be true, the testimony of the eyewitnesses must be false, then by inverse reasoning it follows that if the testimony of the eye-witnesses be true, then this testimony, or one branch thereof, at least, must be false. It follows then, that not only does this testimony contradict, but is, itself, contradicted by the testimony of the eye-witnesses that the bayou did not overflow its banks. Here, then, we have testimony supporting three facts, any two, but not all three, of which can stand together in harmony with the natural law that water seeks its level. If the water did not overflow the bayou bank, and the relative elevations are .as- testified to by the engineers, the testimony that the water did at these seven points reach depths which, when added to the elevation of those points, would exceed the elevation of the bayou bank, must be rejected as being contrary to natural law. If, however, the water did not overflow the bayou bank, but did at the same time reach depths at these seven points as testified to by the witnesses, then the testimony of the engineers as to the relative elevations of these points and the bayou bank must be rejected as being contrary to natural law. Likewise, if the relative elevations are as testified to by the engineers, and the water did in fact reach and cover these seven points to the depths testified to or to any depth which, when added to the elevations of such points, exceeds the elevation of the bayou bank, then the testimony of the eyewitnesses that the water did not overflow the bayou bank must be rejected as being in conflict with natural law. It is the general rule, too well established to require the citation of authorities, that when the testimony is in irreconcilable conflict, the question is one in the exclusive province of the jury, it being their duty to reject that part of the testimony which they believe to be false and accept that part which they believe to be true. • This rule must apply here unless, either on account of the manner of its introduction, or on account of the character of the testimony itself, the jury would have been required, under the law, to accept as true both the testimony of the engineers and the testimony of witnesses as to the depth of the water. Counsel for appellees contend that the record discloses that all of the land upon which the crops were growing is shown by the testimony of the engineers to be materially lower than the bayou bank, and, therefore, it was unnecessary for the jury in arriving at their verdict to give credence to the testimony relative to the depth of the water at these seven points. Counsel point out that when the testimony of these witnesses is compared one with the other an impossible condition is disclosed —that of the same body of still water being at different levels. Counsel, also, contend that the error of this testimony is demonstrated by the undisputed facts that the water did not reach or cover other points in the area which, according to the testimony of the engineers, were much lower than the sum of the . depth of the water and the elevation of the land at. these points. They particularly direct our attention to the undisputed fact that the highway at Wilson ditch was not covered, a point within the flood area, the elevation of which, according to the engineers, was 231.3 feet, only 3/10ths of a foot higher than the' bayou bank. Counsel for appellees argue, therefore, that the jury was not required to accept the testimony as to the depths of the water, that in arriving at their verdict they could have and doubtless did reject it. On the other hand, counsel for appellant point out that nearly all of this testimony came from thé lips of appellees, themselves, and the remainder from their witnesses, and, therefore, they argue that appellees are bound by such testimony. A determination of the questions, thus presented, would require a careful review and analysis of the' evidence, and a consideration and application of the law relating to the questions of when, to what extent, and under what circumstances, is a party bound (1.) by his own testimony, (2) by the testimony of parties .to other actions consolidated and tried with his, and (3) the testimony of his witnesses. In view of the conclusions hereinafter stated we deem it unnecessary to consider these questions. For the purpose of this opinion we may accept as an established fact that the water did at some or all of the points reach the maximum depth testified to by the witnesses. This brings us to the question of whether or not the jury was required to accept as true the testimony of the engineers as to the relative elevations. For the moment we will consider the question as if all this testimony had been produced by appellant. The question of whether or not appellees are bound by the testimony of their own engineer will be discussed later. This court has often declared that testimony, of ex^ pert witnesses is to be considered by the jury in the same manner as other testimony, and in the light of other testimony and circumstances in the case; that they alone determine its value and weight, and may, under the same rules as apply to other evidence, reject or accept all or any part thereof -as they may believe it to be true or false. Nelon v. Nelon, 171 Ark. 505, 284 S. W. 743; Missouri P. R. Co. v. Hall, 186 Ark. 270, 53 S. W. 2d 432; Home Indemnity Co. v. Jelks, 187 Ark. 370, 59 S. W. 2d 1028. It is suggested that the above rule applies only to ‘ ‘ opinion evidence, ’ ’ and that the rule is different where, as here, the expert witness is a civil engineer and is testifying to precise measurements made by him in accordance with approved scientific methods. We are cited to no authority in support of this contention, and we have found none. This court held directly to the contrary in the case of Western Union Telegraph Co. v. Turner, supra, where the general rule was applied to testimony identical in character with that now being considered. The decision in the Turner Case on this point appears to he in accord with the decisions in other jurisdictions. Holcomb v. Alpena Power Co., 175 Mich. 500, 141 N. W. 534, was a case for damage caused by overflow. In that case Mr. Justice OsteaNdee, speaking for the Michigan Supreme Court, says: “A series of levels, made by engineers, as reported and testified to by them, shows that . . . the surface of the land is five feet or more above the level of the lake when the level is the highest. The testimony of the engineers is regarded as conclusive by defendant, opposed as it is by testimony of non-scientific observation ... In short, it is claimed that the infirmity of plaintiff’s theory was demonstrated, and that the jury should not have been permitted to determine whether the water of the lake affected land distant from its banks . . . the level of the land being . . . higher than the level of the water. In making’ the claim we think counsel lose sight of the fact that the testimony of the engineer may not have been believed by the jury, when contrasted, as it was, with the testimony of other wit-, nesses . . .” The Supreme Court of Georgia holds that the testimony of eye-witnesses to the fact that land was overflowed may be accepted by the jury as'true, in preference to the opinion of an expert, based on measurements made by him, that such overflow could not have occurred. Southern Ry. Co. v. Ward, 131 Ga. 21, 61 S. E. 913. The Supreme Court of New Mexico holds that evidence that water did flow in a certain direction is not rendered insubstantial by testimony of topographical engineers that it could not have done so. Sanchez v. A. T. & S. Ry. Co., 33 N. M. 240, 264 Pac. 960. We are convinced that the correct rule is, and we, therefore, hold, that where a civil engineer testifies that a topographical survey made by him reveals that land at one point is higher than at another, and such testimony is in conflict with testimony of eye-witnesses who testify that the same body of water covered the point shown by the survey to be the higher, but did not reach or cover the point shown by that survey to be the lower, such conflict is for the jury. The next question is this: were appellees bound by the testimony of the engineer who testified in their .behalf, and who, in substance, at least, corroborated the testimony of appellant’s engineers as to the relative elevations of these seven points,and the bayou bank? In the case of Midland Valley Ry. Co. v. Lemoyne, 104 Ark. 327, 148 S. W. 654, Mr. Justice Wood, speaking’ for this court, said: “The testimony of witness Taylor tended to show that there was no negligence whatever, but the testimony of the other witnesses for appellee tended to show thát there was negligence. The appellee was not bound by the testimony of witness Taylor, although introduced by her. It was for the jury at last to say what weight they would give to his .testimony. ‘ The primitive notion,’ says-Mr. Wigmore, ‘That a party is morally bound by the statements of his witnesses no longer finds defenders, although its disappearance is by no means very far in the past.’ ” We perceive no reason why a different rule should apply to the testimony of expert witnesses. The reason for the rule, it has been stated, is that, if it were otherwise, a party “would be at the mercy of his own witnesses. ” 28 R. C. L. 643. This would be true' whether the witnesses were lay or expert. We are, therefore, of the opinion that it was the province of the jury to decide the conflict existing between the testimony of the engineer who testified on behalf of appellees, and the eye-witnesses who also testified on their behalf. The judgments in favor of certain appellees are excessive. To aid them in determining the value of these immature crops, the trial court permitted the jury to consider testimony as to the market value of the products during the period from the date óf the destruction to and through the time in which said crops, but for their destruction, would have been, ordinarily, harvested and marketed. The market value of such products during such period, of course, varied. There is some evidence tending to show that at some time or times during said period the market price of such products reached, but no evidence to show that they exceeded, the figures shown for the following products: corn, 50 cents per bushel; cotton, 9.14 cents per pound; cotton seed, $20 per ton; alfalfa, $20 per ton. The lowest cost of harvesting and preparing such products for the market shown by the testimony is: pick-' ing the cotton, $7.50 per bale; ginning cotton, $4.50 per bale; bagging and ties, $1 per bale; gathering corn, 2 cents per bushel; cutting and baling alfalfa, $1.80 per ton. The cost of picking’ cotton on the entire crop, that part which goes to the landlord and that which is retained by the tenant, must, under the evidence, be borne by the tenant. As to the cost of ginning the matter is not clear, and we have in our calculations charged each party the cost of ginning his own part. There is no dispute in the evidence as to quantity of each product the various appellees lost. Taking as the basis for calculation the highest market prices for the' products, and the lowest cost of harvesting, the loss sustained by the following named ap-pellees could not have been more, and, therefore, the respective judgments in their favor should not have exceeded the following amounts together with interest thereon at the rate of 6 per cent, per annum from August 1st, 1932: Dave Williams $486.90; Gathan Poe $378; Melvin Lucas $454; Joe Montgomery $393.68; W. M. Toy $388; Clem Murdock $258.27; Gertrude and Will Waters $364.03; Charlie Folks $110; Will Furdge $460.50; Marshall Rosby $602.56; Richard Vaughan $333; W. S. King $248.74;. Charlie Dixon $724.80; Savannah Williams $52.80; Sam Miller $65.99; Will Owens $1,684.27; Earl Boyd $686.96; Len Verden $372.80; Fred Scipio $220; Alec Vaughan $284.80; Joe Lumpkin $714.50; Grif fin Dennis $546.65; Walter Perkins $728.18; Bob Lipscomb $559.63; Elbert Gray $569.83; Joe Smith $759.15; McKinzie Goines $853.26; Douglas Surratt $936.24; Will Gordon $1,224.87; Harrison Gordon $1,224.87; Albert Jones $210; Percy Withers $964.73; Tammy Fuller $1,032.06; Ed Holmes $729.05; Henderson Withers $1,007.39; James Goines $786.12; Dock Handy $745.99; F. S. McGehee $414.55. Each of the judgments in favor of the appellees mentioned in this paragraph will therefore be modified by reducing the same to the respective amounts shown, to which amounts, however, there shall be computed and added interest at the rate of 6 per cent, per annum from August 1st, 1932; and said judgments as so modified are affirmed. Appellee, W. M. Bowman, recovered judgment for $1,347.50. He described himself as a renter on the Wilson farm, but failed to say whether his rent was payable in cash or in products, and if in products in what proportion. If his rent is computed on a 50 per cent, basis, then his loss would have been $429.82. If his rent had been one-fourth of the crop, or if he had paid cash rent, and therefore entitled to all. of the proceeds, his loss could not have reached the amount awarded him. In his complaint he prayed for judgment for $410.27. Of this sum $20.27 represented alleged loss of alfalfa, and $390 for loss of cotton. There is no proof of loss of alfalfa. The amount stated in his complaint for loss of cotton alone, to-wit $390, measures Bowman’s maximum possible recovery. Hudspeth & Sutton v. Gray Durrive & Co., 5 Ark. 157; White v. Canada, 25 Ark. 41; Williamson v. Chicago Mill & Lbr. Co., 51 Fed. 2d 551. The judgment in favor of appellee Bowman will, therefore, be modified by reducing the same to the sum of $390, to which sum, however, there shall be computed and added interest at the rate of 6 per cent, per annum from August 1st, 1932. Such judgment as so modified is affirmed] The respective judgments, in all cases involved in this appeal, which are not herein expressly modified, are affirmed. Appellant may have l/59tli of its costs on appeal from, each appellee whose judgment is modified. Gtrieein Smith, C. J., Smith and McHaney, JJ.,. dissent. Donham, J., disqualified and not participating.

David Newbern, Judge. The appellants were charged with first degree battery and were found guilty of the lesser included offensé of third degree battery, a class A misdemeanor. Ark. Stat. Ann. § 41-1603 (Repl. 1977). In points one, two and four of their brief, the appellants argue insufficiency of the evidence as a basis for conviction, error by the court in failure to instruct a verdict and error in failure of the court to enter a judgment of not guilty despite the jury’s verdict of guilty. We will address these points together as they all deal essentially with sufficiency of the evidence, and we find the evidence was sufficient to make a jury question. We decline to consider the appellants’ third point which urges reversal for failure to consider and failure to give instruction proffered by the appellants. The appellants did not abstract any of the instructions proffered or any instruc tions given by the court. See Ellis v. State, 267 Ark. 690, 590 S.W. 2d 309 (Ark. App. 1979), in which this court discusses the history of the requirement that instructions be abstracted. See also, Rule 9 (d) of the Arkansas Supreme Court and Court of Appeals, and Williams v. Fletcher, 267 Ark. 961, 593 S.W. 2d 48 (Ark. App. 1979). Another reason we decline to consider this point is that no case or other authority is cited in the appellants’ brief, and no argument is made from which we might evaluate whether the appellants were prejudiced in any way by the court’s handling of their proffered instructions. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977). George Pugh kept beer in returnable bottles in a cooler in a structure adjacent to his home. He kept a close watch on the beer, placing exactly eight bottles in his ice box at a time. He suspected the beer was being pilfered, and on one occasion previous to the night of the event giving rise to this case, he chased an intruder from his yard and fired a shot, apparently for the purpose of frigtening the intruder. On the evening of November 26, 1977, Mr. Pugh observed some of his beer was missing. He also observed a car moving slowly up and down a road behind the wooden fence at the rear of his property. Mr. Pugh obtained his loaded .22 caliber pistol from his kitchen and walked into his back yard. It was dark and although his outdoor night light was on, he saw ho one. He testified thát he simultaneously heard and felt a gunshot and received a wound in his face. He then ran for cover and fired his own weapon several times in various directions. He was not firing at a target, as he still saw no one. He was not seriously injured by the bullet, and he thereafter got in his car and drove it on the road behind his house where the car he had seen earlier was parked. He observed appellant Adcock in the parked car. Without getting out of his car, he returned to his home. The sheriff s office was notified, and Mr. Pugh accompanied Deputy Bates in the sheriffs vehicle. They first sought to investigate the occupants of a pick up truck moving on a street near Mr. Pugh’s house, but on seeing the truck’s occupants, a young couple, decided they could not have been involved in the incident. They then drove up to the parked car earlier referred to and found it occupied by the appellants. The appellants professed not to know what was going on. They apparently were just sitting in the car drinking beer. They cooperatively accompanied the deputy and Mr. Pugh to the “station.” A later search of the car revealed several fire arms, none of which was capable of firing a .22 caliber projectile. One of the weapons was a 16 gauge shotgun. Along with other ammunition, one .22 caliber bullet was found in the car. Neither the briefs nor the record makes it clear whether it was a spent casing or an unfired bullet. In addition, a 16 gauge shotgun shell was found the following morning in the yard near where the beer was stored. A full bottle of beer was found in the yard near to where the shotgun shell was found, and several empty beer bottles of the same returnable type were found near the place where the car occupied by the appellants had been parked the previous night. The investigation also revealed the fence had two fresh bullet holes which had been made by firing through the fence from outside the yard toward the interior of the yard. There was testimony that the holes could have been made by either a .22 caliber bullet or a heavy shotgun pellet. The bullet removed from Mr. Pugh’s jaw was a .22 caliber. The appellants argue no evidence whatever connects them with the crime because no .22 caliber weapon was found in the car or otherwise in their possession. We concur in the appellee’s position that it was not necessary that such a weapon be found if the other circumstantial evidence in the case was sufficient to go to the jury and thus constitute a basis for conviction. As no one saw any of the appellants shoot Mr. Pugh, the evidence recited above is circumstantial. That does not make the evidence insubstantial. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975); Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974). We hold the evidence found in Mr. Pugh’s yard, i.e., the shotgun shell and full beer bottle, and the evidence found in the car occupied by the appellants and about the ground where it had been parked, i.e., the guns and ammunition as well as the beer bottles of the same peculiar kind as those kept by Mr. Pugh, when combined with the fresh holes in the fence which could have been made by a .22 bullet, were sufficient to exclude, in the minds of the jurors, other reasonable hypotheses showing how Mr. Pugh was shot. Thus, we regard the evidence as sufficiently substantial to support the conviction. Affirmed. A crime laboratory report entered as a joint exhibit said the four bullet fragments removed from Mr. Pugh's jaw were from a bullet which is of .22 caliber size, rather than from a bullet "appearing" to be .22 caliber as stated in the appellee's brief.

Darrell Hickman, Justice. Luke Edward Davis was convicted by a jury in the Pulaski County Circuit Court of aggravated robbery and sentenced as an habitual criminal to 30 years’ imprisonment. On appeal he alleges one error: The trial court improperly admitted as evidence certain pre-trial statements made by Davis. David Stockston was delivering cigarettes to vending machines at the East End Cafe in North Little Rock, Arkansas on September 26, 1978. He testified that as he was leaving, two men, one of whom had a gun, robbed him of his money bag. He identified Davis as one of the men. Two North Little Rock policemen arrested Davis without a warrant at the East End Cafe about 1:30 p.m. on the 9th of October. They took Davis to the police station and, as they were taking him inside, saw Stockton, the victim, seated at the desk. Davis immediately said, “This is the man that thinks I robbed him,” walked over to Stockton and added, “Tell them I didn’t rob you.” The exact words varied according to the testimony of the officers and Stockton, but essentially the testimony was the same. Davis argues that these statements should have been excluded as evidence because they occurred during a “critical stage” of the legal proceedings when Davis was without legal counsel. Davis cites as controlling the case of U.S. v. Wade, 388 U.S. 218 (1967). We disagree that the Wade case, or any other decisions, required the exclusion of the statements. First, there is no evidence that there was a line-up as there was in Wade; in fact, the appellant concedes that there is no evidence that the police intended for there to be a confrontation between the victim and the accused as it occurred. Stockton said he was asked to come to the station to sign a warrant. Next, Davis had been warned of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966). The statements were simply spontaneous, and in the absence of any evidence of impropriety of the part of the police, they were properly admitted. Affirmed. We agree. Harris, C.J., and George Rose Smith and Fogleman, JJ.

Prank Holt, Justice. This is an appeal from the refusal of the trial court to transfer this cause to chancery court. The appellee, Westark Production Credit Corporation, is a lending agency which makes loans to its members. Loans were made to the Keeton industries which is a conglomerate operation consisting of the parent corporation, Keeton Farms, Inc., and its wholly owned subsidiaries, Keeton Mills, Inc. and K. &. W. Produce, Inc. Appellee Westark secured its loans by a first lien upon any poultry grown and produced by its debtors. ¡Subsequently, K. & W., the marketing arm of Keeton, assigned to appellee Westark all of the money due or to become due from appellant, Poultry Growers, Inc., which had contracted to purchase poultry produced by K. & W. Appellee Westark filed this action, alleging that by virtue of this assignment the appellant, Poultry Growers, is indebted to Westark in the sum of $26,313.11 for poultry sold and delivered by K. & W. to Poultry Growers pursuant to their contract. The appellant, Poultry Growers, admitted the contract with K. & W., the amount due under the contract, and that it had received from appellee Westark a notice and copy of the assignment of the indebtedness. Poultry Growers is one of the wholly owned subsidiaries of appellant Tyson’s Foods, Inc., which is also a conglomerate enterprise and engaged in the poultry industry. Subsequent to appropriate pleadings by the appellant Poultry Growers, the appellant Tyson’s Foods, Inc. filed a motion for intervention, an intervention, and a plea for equitable setoff for $19,885.36 allegedly due from K. & W. Produce and Keeton Farms to appellants, Tyson’s Foods and/or Poultry Growers. On the same date the appellant Poultry Growers amended its answer, which right it had specifically reserved, and alleged substantially the same matters contained in the intervention of its parent corporation. Also on the same date, the appellants filed a joint motion to transfer this action to chancery court in order that their respective pleas for an equitable setoff could be presented. After a hearing, it appears that the trial court denied the motion to transfer. No formal order was entered and the case was set for trial. A few days before the trial date, Tyson’s filed an amendment to its original intervention, alleging a breach of contract on the part of appellee, Westark, in that Westark promised that any amount owed to Tyson’s by Keeton Farms or its subsidiary would be offset against the indebtedness of Poultry Growers. When the parties appeared on the date set for trial, the trial court refused to allow Tyson’s to amend its intervention. This was refused because the amendment was not timely filed since appellee’s attorney had not received any notice. The trial court ordered that this amendment to the intervention be stricken from the record. The appellants renewed their motion to transfer the cause to chancery court which was again denied. After opening statements were made to the jury and certain stipulations were agreed upon, appellants, by leave of the court, made an offer of proof. The trial court again denied appellants’ motion to transfer and granted appellee. Westark’s motion for a directed verdict. Judgment was entered on the directed verdict and this appeal follows. For reversal the appellants contend that the trial court erred in refusing to transfer the cause to chancery court to permit them to offer" their respective pleas and invoke the doctrine of equitable setoff which is exclusively cognizable in equity. We think the appellants are correct. The appellee, Westark, argues that the trial court refused to allow Tyson’s to intervene, that Tyson’s did not appeal from that ruling and is, therefore, not properly a party before this court. Appellee further asserts that the lower court did not err in refusing to transfer the cause to chancery because Tyson’s Foods is not a party to the contract between K. & W. and Poultry Growers and it cannot pierce the corporate veil of its subsidiary, Poultry Growers, nor can the subsidiary pierce the veil of its parent. Appellee submits that while no formal order is found in the record overruling Tyson’s motion to intervene, “ it is amply clear from the record that the court so ruled.” We find no merit in any of these contentions. Appellant Tyson’s Foods, the parent corporation, filed its motion to intervene on September 5, 1968. Subsequently there was admittedly a hearing upon the motion to intervene, the appellant K. &. W.’s amended answer, and appellants’ joint motion to transfer the cause to chancery. We find no order disposing of these motions. Thereafter, or on September 27, appellant Tyson’s filed an amendment to its intervention, alleging a breach of contract on the part of appellee Westark. On the day set for tidal, October 1, it was revealed that neither opposing counsel nor the court had seen or received a copy of the amendment. The court struck Tyson’s amendment to its intervention on the ground that it was not timely filed and again refused appellants’ joint motion to transfer the cause to chancery court. As we construe the record, the trial court made no ruling at any stage of the proceedings that Tyson’s could not intervene in the case. From the record it appears that the court struck appellant Tyson’s amendment to its intervention, sustained appellee’s objection to certain evidence, permitted appellants’ offer of proof, and denied appellants’ joint motion to transfer to chancery court. In Tyson’s motion for intervention, intervention, and its plea for an equitable setoff, and in Poultry Growers ’ amendment to its answer, which is substantially the same as Tyson’s intervention, it was alleged that the subsidiaries of Tyson’s, which included the appellant Poultry Growers, were operated as mere departments of the parent; that the subsidiaries of Keeton’s were similarly operated as departments of the parent; and that both parent companies and their subsidiaries were conglomerate operations relating to the poultry industry; that in the dealings between the parties, Tyson’s and its subsidiary companies were considered as one entity by all the parties, including the appellee Westark; that the Keeton companies were likewise considered .as one entity; that in their dealings, the consolidated; balance sheet of the Tyson’s companies and the consolidated balance sheet of the Keeton enterprises were relied upon by each other; that the $19,885.36 which Tyson’s seeks to apply as an equitable setoff resulted from the sale of certain products, such as hatching eggs, feed, and propane gas, to the Keeton complex; that these supplies were in turn used to produce the poultry which is the subject matter of the contract between K. & W. and Poultry Growers; that the pending suit filed b}7 appellee Westark is based upon the assignment of this contract; that appellee Westark was active in supervising and conducting the business of the Keeton conglomerate; that appellee Westark directed the purchases by Keeton and its subsidiary from the Tyson’s complex and conspired with the general manager of the Keeton companies to refuse to pay the appellants with the intention to take the assets of the Keeton companies for its own benefit, leaving the Keeton companies hopelessly insolvent and the account owed to appellants uncollectible; that within a short time after the purchase of the supplies from Tyson’s and after the sale of the poultry which is the subject matter of appellee Westark’s complaint, Westark placed the Keeton companies in receivership and ultimately in bankruptcy, leaving the companies no assets with which to pay the account owed to Tyson’s. The appellants ’ proffered proof tended to substantiate these allegations contained in the intervention. This proof was expressly permitted by the court. Therefore, we cannot agree with appellee that the court had refused to permit the intervention. The court had the right to permit the intervention and the offer of proof in support thereof. Ark. Stat. Ann. § 27-815 (Repl. 1962). There it is provided that “Where, in an action for the recovery of real or personal property, any person having an interest in the property applies to be made a party, the court may order.it to-be clone.” Certainly, appellant Tyson’s is an interested party in the controversy between the original parties and in the recovery of its open account. We think that either the appellants’ pleadings or the proffered proof sufficiently raised the defense of an equitable setoff and, therefore, entitled appellants to the requested transfer to chancery court where they could have the opportunity to present their theory of this case. Ark. Stat. Ann. § 27-212 (Repl. 1962) provides: “Where the action has been properly commenced by proceedings at law, either party shall have the right, by motion, to have any issue which before the adoption of this Code was exclusively cognizable in chancery tried in the manner hereinafter prescribed in cases of equitable proceedings, and if all the issues are such as before the adoption of this Code were cognizable in chancery, though none were exclusively so, the defendant shall have the right to have them all tried as in cases of proceedings in equity.” A defendant, when sued at law, must make all the defenses he has in that proceeding, both legal and equitable. and if any of them is exclusively cognizable in equity, the defendant is entitled to have such defense tried as in equitable proceedings and the case transferred to equity. Childs v. Magnolia Petroleum Co., 191 Ark. 83, 83 S.W. 2d 547 (1935); Wright v. Lake, 178 Ark. 1184, 13 S.W. 2d 826 (1929). In Washington Standard Life Ins. Co. v. Agee 231 Ark. 594, 331 S.W. 2d 261 (1960), we said: “If the motion alleges facts which, if proved, entitle the movant to relief obtainable only in chancery, it is not the province of the circuit court to explore the equitable issue in its entirety with a view to transferring the ease only if a preponderance of the evidence establishes the right to an equitable remedy.” We have long recognized the doctrine of equitable setoff. Ewing-Merkel Electric Co. v. Lewisville Light & Water Co., 92 Ark. 594, 124 S.W. 509 (1909). There we quoted with approval: “It has already been suggested that courts of equity will extend the doctrine of set-off and claims m the nature of set-off beyond the law in all cases when peculiar equities intervene between the parties. These are so very various as to admit of no comprehensive enumeration.” It is a familiar maxim that ‘ ‘ equity regards the substance and not the form.” The relief sought by the appellants in the case at bar finds support in Black & Decker Mfg. Co. v. Union Trust Co., 53 Ohio App. 356, 4 N.E. 2d 929 (1936); Bromfield v. Trinidad Nat. Inv. Co., 36 F. 2d 646 (10 th Cir. 1929); In re Harr, 319 Pa. 89, 179 A. 238 (S.C. Penn. 1935); Knight v. Burns, 22 Ohio App. 482, 154 N.E. 345 (1926); Love v. Vina Banking Co., 168 Miss. 321, 150 So. 754 (1933). We hold that sufficient peculiar equities are alleged in the pleadings or exist in the proffered proof, either of which entitles appellants to have this cause of action transferred to the chancery court so that their respective pleas for an equitable setoff can be presented and considered. Accordingly, the judgment is reversed and the cause remanded. Byru, J., dissents.

Holt, J. This case comes here from a judgment in favor of appellee, in an action of unlawful detainer, in which the Pulaski circuit Gourt, Third Division, sitting as a jury, held appellee to he entitled to monthly rental increase of $87.50 from April 1, 1938, and $50 rent for the month of March, 1938, and for possession of the building in question. The appellee/Arkansas Properties .Corporation, alleged in its complaint that it was the owner of the office building, in question, and “that defendant entered into possession of office room No. 1001 in said building on the first day of August, 1937,. under an agreement to pay therefor the sum of $50 per month for said offices, and on the first day of February, 1938, the defendant' was duly and legally notified that, commencing March 1, 1938, its rent would be increased from $50 to $137.50 per month and defendant is still in possession of the heretofore described offices; that defendant has since the first day of February, 1938, refused and failed to pay rent therefor, although said rent was then due and has been due and payable since the first day of February, 1938, and although over three days’ notice to quit and a demand in writing for possession thereof by Isgrig & Robinson, agents for the plaintiff, defendant has refused to quit such possession and still holds the same and unlawfully detains the same from the plaintiff,” and further that the defendant was indebted to it in the sum of $50 rent accrued on said property for the month of February, and prayed judgment for possession of said property, for $50 réntal then due and for all rents that may accrue pending the suit and for all other proper relief. Appel lant, Arkansas Fuel Oil Company, after denying every material allegation in the complaint, set np the following additional defense: “Defendant states that it is occupying the premises described herein under a lease, by the terms of which it has the use of said suite for a period of two years, 'beginning July 16, 1937, at a monthly rental of $50 per month, payable on the calendar month basis, with the privilege to defendant of renewing such lease for an additional period of two years, at the same rental. That it is ready and willing to pay to plaintiff the sum of $50 per month and that it has tendered such rentals upon said basis to plaintiff.” The case was submitted to the court under an agreed statement of facts, which are substantially as follows: Appellee brings suit to recover possession of office room No. 1001, Medical Arts ¡Building, formerly known as National Standard Building, located in Little Rock. Appellant claims possession by reason of lease agreement with Walter Pope, Receiver. Appellee obtained title, and possession to said building as result of foreclosure proceedings under a mortgage duly recorded on February 11, 1936, and executed October 27, 1935, by National Standard Life Insurance Company to Joseph W. Bailey, Jr., Trustee, in trust for First National Bank in Dallas, covering this property. On June 3, 1936, Walter Pope was appointed receiver by the Pulaski circuit court to' take charge of assets of National Standard Life Insurance Company, one being the building containing the office room in question. The receiver leased suite No. 1001 in the building to appellant for a two-year period, beginning July 16, 1937, at $50 per month, with privilege of two-year renewal on the same basis. Appellant moved in prior to July 16, 1937, and the lease was confirmed by reciprocal letters of receiver and appellant on August 5,1937. The lease was not recorded nor was it approved by the circuit court, the only authority for the receiver entering this lease agreement being his general authority as receiver. The First National Bank of Dallas and Joseph W. Bailey, Jr., Trustee, were not made parties defendant in the case out of which the receiver was appointed. On August 4, 1937, the First .National 'Bank of Dallas and Joseph W. Bailey, Jr., Trustee, filed a petition in Cause No. 27902, pending in Pulaski circuit court, wherein state of Arkansas, ex rel Carl E. Bailey, Attorney G-eneral, was plaintiff and National Standard Life Insurance Company was defendant (case out of which Walter Pope was appointed receiver), stating that the First National Bank of Dallas held a mortgage for $40,000 against the properties of National Standard Life-Insurance Company in Arkansas, subject to a $200,000 mortgage due by that Insurance Company to Reconstruction Finance Corporation, and in that petition the petitioners asked permission to make the receiver a party defendant in a suit to be instituted in the Pulaski chancery court to foreclose the lien held by the said hank. Permission was granted by the court. On the same day, August 4, 1937, suit was brought in Pulaski chancery court by First National Bank of Dallas and Joseph W. Bailey, Jr., Trustee, against the National .Standard Life Insurance Company, Walter Pope, Receiver, et al., to foreclose the within described mortgage. In the complaint, plaintiffs prayed for appointment of a receiver to take charge of the properties covered by said mortgage. Simultaneously with the filing of this suit, the plaintiffs filed a petition to which was attached a certified copy of the order entered in cause No. 27902, ordering Walter Pope, receiver, to sequester the rents as collected from the properties covered by the mortgage to the First National Bank of Dallas, and in this same petition withdrew petition for appointment of a receiver in the Pulaski chancery court. On the same date an order was entered in Pulaski chancery court in the proceeding therein pending, taking cognizance of the order of the Pulaski circuit court as described and assuming jurisdiction to direct the disposition of funds by Walter Pope, receiver, to the same extent as if such funds had been sequestered on plaintiff’s application by a receiver appointed by the chancery court. Thereafter, on December 9, 1937, the chancery court entered a decree foreclosing the mortgage of the First National Bank in Dallas, and in the decree Walter Pope, receiver, was ordered to tarn over the funds in Ms hands for the payment of taxes against the properties covered by said mortgage, and to make full report of his receivership upon sale and confirmation thereof. Thereafter, on January 7,1938, the property was sold in accordance with the decree, and was purchased by ap-pellee,- Arkansas Properties Corporation, subject only to the mortgage to the Reconstruction Finance Corporation. The name of the building was changed to Medical Arts Building. On February 1, 1938, appellee gave appellant notice that commencing on the next rental period the rent for Suite 1001, occupied by the appellant, would be increased from $50 per month to $137.50 per month. Appellant has since that time tendered $50 per month rentals and has refused to pay more. Appellee has refused to accept said tenders. Thereupon both sides rested. The court on April 26, 1938, rendered judgment in favor of appellee for possession of the property in question ; for rent in the sum of $50 per month for March, 1938, and for rent at the rate of $137.50 per month from April 1, 1938, to date of judgment. From this judgment comes this appeal. The appellant contends that the trial court erred in holding that the receiver was without authority to make the lease in question and also that the court erroneously held that appellee had no notice of the appellant’s lease. Under the agreed facts, as reflected by this record, the receiver, without first procuring an order from the court, by which he was appointed and for which he was acting, entered into a lease contract with appellant for the office space in question for a term of two years at a rental of $50 per month and with the option to the lessee to renew the lease for an additional two years. It is our view, and we hold that the receiver was without authority to execute the lease in question beyond the life of his receivership without first having procured an order of the court. As receiver he was an officer, or an arm, of the court appointing him and subject to its orders, and when he entered into the lease contract with appellant he did so without approval of the court and his act was voidable. The general rule is stated in Thompson on Real Property, vol. 2, p. 166, § 1093, as follows: “A receiver has no authority to execute a lease of property placed in his hands by the court, unless authorized by the court to .do so, since a receiver is simply an officer of the court subject to the court’s orders.” And, also, in 53 Corpus Juris, p. 161, § 204, the rule is again stated: “In accordance with the general rules relating to other contracts, a receiver ordinarily has no power, without specific authorization by the court, to let any property which he holds as receiver, although it has been held that a receiver appointed to take possession of and collect the rents which might accrue from particular property, has the power and is under a duty to rent it; nor has he any power, in the absence of such authorization, to enter into a lease as lessee, especially for a term extending beyond the duration of the receivership, and if he takes such a lease, the court is not bound to recognize any equitable right of the lessor to be paid for the unexpired term after the ending of the receivership.” This court in Smith v. Murphy, 141 Ark. 410, 216 S. W. 719, said: “The general rule of law is that ‘all persons dealing with receivers . . . do so at their peril, and are bound to take notice of their incapacity to conclude a binding contract without the sanction of the court.’ High on Receivers (2 Ed.), § 186.” The record further discloses that the mortgage, which was the basis for the foreclosure suit filed in this case, was duly recorded with the proper officials of Pulaski county on the 11th day of February, 1936. The foreclosure suit was filed by the mortgagee, or holder of the mortgage, the First National Bank of Dallas and Joseph W. Bailey, Jr., as Trustee, on August 4, 1937, and the lease contract was entered into between the receiver and appellant on August 5, 1937. Appellant, therefore, had notice of the rights of the mortgagee herein and when the mortgagee, the First National Bank of Dallas, foreclosed its mortgage, making the receiver a party defendant in the foreclosure suit, and appellee became the purchaser at the foreclosure sale on January 7, 1938, the lease contract entered into between the receiver and ap pellant on August 5, 1937, could in no way impair the rights of the purchaser of the office building in question at the foreclosure sale, which sale foreclosed all the equity, rights, title and interest of the National Standard Life Insurance Company, a part of the assets of which was the office building in question in the hands of the receiver. In the case of Smith v. Murphy, supra, this court said: “It is a well recognized principle of law that: ‘The purchaser at a judicial sale has a clear right to the possession of the property sold as against all parties to the proceeding in which the sale is made, and this right the court will summarily enforce by writ of assistance, or in some appropriate manner.’ ” On the whole case we hold that no errors appear and that the judgment of the trial court should not be disturbed and that the case should be affirmed. It is so ordered.

Ernie E. Wright, Chief Judge. Vac-Pac, Inc., and its insurer bring this appeal from an order of the Workers’ Compensation Commission awarding appellee Vernon P. Simpson 30% permanent partial disability to the body as a whole and necessary and reasonable medical expenses. The award allocated responsibility for 20% of the permanent disability incident to claimant’s two back injuries occurring in 1975 and 1976, together with reasonable medical expenses, against Southern Farmer’s Association, and responsibility for 10% of the.permanent partial disability was awarded against the appellant Vac-Pac, claimant’s subsequent employer, along with reasonable and necessary medical expenses incurred as a result of what the Commission found was an aggravation of a prior injury suffered on June 20, 1977 in the course of claimant’s employment by Vac-Pac. The Administrative Law Judge found no additional permanent partial disability incident to the June 20, 1977 injury at Vac-Pac. The decision from which the appeal stems also remanded the case to the Administrative Law Judge for further determination of appellee’s claim filed in February 1979, in which he alleges that subsequent to the award, of the Administrative Law Judge on September 29, 1978, he became further unable to work, has incurred further medical expenses and claims the following additional benefits: Temporary total disability, permanent partial disability, medical expenses, replacement of back brace, and attorney fees. Southern Farmers Association, one of the appellees, announced at the hearing before the Administrative Law Judge it accepted liability for 20% permanent disability to the body as a whole and medical expenses incident to the 1975 and 1976 back injuries sustained by claimant in the course of employment by Southern Farmer’s and for which he had surgery, and was fitted with a back brace; Claimant testified at the hearing on June 2, 1978, that on June 20, 1977 while working for Vac-Pac he felt a sharp pain in his back when he “reached to move” a steel mold a quarter of an inch. At the time of the alleged third injury, he was still under the care of Dr. Adametz for his 1975 and 1976 injuries and was being seen by the doctor every four to six weeks. Claimant continued working after the June 20, 1977 incident. The doctor was unable to find any clinical evidence of injury resulting from the June 20, 1977 incident. He was laid off soon after the incident and next went to work for Freshour, a contractor. He further testified that around Labor Day 1977 he sat down in a recliner at home and when he got up he went down to the floor with pain in his back and legs. He was hospitalized in December 1977 and was placed in a body cast for a few days. He testified he had experienced pain in his lower back and legs continually since November, 1975 after his first injury and the pain was greater after the second injury. He has taken muscle relaxers ever since the second injury, and stated his condition was essentially the same at the time of the hearing as it was prior to the incident at Vac-Pac. Vac-Pac contends the incident on June 20, 1977, while claimant was in its employ, was a recurrence of the prior injuries claimant sustained and that there were other intervening causes associated with his present complaints. Claimant had been working fifty to seventy hours per week for Freshour some ten weeks at the time of the hearing before the Law Judge on June 2, 1978. Appellant Vac-Pac and its insurer assert the following points for reversal: I. The facts found by the Commission do not support the order or award. II. There is not sufficient, competent evidence in the record to warrant the making of the order or award. III. The Commission acted without or in excess of its powers. We find the following facts in the record require a reversal of the Commission’s decision and that these issues are adequately raised by the points asserted for reversal. There is no medical evidence in the record indicating claimant has more than 20% permanent partial disability to the body as a whole, the report by the clinical psychologist dated August 31, 1977 gives the history of claimant’s 1975 and 1976 injuries, but makes no mention of.any injury of claimant while in the employ of Vac-Pac, and the claimant admitted at the hearing his condition was essentially the same as it was prior to the incident he described as occurring at Vac-Pac on June 20, 1977. The appellee’s supplemental claim filed in February, 1979, after the decision of the Law Judge, alleges he became further unable to work and seeks an increased award. Without a further evidentiary hearing, the Commission on April 10, 1979, through its executive director, wrote respective counsel the “Commission preferred to consider the new petition before or simultaneous with its decision on appeal and the new petition would be treated as a petition to remand.” Thereafter on June 1,1979, the Commission issued its opinion making the award above indicated and also remanding the claim for a consideration of the merits of the new request for benefits. In view of the pendency of the supplemental claim seeking broad increased benefits and the decision of the Commission to remand the case for consideration of the supplemental claim on the merits, and the lack of objective medical findings of additional disability of claimant arising out of the June 20,1977.incident or injury sustained while claimant was in the employ of Vac-Pac, we hold it was error in the state of the record for the Commission to make a final determination and award of permanent partial disability to the body as a whole in excess of the 20% accepted by Southern Farmer’s and to award attorney fees on the additional award. In view of the remand for further hearing, which we think was proper, the determination of whether the incident resulted in additional disability of the claimant, and if so, the extent thereof, which medical expenses incurred on or after June 20, 1977 were treatment for his new injury and which were a result of his two prior injuries, and all other relevant factors should be determined after further evidence is taken on remand. We reverse the decision and award of the Commission with instructions the entire case be remanded to the Law Judge for a determination of all issues after the completion of further evidence. Penix, J., dissents.

Frank Holt, Justice. In accordance with a jury verdict, appellant was sentenced to life imprisonment for rape (see Ark. Stat. Ann. § 41-1803 [Repl. 1977]). 20 years for burglary (see Ark. Stat. Ann. § 41-2002 [Repl. 1977]), and 20 years for criminal attempt to commit first degree murder (see Ark. Stat. Ann. §§ 41-701, 41-703 and 41-1502 [Repl. 1977]). The sentences are to run consecutively. Appellant first contends, through present counsel, that there is no substantial evidence to support the conviction of attempt to commit murder in the first degree. On appellate review, we affirm if there is any substantial evidence, when viewed most favorably to the appellee, to support the jury’s findings. Pope v. State, 262 Ark. 476, 557 S.W. 2d 887 (1977); and Merritt v. State, 258 Ark. 558, 528 S.W. 2d 365 (1975). § 41-701 provides: A person attempts to commit an offense if he: (b) purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be. § 41-1502 provides: (1) A person commits murder in the first degree if: (a) acting alone or with one or more other persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or (b) with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. Appellant argues that his conviction cannot be sustained under either subsection of § 41-1502 (1) in that the state did not prove premeditated and deliberated conduct as required under subsection (b), and that there is no “attempted felony murder rule in Arkansas” as codified in subsection (a). Appellee responds that the two subsections, however, are set forth in the alternative. Therefore first degree murder may be proven under either, and appellant attempted to commit murder as defined in section (1). According to the Commentary, § 41-1502 (1) (a) “carries forward the felony murder doctrine. The Code provision differs from earlier law in that liability arises for a killing in the course of and in furtherance of any felony . . . . ” The intent to kill is immaterial. The scope of the statute has been limited only by a requirement that the death occur under “circumstances manifesting extreme indifference to the value of human life.” Appellant relies on pre-code cases in support of his assertion that the crime of attempted felony murder, as charged here, does not exist. However, in Stout v. State, 263 Ark. 355, 565 S.W. 2d 23 (1978), a case under the present code, there was, as here, no actual killing. We affirmed the life sentence of the accused for attempted capital murder of a police officer citing § 41-701 supra, combined with § 41-1501. It follows that sufficient proof of an attempt to kill a person as defined by §§ 41-701 and 41-1502 (1) (a) constitutes a criminal offense. In the case at bar the evidence is amply substantial to support the conviction of criminal attempt to commit murder. At approximately 3 a.m., appellant entered the Ballance home through a window. Mrs. Ballance and her children were asleep in the living room. During the 30 to 40 minutes appellant was inside the house, he continuously threatened to kill members of the Ballance family. He periodically aimed his gun at various members and fired two shots at Mr. Ballance, barely missing him on both occasions. Mr. Ballance testified that one bullet “was close, just above my head. . . ” “[Y]ou could feel it.” Appellant, identified by the Ballances, then raped Mrs. Ballance. Certainly the jury could find that the shots constituted a “substantial step in a course of conduct intended to culminate in the commission of [the] offense” of murder “in the course of and in the furtherance of the” commission of the felonies of burglary and rape “under circumstances manifesting extreme indifference to the value of human life”. See §§ 41-701 and 41-1502 (1) (a). Appellant also argues that the shots were fired merely as warnings and that there were numerous opportunities to kill Mr. Ballance had that been his intent. It was for the jury to resolve any discrepancies, conflicts and inconsistencies in the testimony of the witnesses. Scott v. State, 254 Ark. 271, 492 S.W. 2d 902 (1973); and Stout v. State, supra. Appellant also contends that there is no substantial evidence to support the conviction for burglary. He argues that the appellee failed to prove that he entered the house with the purpose of committing a felony. Ark. Stat. Ann. § 41-2002 (Repl. 1977) provides: (1) A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. The evidence previously recited is amply substantial to sustain the jury’s finding that appellant committed the offense of burglary. Appellant’s next contention for reversal relates to the sufficiency of an instruction. The court instructed the jury in the statutory language which defines criminal attempt. § 41-701. Appellant argues that the court erred in failing to instruct the jury on the underlying offense of murder in the first degree. Appellant made only a general objection to the instruction. He stated no specific matter to which he objected nor the grounds for the objection. Neither did appellant proffer an instruction to which he now asserts he was entitled. Having failed to make a specific objection to the instruction given or to request an additional instruction, the issue cannot be raised for the first time on appeal. Bousquet v. State, 261 Ark. 263, 548 S.W. 2d 125 (1977). Appellant next contends that he was denied the right of allocution which is accorded to him by Ark. Stat. Ann. § 43-2303 (Repl. 1977). It provides: When the defendant appears for judgment.... he must be asked if he has any legal cause to show why judgment should not be pronounced against him. In Rogers v. State, 265 Ark. 955, 582 S.W. 2d 7 (1979), we reiterated that the purpose of the statute was to give the accused, upon sentencing, an opportunity to show any cause why sentence should not be pronounced. Where a question is addressed to the defendant which affords him an opportunity to express why sentencing should not be pronounced, it is unnecessary that the precise language of the statute be used. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978). Here, following the jury verdict, the court asked appellant, “Have you anything to say?” Appellant responded, “No, sir.” On appeal the appellant urges that he would have requested that the sentence be postponed on the ground that he was insane, and stated that he had been under the influence of drugs on the night of the crime, had he “been allowed to speak.” However, appellant was allowed to speak. Also appellant was present with counsel and no objection was raised to the procedure followed by the court. We have held that even in capital cases it is necessary to make an objection in the trial court in order to raise the issue on appeal. Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977), cert. den. 439 U.S. 882, 99 S. Ct. 220, 58 L. Ed. 194 (1978). Here, appellant has not demonstrated he was denied his right of allocution. Affirmed. We agree: Harris, C.J., and Byrd and Purtle, JJ.

Conley Byrd, Justice. This action was commenced in the trial court by appellant Noel Cockrum to recover the balance due on a contract for the sale of used cars, furniture, fixtures, office equipment, parts, and signs, comprising Cockrum Motor Company, together with $235 rent per month accruing on a building. Appellee Charles Pattillo answered admitting the contract. He counterclaimed alleging that Cockrum fraudulently misrepresented the past income of the business and the value of the used cars, equipment, etc., resulting in overpay mont and losses for which Pattillo was entitled to recover from Cockrnm. The trial court found for Pattillo and awarded him judgment against Coekrum for $20,-603.24. Por reversal Coekrum relies upon the following four points: 1. The court erred in finding that the transaction was tainted with fraud and in failing to award the appellant a judgment on the contract. 2. The court erred in failing to hold that the appellee had waived the alleged fraud and ratified the contract. 3. The court erred in cancelling the rental portion of the contract between appellant and appellee by reason of fraud. 4. The court erred in awarding damages to the appellee upon the evidence introduced by the appellee. The facts shown in the record and the issues raised here are set forth in an opinion filed by the trial court. The trial court’s opinion is as follows: “The pleadings consist of a complaint by Noel Cock-nun, hereafter referred to as plaintiff, with an attached contract and supplemental sales contract signed by plaintiff and defendant, Charles Pattillo, hereafter referred to as defendant, an amendment to the contract signed by plaintiff and defendant, the date of which is not shown, a receipt dated May 6th for $2,661.50 paid by defendant to plaintiff and a receipt dated May 18, 1964 for $2,317.93 paid by defendant; and answer and cross-complaint was filed by defendant in due time. A motion to strike answer and cross-complaint was filed by the plaintiff to which defendant filed a response. Plaintiff filed his answer to cross-complaint in which plaintiff admitted he agreed to charge defendant one half of the cost of office fixtures and equipment, denied the other allegations, pleaded that there was an account stated between the parties and that the defendant was barred by laches from alleging fraud. The defendant filed an amendment to the answer and cross-complaint and likewise amendment was filed to the complaint reducing the amount due under the contract from $12,-713.64 to $10,000. That a motion to require production of records was necessary to be heard and plaintiff required to submit to the defendant the said record. A second amendment to answer and cross-complaint was filed by the defendant. Likewise amendment to the motion to require production of certain documents was filed by defendant. The plaintiff propounded 27 interrogatories to defendant which were duly answered. John Harris Jones, one of the attorneys for the defendant filed an affidavit for the production of certain records prior to trial which had been ordered by the court at a pretrial hearing. “The contract in question was drawn personally by the defendant. Exhibits upon which the contract was based, i.e., inventory of furniture and fixtures, shop equipment and automobiles were prepared by the plaintiff or at his direction. Contract as signed called for the payment of $30,000 at the time of the execution but was amended apparently on the same day by the parties and $20,000 was paid by defendant to plaintiff and an agreement to pay the balance as set forth in the amendment to the contract. Defendant was obligated to pay for second-hand cars and to rent from the plaintiff the building and grounds for the sum of $235 monthly for a period of five years with certain options in the contract. Defendant paid $2,661.50 on May 6, 1964 and May 18, 1964, $2,317.93. “PARTIES “The parties later agreed that the inventory of used cars supplied by the plaintiff to the defendant were overpriced and jointly agreed to a reduction of $4,928.78. The parties were negotiating for a settlement of other features of the contract which the defendant claimed was improper when negotiations were broken off and this action was filed. Plaintiff Noel Coekrum sued for the amount due under the contract as amended and for the rent on the building that had accrued. “Defendant in his answer and cross-complaint alleged fraud in the execution of the contract and concealment of the facts and prayed for a judgment in damages of $78,577.57, for the cancellation of the lease agreement. The claimed damages consisted of the following items, to-wit: 'The repayment of $8,877.57 alleged overpayment and for damages $39,800 actual loss and $30,000 loss of profits. “The proof was intricate and voluminous. By stipulation in open court at the conclusion of the testimony a transcript of the evidence was to be made by the court reporter and a copy furnished to each side and the expense thereof to be charged equally, provided in 1he event of an appeal by either side the amount so paid the reporter would be credited upon the appellant’s cost. “Excellent briefs have been filed by both sides. ‘ ‘ There is no dispute about the execution of the sale contract or the adjustment that was agreed upon by the parties and the amount due thereunder if there be no fraud. “Defendant claims that he was fraudulently induced to sign the contract through misrepresentation of some facts and concealment of other facts. “Plaintiff denies fraud. 342 pages were required to record the testimony taken at the trial. During the trial when it developed that the many secondhand cars which were sold, resold, repossessed, ‘traded down’ etc., produced a volume of detail that was more than should be heard by a court with a full docket without benefit of a master, the court offered, if agreeable to both counsel to appoint a master and let him pursue all of the involved and intricate matters and make a record of his investigations, submit the same to the court along with his recommendation. This offer was refused and the court did the best possible under the circumstances to get at the facts involved in this intricate transaction in the time available. “It appears that plaintiff was a second hand car dealer for a few years and then secured the franchise for the .sale of Ramblers and other cars made by the American Motor Company. The Rambler operation was not successful for the first couple of years. Then for two years the income returns of the corporation showed a substantial profit. “The plaintiff owns extensive farming interests from which at times he received excellent returns. The income tax records of the farm as well as the motor company are in this record. They show that the first years when the Cockrum Motor Company, hereafter referred to as the motor company, lost money, the farm income was quite substantial and in the two years that the motor company paid tax upon its profits the farm income was markedly reduced. The tax return for the final year of the motor company which was filed after the sale was consummated showed a loss of $26,519.50. The plaintiff’s counsel explained in the brief that this loss was a result of inflation of the value of the assets at the time the corporation was formed and could not be considered in determining whether or not the corporation was operating profitably. “The plaintiff decided to dispose of the motor business and negotiated with several people, one of whom testified — Mr. Ray Crosby of Stuttgart. “Defendant testified that the plaintiff told him the business was making from $10,000 to $15,000 per year. The plaintiff admitted on the stand that he had told de fendant that the business would make a thousand dollars per month. “The defendant testified that the plaintiff knew the defendant was ignorant of the automobile business and told the defendant that the plaintiff had a sufficiently well trained organization to permit the business to operate itself with but little supervision. Plaintiff testified that he never told anyone that an unsupervised business would run itself. “This and other testimony about negotiations and so forth prior to the signing of the contract by both imrti.es was admitted under the rule laid down in Arkansas Amusement Corporation v. Kempner, 182 Ark. 897, 88 S.W. 2d 42, (1930), where it was held, “ ‘It is the settled rule in this state that parol evidence of conversations and negotiations leading up to the execution of a contract, as well as the relation of the parties thereto and the attendant circumstances to explain and aid in the interpretation of uncertainties and ambiguities contained in writing, may be admitted.’ “This rule was discussed and approved in the recent case of Jefferson Square v. Hart Shoes, Inc., 239 Ark. 129, 388 S.W. 2d 902 (1965), where it was said, “ ‘ In reaching the result * * * that where there is any doubt or ambiguity about the meaning of a contract it ■will be resolved against the party who prepared it — and it is conceded that appellant prepared the lease contract here under consideration. However the rule just mentioned is not to be applied until and unless a “doubt” exists after the court has given consideration to the parol evidence referred to in the Kempner case, supra.’ “CAN DEFENDANT RECOVER DAMAGES? “Where fraud or deceit exists in a transaction the one who is deceived must act promptly to have the contract set aside or he will have waived his right. The defendant did not act promptly in this transaction after he discovered the fraud so the original contract cannot at this time be revoked. “Does that mean that the defendant is not entitled to damages suffered by the fraud? The answer is found in McCormick v. Daggett, 162 Ark. 16, 257 S.W. 358 (1924), quoting from headnote, “ ‘It does not follow that because purchaser of land looses his right of rescission for fraud by failure to diligently disaffirm, that he has no right or recoupment for damages for deceit.’ “The late case of Kotz v. Rush, 218 Ark. 692, 238 S.W. 2d 634 (1951), contains similar facts. “In that case the buyer bought a business on the White River in Carroll County located on IT. S. Highway 62 which had cabins and a store and various paraphernalia used in operating a fishing camp. The seller represented that the business was making $6500 per year. The plaintiff attempted to foreclose his mortgage and the buyer, defendant, cross-complainecl for damages for deceit and fraud. The defendant had not sought a rescission of the contract. “The Chancellor found for the defendant in the sum of $8,000 and directed it be credited on the mortgage. In affirming the trial court the opinion states: “ ‘The authorities generally seem to recognize the rule that false representations by the seller as to present or past income of the property sold or conveyed will, if relied upon by the purchaser, constitute actionable fraud. The following statement is found in 23 Am. Jur., Fraud and.Deceit, § 68: “A false representation by an owner of land, or bis ageixt, seeking to dispose of the property commercially, as to the present or past income, profits, or produce thereof or as to the amount of rent received therefor is regarded as a statement of fact upon which fraud may be predicated if it is false, since these are matters within the representor’s own knowledge. The same is true of an assertion that the profits of a business are or have been a certain sum annually, or a false statement as to what a business now earns.” See also, Williston on Contracts, § 1492; 55 Am. Jur., Vendor and Purchaser, § 84; Hecht v. Metzler, 14 Utah 408, 48 P. 37; Whitney v. Bissell, 75 Ark. 28, 146 P. 141, L.R.A. 1915D, 257; Cross v. Bouch, 175 Cal. 253, 165 P. 702; Hogan v. McCombs Bros., 190 Iowa 650, 180 N.W. 770; Vouros v. Pierce, 226 Mass. 175, 115 N.E. 297.’ “Thé opinion further states: “ ‘The remedies of a purchaser in cases of this kind are set forth in Danielson et al v. Skidmore, et al, 125 Ark. 572, 189 S.W. 57, 58 as follows: “He may rescind the contract, and by returning or offering to return the property purchased within a reasonable time entitle himself to recover whatever lie had paid upon the contract. Again, he may elect to retain the propert3r and sue for the damages he has sustained by reason of the false and fraudulent representations, and in this event the measure of his damages would be the difference between the real value of the property in its true condition and the price at which he purchased it. Lastly, to avoid circuity of action and a multiplicity of suits, he may plead such damages in an action for the purchase money, and is entitled to have the same recouped from the price he agree to pay. Matlock v. Reppy, 47 Ark. 148, 14 SS 546; Fort Smith Lumber Co. v. Baker, 123 Ark. 275, 185 S.W. 277.’ “ ‘Appellee chose the last remedy mentioned above and the only issue is whether the chancellor’s findings are against the preponderance of the evidence.” “DID PLAINTIFF COCKRUM FRAUDULENTLY INDUCE DEFENDANT PATTILLO TO SIGN THE CONTRACT? “Each of the parties were sui generis. Each of them is an intelligent and successful business man in his own field. The defendant operated two insurance agencies, one in DeWitt and one in Stuttgart successfully. The plaintiff was a second hand car dealer before he secured the automobile agency. And in addition he had a good sized farm. Neither had any legal assistance so far as the record shows. These parties had been friends for more than ten years prior to the execution of the contract sued upon. Defendant handled most of the insurance business of the plaintiff, lie claims 80% and plaintiff did not deny it. They drank coffee together often, went to football games together and visited in their respective homes at various times. DeWitt is a small city where most of the knowledgeable people know most of the details about the people with whom they associate. Plaintiff should have known that defendant was uninformed about the automobile business, that defendant was in the business of writing hazard insurance. After operating the used car business for several years plaintiff secured the Rambler franchise. He organized Cockrum Motors, Inc. with assets capitalized at $50,000. “The Rambler operation was not successful for its first two years. The explanation for this, offered by the plaintiff is that all automobile companies have good and bad years. Plis farming operation was profitable. The two years immediately before the sale of the busi ness to tlie defendant, Cockrum Motors Inc., hereafter referred to as the motor company, paid substantial income taxes. The returns showed it was making a substantial profit. “It is a coincidence that when the motor company made the profit, farm income fell off remarkably. The plaintiff was in an advantageous position of being able if he wished, to transfer funds from farm to company and back. He admitted he had followed this practice in his testimony. The results of this practice would be that if he chose to pay the income tax due, through the motor company it would mean but little change in his overall tax liability for the farm income would be reduced. “If a man wished to dispose of a business, it would be advisable for him to show that it was earning a profit. The most convincing way would be to pay income taxes to the government. “It is in the record that the plaintiff wished to sell the business; he approached several persons, one of whom, Mr. Ray Crosby of Stuttgart, testified that plaintiff tried to sell it to him. “The defendant testified that the plaintiff told him (hat the business was making from $10,000 to $15,000 per year; that the organization he had needed little supervision to run the business. Plaintiff admitted telling the defendant that the business would need but little supervision. If there was no other testimony on this point then the court must find for the plaintiff because fraud is never presumed and of course the one alleging it has the. burden of proving it to the court’s satisfaction. In the case of Rose v. Moore, 196 Ark. 527, 118 S.W. 2d 870 (1938), the court said, “Fraud is never presumed, and the burden is upon the party alleging fraud, to prove it by pre ponderance of evidence.’ See also, the following cases to the same effect, to-wit: Green v. Bush, 203 Ark. 883, 159 S.W. 2d 458; Biddle v. Biddle, 206 Ark. 623, 177 S.W. 2d 32; Ellis v. Ellis, 220 Ark. 639, 249 S.W. 2d 302, and many other cases. “To support Ms allegations the defendant called Mr. Pay Crosby of Stuttgart, a heavy machinery contractor, who testified that the plaintiff had tried to sell the business to him; that plaintiff had stated the business was making from $10,000 to $15,000 annually; that the manager or bookkeeper and crew that plaintiff had were capable of operating the business. Crosby was interested in acquiring a business because he had two boys for whom he wished to provide a business and he thought this would be ideal for that. Pie even discussed with plaintiff, the idea of fixing a place for him to rest because Crosby wanted him to look after the business if he bought it, while his boys would be learning how to operate it. “This to some degree substantiated the defendant’s testimony on this line. The strange see-saw effect between the farm income and the income of the motor company is another circumstance, when one was down the other was up and vice versa. Plaintiff was asked on cross-examination to explain this. He did not refer to poor crop years, to storm damage, to insect loss, to adverse weather condition, such as being too dry or too wet, or raining at the wrong time which ordinarily farmers use to explain their failure to make good crops. The only explanation that plaintiff gave was lack of management of the farm. ‘ ‘ That plaintiff knew something was wrong is shown by the fact that when challenged bjr defendant about the list of cars given to Mm as the basis of the contract price and that it vTas not the list of cars that plaintiff and his manager had used and priced out plaintiff agreed to a reduction of almost $5,000 and was very careful to include in the statement signed by both of them that this was to rectify ‘ail honest mistake made in computing the value of the used cars sold * * *’. It is most praiseworthy to correct mistakes, honest or otherwise, but it is evident that the plaintiff was anxious to have the record show that it was ‘an honest mistake.’ It is seldom necessary for an honest man to proclaim his honesty. “THE DEFENDANT “It was the plaintiff’s manager who had been retained by the defendant who called defendant’s attention to the fact that the list of cars had been overpriced and was not the list that manager and plaintiff had gotten up according to defendant’s testimony. There were other items which defendant claimed were overpriced according to the agreement that he had with plaintiff and about which the plaintiff had said that he would do ‘the right thing.’ One of these overpriced items was the following example. Proof showed that the building and equipment were acquired by plaintiff for $8,000. Two hydraulic hoists and a wheel aligning machine which were acquired by plaintiff with purchase of the building were attached to the building and were retained by plaintiff. Plaintiff set original cost of building in his depreciation schedule in the II. S. Income Tax Return at $6,359.46 with addition of $2,900.00 at total of $9,159.46. “The machine shop equipment original cost was shown as being $3,823.77. “On lists from which contract was drawn the cost of the equipment is shown so much higher that the agreed 50% was much greater than the original reported to the Internal Revenue Service. Negotiations for an adjustment of these items were carried on for some time but broken off before they were concluded. “It is probable that no one circumstance by itself would be sufficient to sustain the allegation of fraud. But all of these circumstances taken together with the admitted fact that plaintiff wanted to sell and was try ing to sell the business to others and to at least one other person had made some or similar allegation about the amount the business was earning and the operating crew’s ability to run the business without much supervision, coupled with the fact that the parties had been friends for more than ten years prior to the sale and the further fact that plaintiff knew that the defendant had no knowledge of the automobile business and the further fact that the plaintiff had lost money in the business for two consecutive years and only did show a profit in the business when his farm income went down materially leads the court to believe that plaintiff deliberately overreached in his dealing with his friend, the defendant. “ ‘While fraud need not be shown by direct or positive evidence but may be proven by circumstances, it must reasonably follow from the circumstances proved.’ Biddle v. Biddle, supra. “ ‘Fraud may be proved by circumstantial evidence, if it affords clear inference of fraud and more than a mere suspicion or conjecture.’ Renn v. Renn, 207 Ark. 347, 179 S.W. 2d 657. “The court finds that the contract and amendment attached to it are tainted with fraud. “The contract was executed in December of 1963 and two payments totaling the sum of $4,979.43 were made by defendant on or before May 18, 3964. If those payments were made by defendant after he knew or should have known that his contract was fraudulent his action in making the payment would have validated the contract. ‘ ‘ On the stand defendant said when asked about the fact that ho had signed a statement rectifying the ‘honest mistake’ about the valuation of cars and the payments of these two amounts, ‘I still thought that Cock-nun was honest and would do the right thing.’ It was the manager, defendant claimed who called his attention to the overpricing of the cars. It was not discovered by defendant. (It seems that the defendant was still ignorant about the automobile business.) No evidence was offered to contradict this by the plaintiff, that the defendant still considered plaintiff honest with him. The court finds that the payment by defendant of the two payments in May of ’64 and the signing of the writing reducing the amount due on the used cars did not waive or ratify the fraudulent character of the original contract. “The defendant in his cross complaint asked for $8,777.57 for alleged overpayment and $39,900 for actual damages or a total of $48,577.57. In addition the defendant asked for $30,000 for loss of profit. “The court disallows claim for any loss of profit and finds that the defendant has suffered damages in the sum of $25,000. Said sum shall bear interest at the rate of 6% per annum from this date until paid. “BENT “The contract provided the defendant should rent the building aud premises from the plaintiff for $235 per month for a minimum of five years with certain options of renewal and purchase granted to the defendant. There is no evidence that the defendant has surrendered the premises to the plaintiff. Defendant claims to have stopped paying rent in August of ’66 and plaintiff says defendant stopped paying rent in June of the same year. No evidence is offered that the rent is too high or out of line with rent being charged for like buildings and premises similarly located. The court finds the defendant to be liable for the monthly rental at said rate from July 3, 1966 until this date on a quantum meruit basis. That a judgment for said rent shall be offset against defendant’s judgment. “The contract being tainted with fraud the obligation for further rentals from the defendant to the plaintiff are hereby cancelled and set aside.” POINT 1. In arguing that tlie trial court erred in finding the transaction was tainted with fraud, Cock-rum says that Pattillo simply bought a business that he was indisposed to oversee, made very little attempt to manage and after losing money attempted three years later to charge Cockrum with the folly of his own mismanagement and then only after Cockrum had sued for the balance due on the contract. We find appellant's assertion to be without merit. In addition to the testimony recited in the trial court’s opinion there are many instances in which Cock-rum’s testimony, in itself, supports the trial court’s finding of fraud. For instance, it was shown that on Oct. 6, 1961, he made a $4,000 deposit from himself to the Motor Company. His explanation was that the $4,000 was for a combine traded for a car valued at $1500, an International truck valued at $1000, a Chevrolet truck valued at $850 and one International truck valued at $650, all of which equipment went to the farm. However, notwithstanding Cockrum’s assertion that the equipment went to the farm, he was unable to explain why no depreciation for the equipment was shown on his income tax returns. At the trial, Cockrum testified that the May adjustment, resulting in the $5,000 deduction from the original contract price, occurred when he and Wayne Fisher adjusted the inventory of used automobiles down to the black book average wholesale price. According to Cock-rum the valuation after this adjustment would have been $20,<885. However Felix Stephenson, a Ford dealer, applying black book values to the same inventory, arrived at a value of $10,465, less the cost of repairs to the vehicles involved. Thus in addition to the facts related in the trial court’s opinion, there is much in the record which adversely reflects on the credibility of Cockrum’s testimony. Without elaborating further, we are convinced that the trial court correctly found that Cockrum induced Pattillo to enter into the contract by falsely rep resenting tliat the motor company had been mailing a profit of $10,000 to $15,000 per year. • POINT 2. It is true that on May 3, 1964, and again on May 18, 1964, Pattillo made two installment payments totalling about $5,000, and at the same time an adjustment of approximately $5,000 was made in the total contract price by Cockrum with Pattillo’s consent. It is also true that Pattillo for a number of months made the $235 monthly rental payments due under the contract! Based upon these payments Cockrum argued that Pattillo lias waived the fraud. We cannot agree with Cockrum’s contention. The authorities make clear that before such payments will constitute a waiver it is essential that the victim have full knowledge of the fraud practiced upon him, that he intend to affirm the contract, and abandon his right to recover damages for the loss resulting from the fraud, Southark v. Passes, 221 Ark. 612, 254 S.W. 2d 954 (1953). Pattillo's testimony was that he knew nothing about Cockrum’s fraud when he made the May 3rd and May 18th, 1964, payments. In fact he said he did not know what was really happening until two years later. Further, Mrs. Wilson testified that she worked for Pattillo Motor Co. from Sept. 1964 through Feb. 1967 and was present during the discussions between Mr. Pattillo and Mr. Cockrum about adjustments. Therefore under the circumstances the record does not support Cockrum’s contention that Pattillo made the payments with full knowledge of the misrepresentations. See Parker v. Johnston, 244 Ark. 355, 426 S.W. 2d 155 (1968). POINTS 3 & 4. On the damage issues, Cockrum alleges that Arkansas is committed to the so-called “out of pocket” measure of damages in fraud cases, that there is no testimony as to the true value of the properties Pattillo acquired from Cockrum, and that the trial court erred in cancelling the balance of the rental contract. We do not agree with Cockrum that this court is committed to the “out of pocket” measure of damages in fraud cases. In Union Motors Inc. v. Phillips, 241 Ark. 857, 410 S.W. 2d 747 (1967), and in Greiner Motor Co. v. Sumpter, 244 Ark. 736, 427 S.W. 2d 8 (1968), we recognize the so-called “benefit of the bargain” rule of damages in fraud cases. In the early case of Morton v. Scull, 23 Ark. 289 (1861), we specifically held that one damaged because of fraudulent representations about the qualities of a slave was entitled to recover not only the difference between the value of the slave as he was. addicted to running away, and as he would have been, free from that vice, at the time and place where he was bought, but also to the damages caused by the Negro’s habit of running away, such as expenses incurred by his capture. Thudium v. Dickson, 218 Ark. 1, 235 S.W. 2d 53 (1950), involved a fraudulent misrepresentation relative to the water supply to irrigate a rice crop. We there permitted the tenant to recover the difference between what the land produced and what the land would have produced if -water had been available, less the cost of production and marketing, — i.e. the same damages that would have been recovered upon a breach of contract, citing and relying upon Gibson v. Lee Wilson & Co., 211 Ark. 300, 200 S.W. 2d 497 (1947). In Miles v. American Railway Express Co., 150 Ark. 114, 233 S.W. 930 (1921), Miles shipped a dog’s head packed in ice from Bald Knob to Little Rock for examr ination to determine whether the dog had rabies. Miles alleged that he told the railroad agent the dog had bitten his daughter and the specific purpose for which the head was being shipped to Little Rock. We held the Express Company was liable for the expenses incurred in giving Miles’ daughter the Pasteur treatment for rabies because the company might have reasonably anticipated that Miles would be put to that expense if the package containing the dog’s head should not be promptly delivered to its destination. In 37 Am. Jur. 2d, Fraud and Deceit § 362, p. 490, it is pointed out that in fraud cases, in addition to general damages, a purchaser may be entitled to recover special or consequential damages which are the natural or proximate result of the seller’s fraud. We believe that this rule is supported by our cases cited above. The purchaser in the Morton case (above, certainly would not have been made whole by recovering the difference in the value between the slave as he was and as he would have been made whole by recovering the difference in i.e., the expense incurred in the capture of the runaway slave may have exceeded his value as was. For cases from other jurisdictions applying the same rules see McInnis & Co. v. Western Tractor & Equipment Co., 67 Wash. 2d 965, 410 P. 2d 908 (1966). When we apply this rule to the facts here under consideration we find that there is ample evidence to sustain the damage award and the cancellation of the lease contract for the balance of the term. From the testimony of Noel Bates and Felix Stephenson, together with the exibited “black book”, it is obvious that the wholesale value of the used cars was not correctly represented to Mr. Pattillo at the time of their transaction or at the time of the adjustment some six months later. Furthermore, from Mr. Coekrum’s own records and admissions in his pleadings about the method of fixing the purchase price of shop equipment and office equipment, it is obvious that the price with which Mr. Pattillo was originally charged is not based on the cost price to Mr. Coekrum. When all of these adjustments are taken into consideration a preponderance of the evidence shows that the total value of the items purchased by Mr. Pattillo could not have exceeded $16,-222.43. Since Mr. Pattillo had already paid Mr. Cock-rum $25,000 it follows that he had overpaid, because of the false representations, the sum of $8,777.57, Since the contract between Mr. Pattillo and Mr. Cockrum obviously contemplated that Mr. Pattillo would operate the automobile business in Mr. Cockrum’s building for which Cockrum would collect a monthly rental, it obviously follows that Mr. Pattillo would have to supply working capital for day to day operation, including payroll. In this connection, Mr. Pattillo, his accountant and secretary testified that he had plowed in excess of $30,000 into the business for operating capital which he had lost at the time of trial. The only criterion for allowance of such damages is that they not be speculative. Here again we find that Cockrum’s own records remove the speculative nature of the losses sustained by Pattillo, particularly within the limits found by the Chancellor. Cockrum’s records show that before he began pumping farm income into the motor company, the motor company was losing about $7,500 each year. When we take from the $25,000 damages allowed by the Chancellor the $8,777.57 overpayment, we find that the difference does not exceed the $7500 annual loss sustained by Cockrum when multiplied by the two and half years Patillo was in business. On this basis we find that the damage allowance was proper, as the natural and proximate result of Mr. Cockrum’s fraud. "Wlmt we have heretofore said about operating losses holds true with respect to the balance of the rental contract. The rental contract was tied to the purchase and operation of the automobile business. Since any liability of Pattillo for subsequent rental under the rent contract would be consequential damage proximately resulting from Cockrum’s fraud, it follows that the two items offset each other and that trial court was right in cancelling the balance of the rent contract. Affirmed. Brown and Fogleman, JJ., dissent.

Baker, J. The appellants in this case may be referred to as such, -or, for brevity, the Perkins Oil Company of Delaware may be called merely the oil company, and C.-H. Caldwell may be designated merely as Caldwell, while the appellee may be referred to as .such, or as the plaintiff, or by name, as the occasion may suggest." The oil company owns and operates a "large cotton seed oil mill at West Memphis; in Crittenden county, Arkansas. C. H. Caldwell was an employee of that company and is referred to in most instances as -the superintendent in the operation of the plant. Fitzgerald was a young man between -twenty-one and twenty-two years of age, employed at that-plant as a helper in the installation of some of the machinery; including the particular machine upon which he was hurt, which is called in the complaint and evidence a “cotton seed cleaner.” He had worked for several weeks during which the plant was not in operation, and, at the time the season opened and the plant began operations, he was employed as an oiier. Many electric motors were employed in the plant and these produced the energy to drive the different units of machinery in the manufacture of cotton seed oil and by-products from the cotton seed. In fact, because so many of these different units were located in different parts of the plant it was deemed necessary to have a separate employee responsible for the proper lubrication of all these different or separate units, and it was primarily, at least, the job for which Fitzgerald was employed; that is to say, he was the oiler. According to the record this was not the only duty he owed to his employer, but it was the principal one. Since the appellee is entitled to have the facts, as established by the proof and reasonable inferences therefrom, construed in a light most favorable to him to sustain the verdict and consequent judgment rendered in this case, an effort will be made so to state the facts, omitting, however, as nearly as possible whatever is not deemed absolutely essential to a full discussion and determination of the issues involved. It is the purpose of' this form of presentation to avoid as nearly as possible elaborate quotations from evidence as ho good purpose may be served by an argument of disputed facts. Such a discussion would tend to .prolong the opinion. Perhaps, it may be suggested that the verdict of the jury has settled all these disputed matters and the plaintiff is thereby entitled, in every instance,'where there is substantial evidence, to the most favorable conclusions and inferences possible, though we will not attempt to go to that extent in this presentation. The plaintiff has alleged in his complaint, and established by his proof, that Caldwell'was his superior, the superintendent in charge from whom he received such instructions as were given him. He was put to work and instructed to fix any machinery he saw broken down or clogged up. This direction or order was given about ten days before the accident, at a time when they were starting* the motors, or running them, to test them to see if they were in good condition. To use the language as abstracted, the appellee says that “he told me in the lint room that my duties of oiling the motors would carry me all around the mill, and that in the course of my duties I would have to pass all or practically all of the machinery there, and if I saw anything wrong with the machinery, anything broken down or clogged up, to fix it if I could, and if I didn’t think that I could fix it to call the machinist or millwright.” The foregoing statement is quoted for the reason that the appellee says that this is all the instructions or directions given him in the performance of his duties. The appellee had grown up as the stepson of an employee of an oil mill, had been about oil mill plants a great deal. He had worked perhaps some in the yard of a mill at Dallas, Texas, before the family moved to West Memphis, where the stepfather of the appellee was employed as a night superintendent. He had worked as a helper in the installation of machinery for several weeks prior to the time of his injury, but had been working as an oiler only a day and a half when he was hurt. The injury complained of grew out of the attempted performance of that part of the instructions to the effect that if he saw anything broken down or clogging up to fix it if he could. At the time of the accident, Fitzgerald testified in passing the said cleaner he saw that it was choking up with seed as the seed passed through the conveyor; that he looked for the attendant who served the particular machine and did not see him and.then attempted himself to restore the normal operation of the machine and inserted his hand in the slot or opening where it was choked. This place, according to the description he gave of it, was perhaps ten to eighteen inches below a revolving cylinder on which there were blades or ribs, and by which his hand was caught as he was attempting to clear the machine of the congested or choked condition. He says no instructions had been given to him as to the manner of unchoking or clearing the machine, and that he had seen nobody else perform that service. Employees who usually performed that service,' it was testified by others, used a stick or shovel, but may safely use the hand if the hand is kept in the conveyor part of the ma chine'and not.inserted in the upper part containing'the revolving cylinder,- which was covered or bidden; by the Outer:.casing'and’"front part of the machine.' That outer casing, or--front part' of the machine, may serve as a guard to prevent one from sticking his-hand- directly in a pláce where it will- be caught by the cylinder, but it also serves to conceal the cylinder which the evidence shows turns sufficiently fast that twenty of these blades or ribs would strike- á- given point per second.'.-' Though it seems unreasonable,'• yet plaintiff testifies that he did- not know of the revolving cylinder prior to-the'time -of'his injury; that no one had told him of it'. The evidence is not exactly-clear as to why-'or how the plaintiff came to reach one' of his hands above the place in the conveyor where the machine was 'chokiiig and insert it into the machine at the point where-'the ré- • v'olving cylinder caught it. It may be that the excruciatingly torturing pain, the anguish occasioned by the accident were such that plaintiff never clearly remembered the exact process used and movements of his hand in.úñ-ehoking this machine that caused him to come into contact with the dangerous part of it. No logic or analysis can supply any missing fact in that respect, but we are bound by the statements that the plaintiff had no instruction in regard to the proper manner to perform this service required of him and bound also to accept his statement that he was acting in response to a direct command given him by one in authority, and that while performing this service in close proximity to dangers he did not know, had not observed and, therefore, did not anticipate the accident happening in which one of his hands was caught, and drawn into the flailing machinery. In -attempting to extricate himself from themachine by holding himself back, his other hand slipped and was in like manner caught so that both hands and arms were drawn into the machinery, and both so badly mangled that one was amputated above the elbow and the other just below. This accident'occurred on the 23rd day of August, 1934. Thereafter, on the 15th day of January, 1935, the plaintiff signed-a release in consideration of the sum;; of $5,000 paid Mm at that time.- The particular details in regard to this release will be set forth in a discussion of the error assigned in regard'to that matter. The voluminous pleadings may he ' narrowed' or shortened by merely stating that the only negligence established and finally relied upon' arises out of the failure of the. superintendent, Caldwell, to give proper instructions for the performance of the duties required of Fitzgerald, or a. failure to warn him of. the concealed or hidden dangers in the machine, which he was required to service and which injured him while attempting to perform and discharge a duty required of him by the superintendent having control over him; There was'-no- defect in the machine alleged or proven. - It is argued, and we think correctly, according to the undisputed "proof in this' record, that in the conveyor ‘ of the seed cleaning machine, where it- is said to have' choked, there was no hidden or concealed danger, if there was any at all, and it was also urged that Fitzgerald was more than'twenty-one years if age, a graduate of the Dallas High School, more than ordinarily apt, and above the average in point of. intelligence, and that’ he -must be presumed, as a matter of law, to have assumed the risk of the. employment, and in the discharge of the duties which he was attempting to perform. In response to this argument it is also shown and, we think beyond question, that one standing in front of the machine at the place where he could insert his hand into the conveyor to unchoke- or relieve the' congested condition of the seed, as the plaintiff was doing, could not see or observe the cylinder and it is not unbelieveable that, although he helped install this machinery, he had not observed this cylinder, or if he had he may not have known its particular •’function and . may not have understood that there was the probability..or even a possibility of inserting his hand into a place so destructively .dangerous. as were the ribs upon this cylinder. Pictures- of this machine -• appear in the record. It is described by several witnesses as well as by the plaim tiff himself..who seems able to give a. most minute, .as well as accurate description of it.. But we cannot say, as a matter of law, that because plaintiff, at the time of the trial, was able to give this minute description of the machine and its functions he could have done so prior to the time of the accident. Doubtless he learned many facts from the horrible in-drawing’ and flailing of this cylinder as it destroyed both his hands and arms, but he may have learned others since that accident- which enabled him to become a witness apparently more observant than laborers ordinarily might be presumed to be who perform such services as he was at that time. It may also be argued that since he had worked at this mill after it had begun operations only a day and a half prior to the injury, had he been apprised or warned of the hidden or concealed danger in this revolving cylinder, he would not have believed that he could have relieved the abnormal condition, but would have waited and called for the usual attendant to perform such service. So it must appear, we think, that it was the duty of the appellant company, and the superintendent having charge of this servant, and who knew according to his own testimony that he was inexperienced in the performance of such a duty, to give proper directions or instructions as to the best or approved method of. servicing the machine as it was done by other employees who had ex-. perience and training; that if required to perform the service there followed the legal duty not only to instruct as to the proper method of performing it, but also to warn of the hidden or concealed danger. This is more apparent when it is considered that this revolving cylinder was above the slot or opening in the front of the machine into which the appellee inserted his hand, and that this slot or opening is perhaps a foot or eighteen inches below eye level, and where it may not be observed except by one attempting to make a minute or careful inspection. We think it may well be conceded that it is the duty of the master to give proper instructions and warning to young and inexperienced servants regarding duties required of them and to explain dangers necessarily incident to such performance of duties,.and we do not under stand in this case tliat appellants insist that merely because the appellee was more than twenty-one years of age the master did not owe this duty on that account. While it may be true that in most instances wherein an adult applies for and obtains a position he may be presumed to understand the conditions that prevail and will be deemed to have assumed the ordinary risks of his employment, this is not a hard , and fast rule that frees a master from the duty to instruct and warn one whom he orders to perform and repder services, the master knowing at the time that he gave such orders and instructions that the employee is inexperienced and does not appreciate the attendant dangers. In such a case, there can be no presumption that supplies experience or furnishes a warning of danger. This statement is made, having in mind the testimony of Mr. Caldwell who was one of the defendants, and who staled unequivocally that Fitzgerald was too inexperienced to have attempted to perform such duties without' proper instructions, experience, or warning. We are not saying that, because of the youth or the inexperience of the servant, he must in every instance be warned, but in this case there were all the elements of youth and inexperience, as the young-man had barely reached his majority, and there was the admitted fact of inexperience, and the two combined cer-. tainly enjoined upon the master the duty and obligation to instruct and give warning. It was so held in Southern Lumber Co. v. Green, 186 Ark. 209, 53 S. W. 2d 229, and, also, in the cases of Ward Furniture M’f’g Co. v. Mounce, 182 Ark. 380, 31 S. W. 2d 531; St. Louis, Iron Mountain & Southern Ry. Co. v. Inman, 81 Ark. 591, 91 S. W. 832; Des Arc Oil Mill, Inc., v. McLeod, 137 Ark. 615, 206 S. W. 655. Perhaps a dozen other cases might be cited, but we have selected these especially .because relied upon by the appellants, and the doctrines announced therein are not inconsistent with, nor impaired in the least by such a decision or opinion as that announced in Williams Cooperage Co. v. Kittrell, 107 Ark. 341, 155 S. W. 119, for the rule there announced is that as a matter of law one who’ shall have arrived at Ms majority should be deemed as mature and be treated' as the ordinary*'or average intelligent servant rather' 'than the young* and inexperienced servant. But we think it must be appreciated and fully understood that there is quite a difference in .that class of cases-where the master knows both ob the youth and inexperience and'consequent unfitness of the servant to perform the duties required of him, and not one in which by. reason of the maturity of age, and by reason of. intelligence, he -may be presumed to have assumed the' ordinary risks of employment - sought by him. Where the master has actual-knowledge, no presumption may obtain; Where it is known'that both youth and Inexperience make the servant unfit to perform a particular duty, no presumption can arise by reason of maturity or by reason of average intelligence. We' are impairing in no sense doctrines announced in such cases as Railway Co. v. Torry, 58 Ark. 217, 24 S. W. 244, wherein it is an nounced that the master ordinarily owes to a servant off mature years and average intelligence no duty to. warn and instruct. The very distinction we are attempting--to make was made by this court in the case of Louisiana & Arkansas Railway Co. v. Miles, 82 Ark. 534, 103 S. W. 158, 11 L. R. A., N. S. 720. Without quoting from that opinion, but deducing therefrom the reason for the rule, announced, its application may well apply to the instant case. In part it states that in case of the immature age and inexperience, it is the duty of the master to instruct as to patent, as well as to latent, defects, if,, by reason of youth and inexperience, the servant does not know or appreciate the danger incident to his employment,, .and if the master knows or ought to know or take notice of his youth and inexperience. . < We have attempted to make clear, and we think we have presented in a way. that it may not be mistaken, that, in this case the master;¿did know of; the immature years, of-.the inéxperience of the iplaintiff, such ■ inexperience being the result of his youthful-ness. though he had attained his majority. We-can see no difference, and we do no.t.think the law makes -any distinction, in a case wheret in the master must take notice on account of youth and inexperience, and in a case where there is actual dmowl-edge of such conditions. The law may not.he deemed so unreasonable, so unnecessarily contradictory of ordinary humanitarian requirements;. - Appellants rely upon another case, tké. opinion in which was prepared by the writer. Ward Ice Co. v. Bowers, 190 Ark. 587, 80 S. W. 2d 641. . There is-quite a distinction in the principle involved in the Bowers case and in the instant casé; It is a distinction conditions make, one that we are insisting upon here, that is, lhat mere youth in itself would furnish.no right of recovery where every danger was patent, was known and' observed by the servant. In the scoring machine, described in that case, Bowers could see the saws into which he stuck his foot, testified he knew it would injure him if. he touched it. Yet, notwithstanding that fact and condition, he carelessly kicked his foot into it and was Injured.’'■'Quite a different condition would have been present had the saws been hidden or concealed, or if he had..not known the location.of saws .concealed in the frame. So, in this case, the cited, authority appears neither applicable nor controlling, because the dangerous- cylinder with the blades or ribs which did the injury were hidden. In addition, the appellee testified that at the time of the injury he did not know of its location or its danger. Numerous other authorities are cited and relied upon by the appellants, but we think it unnecessary to take these-up separately for any kind of analysis as our foregoing statements and conclusions must necessarily be supported' by the weight of authority invoked to determine the controversy presented on this question of liability, which is settled by the great weight of authority against the contention of the appellants. The next question seriously argued arises out of the release executed by the appellee on January .15, 1935. It is most seriously presented and contended that although he was hurt on August 23rd, he was not rushed into any kind of settlement, but that he received and accepted thq $5,000 paid to him after full and free deliberation and should be held to be bound thereby. The appellee, however, contends that this settlement was not'entered into freely and voluntarily, but that it was made under 'á'"form of compulsion, so great that he found it to be irresistible under the circumstances that prevailed at the time. It is contended by him that shortly after his injury he was advised by both Mr. Jasspon and by Mr. Caldwell that he would be helped or aided by the employees of the company to recover a sum commensurate with the disabilities he had suffered, it being suggested by one of them, it is immaterial which, that he should have $100,000, and by the other that he should have a sum sufficient to enable him to live throughout the remainder of his life without having to work at anything. He had consulted, after the injuries received, and prior to the date of settlement, lawyers eminent in the profession, of admittedly great ability; and, only a day or two before the release was executed, he had received a letter from one firm, with whom he had conferred, asking him to return for another consultation. He gave us his reason for not going back, which he says was also the reason for the execution by him of the release, threats which he alleged were made by Mr. Jasspon, who was one of the owners of the cotton seed oil mill properties, and who was in the active charge thereof, to the effect that if he did not accept the $5,000, which was the extent of the contractual liability of the insurance company carrying the risk for the appellant, immediately upon the filing of the suit or employment of attorneys, the stepfather of the appellee would be discharged, and that every influence possessed by Mr. Jasspon would be exerted to prevent his re-employment by any other corporation in a like business: He says that Mr. Jasspon told him he knew the condition of the family; that his stepfather and his mother and his brother, who had an invalid wife, as well as himself, were all wholly dependent upon the labor and earning of his stepfather; that Mr. Jasspon also advised him that his company had employed eminent counsel'and that they would be able to defeat a recovery, or, if not, to delay it for a period of perhaps ten years. He says these threats, or similar ones were made on two or three different occasions, at one time when he was- alone with Mr. Jasspon,'or perhaps accompanied by his mother, and at another time when he had returned to the office with a young lady friend, who had insisted, after he had told her of these threats, that she be permitted to go with.him for another interview with Mr. Jasspon. His statements were corroborated in part, at least, by the young lady mentioned by him, and, also, by some other facts tending-to show that at about that time Mr. Jasspon and other officers, or agents of the appellant company discovered that the liability of the insurance company was limited to $5,000. This evidence in regard to this settlement and release was disputed by Mr. Jasspon, and, of course, the facts became an issue to be determined by the jury, if the contentions stated by the appellee were in law sufficient to vitiate or avoid the settlement and release. We cannot think there is any necessity for arguing the foregoing proposition. However forceful Mr. Jasspon may have been in' the denial of the charge made by- young Fitzgerald, the question of whether he made the statements, or threats was still a proposition properly to be submitted to the jury and to. be determined by them, if Fitzgerald’s contentions were worthy of considération. Since, the jury has settled this matter adversely to the contention of the appellants, we must, determine now, as a matter of law, if these statements so proven and established were in law sufficient to vitiate or void the release. We think it unnecessary to copy or set forth the release executed by James Fitzgerald, but deem it sufficient to say that it was executed by him, and that it is sufficient in form to operate as a complete release and discharge of the defendants unless it was entered into under some form of compulsion or duress sufficient in law to destroy its effect. We think it may not be of any benefit-to set forth and discuss matters so forcefully argued by the appellant company to the effect that young..Fitzgerald had prior to the date of this settlement made a complete and de tailed statement of the facts in regard to liis injury,- that he had conferred with' several attorneys, and that at least some of them had advised him that it would he. tohis-best interest to -make or accept the settlement offered. He agrees.that, at least, one attorney did so advise him, but says this was after he had actually made the settlement.! But-all this, however forceful? it may seem as a matter .of- .argument, was properly submitted and determined as,a-jury question. It is ndw argfired that there are three causes or reasons whereby the release or contract may be set aside (a) those that’were induced by fraud" or misrepresentation on the part of the released, (b) where there is’a mu-’ tual mistake of fact, and (c) where the act of plaintiff in signing the release was induced or resulted from duress or’ coercion practiced on the plaintiff by the defendant.-” There can be no insistence in this case that there was fraud or misrepresentation nor was there any mutual mistake. The remaining question to be determined is whether the facts stated show that the release was the’ result of duress or coercion practiced by the appellant company. We are cited to the case of Burr v. Burton, 18 Ark. 214 In thát case’the , court said that duress by threat, such as to render the contract void, must be sufficient to excite a fear of’ some grievous wrong as of death or great bodily harm or unlawful imprisonment. Without attempting to distinguish this case from others of like" character, but without neglecting the effect of Ms case, we next examine Bosley v. Shanner, 26 Ark. 280. It was there held that in order to render a contract void, because- of threats or menaces,- it was necessary that the threats’ and circumstances be of a character to excite the reasonable apprehension of a person of ordinary' courage, and the promise, contract or statement should be made under the influence of such threats or menace. Also that doing a thing one had a legal right to do would not be such" cause; We think it apparent from this announcement, made-only a short time after the declaration of law-, in the'.’"case of Burr v. Burton, supra, shows a progressive, tendency toward a more lib eral consideration of causes that would tend to avoid.a contractu . • ■ We are, also, cited to the case of Ellis v. First National Bank of Fordyce, 163 Ark. 471, 260 S. W. 714. In that case the defendants set up in .their answer that they were forced and-coerced by the- plaintiff to sell certain-lumber at a price less .than the actual value and that the draft: was the result of such coercion. The demurrer, to the answer .was sustained. On appeal this court said: “It is not duress to threaten that which, a party has a legal right to do., and-, the. fact that a party threatens to bring suit to collect a claim constitutes neither duress nor fraud and[.a compromise of such-a claim is binding in law. ” The-case of Gus Blass Co. v. Tharp, 194 Ark. 255, 106 S. W. 2d 608, is cited as controlling in this case.- This was a release' which was sought to be. set aside on the ground of fraud and mistake.: The facts in the case were that a short time after the accident the injured party-was' paid .$40 to•• sign full release. About*four months later ■he-claimed that the release was void because it was signed before he had an opportunity to discover the extent of his injury. He was then paid an additional.-compensation of $90 and executed a second release. He sought to set .that aside because he said at the time it was signed,he was in ignorance of the extent of- his'injuries. The defendant, however, made no misrepresentation of any kind. It -was - held that the release was :a complete defense. •• We’ think it unnecessary to- set forth the language of this court in reaching-the conclusion set out linder the foregoing stated facts. The discussion, -howevely is interesting and the authorities cited are numerous, as is also in the case of Kansas City Southern Ry. Co. v. Armstrong, 115 Ark. 123, 171 S. W. 123.; In no-one of these last-cited cases does there appear to be any mistake or any fraud or duress practiced to secure the execution of the release. As set forth in one of the discussions, it is stated: “Nor is it a case where there was fraudulent representations as to the contents of the written instrument, or any trick or subterfuge whereby the papers were substituted so as to induce the contracting party to execute it, as in Hot Springs Railroad Co. v. McMillan, 76 Ark. 88, 88 S. W. 846.” Otherwise- stated the defendant company did not in any manner by fraud or by over-reaching, or by duress, in any form, induce the execution of the contract or release relied upon. Although the contract was held to be an improvident one the court was impelled to support it. To the same effect were numerous cases cited and discussed, all of which we have examined and determined that they arrive at, or reach the same uniform conclusions as those wherein such contracts were fairly and openly entered into without fraud, mistake, deception or any form of duress. They were ordinarily held to be good. But in those cases in which these contracts were induced by some form of fraud, by over-reaching, by deceptive promises, relied upon, or by some form of duress, sufficient under all the prevailing* facts and circumstances to impair the deliberate judgment to the extent that it might be determined that although the contract had been signed, it had not been agreed to, such contracts have uniformly been held voidable at the instance of the injured party. One of the most recent of the cases of the type mentioned is Harper v. Bankers Reserve Life Company, 185 Ark. 1082, 51 S. W. 2d 526, and a still more recent one is The National Life & Accident Ins. Co. v. Blanton, 192 Ark. 1165, 97 S. W. 2d 77. In the Harper Case, first above mentioned, we find the court’s statement of facts to be as follows :■ “On that date, accompanied by a notary public of Corning, Arkansas, said agent called upon appellant, told her the policy was void because her husband had misrepresented his physical condition in the application, that his statements in this regard were warranties, were false, and that, because of such false warranties, the policy was void. He offered to return the premium paid, about $29, which she refused, and he finally offered her $100, stating that if she refused she would get nothing. ’ ’ This court in regard thereto said: “In determining the question here, we view the evidence in the light most favorable to the complaining party. . . . Appellant is a woman of moderate education, - not unlettered or ignorant-, but inexperienced in business matters, . . '. She was not well at the time. Dow told her the company didn’t intend to pay the policy, and that he had brought the premiums, about $29, and would pay that back, and wanted to take up the policy. . . . He told her Mr. Harper ‘lied’ in his application, and that he had cancer of the rectum at that time, and the policy was null and void. She told him if she couldn’t collect the policy she would lose her home, and that he talked to'her so she broke down and cried; told her again the return of the premium was all he would pay. ” She finally accepted an offer of $100. Finally the court, in deciding the case, said: “But the question herb is, was the settlement conclusive of appellant’s rights as a matter of law under the evidence, or was it a question for the jury? We think the question one for the jury as to whether the release was procured by fraud or coercion.” A'much more liberal theory than that announced in the early case of Burr v. Burton, 18 Ark. 214. So, also, is the case of National Life & Accident Ins. Co. v. Blanton, supra. In that case there is a discussion of the elements constituting duress under the facts there stated and under the decisions of this court. The Blanton Case, perhaps, did not go or reach the same degree of liberality as did the last-cited case, Harper v. Bankers Reserve Life Co., but, at least, under that case, as well as under the Harper Case, a favorable statement to support the position of Fitzgerald is that according to his evidence he believed Mr. Jasspon would not only discharge his stepfather and render the family, including his mother, and his brother who had an invalid wife, comparatively helpless; that by reason of his influential position he could prevent the re-employment of the stepfather after such discharge; that all of them were wholly dependent upon the earnings of the stepfather, and that in addition he held his stepfather in the very highest reg’ard or had for him the same love that children have for their parents; that he had in fact never known any other father; that he had been sent for by Mr. Jasspon, who had delivered this message to him as a. kind of ultimatum, though he did'not use that expression, presenting'to'him,- under .that threat, the most serious consequences that he thought were possible to happen in his afflicted condition,"where he .was a helpless" cripple, a burden'on the parents, as well as -was the brother with the invalid' wife:' "He says tliát he was told' when he employed 'counsel: to maintain his suit, if he failed to accept the $5,000, the discharge of "his stepfather would immediately follow and that the litigation: would be extended for a period- of ten years. It certainly takes no great powers of reasoning to reach the conclusion that young Fitzgerald says he reached'-; that is, that he was confronted with poverty and distress, not only for himself, hut for all others whom he loved and who .were responsible for his. own existence and maintenance. Under . these circumstances and facts, which are. as stated, concluded by the verdict of the jury, it would he impossible to declare, as a matter of law, that this release, was signed free from the influence of the coercion or duress imposed by the conduct established. It is argued that this testimony is unbelievable. The answer is that it was submitted to .the -jury and that the jury, believed it and. that is finality, • .Supported as this verdict is by the evidence, not only of. Fitzgerald, but by others,. the barrier is formed which we would not dare to pass, Appellants .present for our consideration instruction No. 1 given at plaintiff’s request, and which it is insisted is inherently erroneous. That instruction is as follows': ■“You are instructed that releases and contracts, to be valid, must be voluntarily made-; and, where executed under-such circumstances as-would-.enslave the will, the release or contract is void;; because- -consent -is of the essence of. the-contract or.release, and where there is compulsion, there is not consent, for this must be voluntarily. Such a release is void-tor another reason. It is founded in wrong or fraud. It is .not, however, all compulsion which has this effect;-it must amount to duress. But this .-duress must-be actual-violence, or threat. Duress, by threats, exists not wherever a party has made a release under the .influence of a threat, but only where such a threat excites a fear of some grievous wrong. ’ ’ ■ We cannot agrees-,with appellant in-this respect. We think-, however, that -this instruction is most inexpertly worded or inaptly expressed, but that condition- might have been'corrected by a. specific objection calling* attention thereto. Appellants take particular exception to the words :■ ‘ such a release is void for another reason. It. is founded in. wrong er fraud.” .The release discussed by the trial, judge in this instruction . to the jury and .which he said is void is not the release.under.consideration in this case, but it was. the hypothetical -release described by him in the foregoing part of the instruction, and we think, that it is the. only interpretation susceptible under.-, the circumstances. We canno.t thifik that the jury. .understood otherwise. There was.-no specific objection calling attention to these matters and the apparently incorrectly stated proposition is not one in -fact. Under a specific objection»,-.however,, the method of expression might have been improved, but we do not think that the instruction was inherently wrong. Finally, the appellants argue .that Fitzgerald should not have been permitted to sue or maintain his suit except upon condition that he restore the $5,000 paid him for the release. The weight of-modern authority decides this gues.ti.on adversely to appellants ’ contention.. National Life & Accident Ins. Co. v. Blanton, supra; Chicago, Rock Island & Pacific Ry. Co. v. Matthews, 185 Ark. 724, 49 S. W. 2d 392; Harper v. Bankers Reserve Life Co., supra. There are many others. We have attempted to discuss the material matters presented'upon this appeal. In doing so this discussion has perhaps been top long. Other matters of less importance have been'duly considered, although not presented here in this discussion. Upon the whole case there appears to be no error in any one of the several matters urged by the- appellants. It may be said that it is also argued that the verdict of $45,000 is excessive. We do nbt think so.- This young man is -injured to the extent that'both arms have been'removed‘by amputation, one just below and the other just above the elbow.. It appears tfiaf-.although he has been given artificial -arms, he is still unable .to .dress himself, or.to wait upon himself, he* must always be a burden upon someone else to render himself the services required, on account of his affliction, and that, to maintain himself in the future, there is a practical necessity that he must maintain someone else to do for himself, the things impossible now to be performed by him. This condition is brought about solely on account of the injuries suffered by hini: He has an expectancy of 41 years plus. During that time, with earning capacity unimpaired with only reasonable advancement, he might have earned approximately that sum. The recovery, of course,- should compensate for pain and suffering, for humiliation and the anguish on account of the loss of limbs, the impaired earning capacity, as well as the increased expense of living occasioned by the injury.These things are too patent to require argument or citation of authority in support of the conclusion we have reached, thqt the verdict and judgment are not excessive. The judgment is affirmed.

John I. Purtle, Justice. The prosecuting attorney of the tenth judicial district filed a petition for abatement of a nuisance, pursuant to Act 118 of 1937 (Ark. Stat. Ann. §§ 34-111 — 119 [Repl. 1962]). The alleged nuisance was a dance hall owned and operated by appellants. On April 30, 1979, the court ordered the dance hall temporarily padlocked without a hearing and without notice to appellants. The order met the requirements of Ark. Stat. Ann. § 34-115 (Repl. 1962). A hearing was held on May 5, 1979, and the order padlocking the property was continued in force pending a final hearing. The trial court upheld the constitutionality of Act 118 of 1937. The facts are undisputed in this case. Without a hearing or notice to appellants, the prosecuting attorney procured the order from the circuit court padlocking appellants’ property on the ground that it was a public nuisance. The only notice received by appellants was the temporary order padlocking their premises and it was nailed to the door of their business in their absence. Appellants applied to this Court for a temporary writ of prohibition which we denied without prejudice, pending the hearing to be held the same day on the order padlocking the premises. At the hearing on May 5, 1979, the trial court determined Act 118 of 1937 was constitutional and extended the order padlocking the property until the permanent hearing on June 7,1979. Appellants returned to this Court for a temporary writ of prohibition and we granted temporary relief and ordered the matter briefed pursuant to our Rule 16. Ark. Stat. Ann. § 34-111 (Repl. 1962) states: “Dancehall” defined. — Term “dancehall” as used in this act (§§ 34-111 — 34-119) is hereby construed, to mean any building, premise, pavilion, or place of business wherein dancing is permitted or conducted, or engaged in, by the public in general, either for profit or not. Ark. Stat. Ann. § 34-112 (Repl. 1962) states: Dance hall as nuisance. — The operation of a dance hall in which, or around which, public disturbances, the unlawful drinking of intoxicating liquors, quarrels, affrays, or general breaches of the peace are frequent, is hereby declared to be apublic nuisance, and detrimental to the public morals and may be abated under the provision of this act (§§ 34-111 — 34-119) as hereinafter set out. Ark. Stat. Ann. § 34-113 (Repl. 1962) grants the prosecuting attorney, among others, authority to proceed under this Act, either in chancery or circuit courts. Ark. Stat. Ann. § 34-115 (Repl. 1962) provides a temporary injunction may be granted without notice or hearing as was done in the present case. This same Act was considered in the case of Futrell v. State, 207 Ark. 452, 181 S.W. 2d 680 (1944). In Futrell the trial court ordered all the buildings “be closed and not hereafter be used for any purpose whatever for a period of twelve months except by order of the court.” We held the order exceeded the powers granted to the court under the statute; because at the time the order was made there had been no contempt proceedings. Prior cases had held such premises could be completely closed for all purposes only where there was a violation of a prior injunction prohibiting unlawful conduct on the premises. We also considered this Act in the case of Lawson v. State, 226 Ark. 170, 288 S.W. 2d 585 (1956). We modified the order of the trial court which had padlocked a dance hall for a period of one year preventing its operation for any purpose. We reduced the order to one enjoining the use of the property or permitting it to be used for illegal purposes for a period of one year. The order in Lawson was the same as that in Futrell in that it provided all persons be enjoined ‘ ‘from operating the said place, for any purpose whatsoever for a period of one year from this date. ’ ’ We held the order was too broad as the statute was intended to abate the nuisance rather than close the property for all purposes. Citizens have the right to use their property in a legal manner and courts should not interfere with such rights unless compelled to do so. We do not find we have previously been asked to view Act 118 of 1937 as to its constitutionality. The case of Vandergriff v. State, 239 Ark. 1119, 396 S.W. 2d 818 (1965) concerned Act 109 of 1915. The statutes are very similar but they are different. Additionally, the holding of constitutionality in Vandergriff was dicta. In the present case the constitutionality of the Act has been squarely presented to us from the beginning. It was raised at the first opportunity and has continued to be a defense in this case. Therefore, we will consider the question of its constitutionality. Article 2, section 21 of the Constitution of the State of Arkansas states: No person shall be taken or imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed or in any manner destroyed or deprived of his life, liberty or property, except by the judgment of his peers or the law of the land; nor shall any person, under any circumstances, be exiled from the State. The Fifth Amendment to the Constitution of the United States requires that no person be deprived of life, liberty or property, without due process of law. Amendment 14, section 1 to the Constitution of the United States reads in part as follows: . . . nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. In Fuentes v. Shevin, 407 U.S. 67 (1972), the United States Supreme Court considered a somewhat similar case. The Florida statute under consideration provided for taking of property in a summary manner without notice or hearing. In Fuentes the Court stated: The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possession. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment — to minimize substantively unfair or mistaken deprivations of property, a danger that is especially great when the State seizes goods simply upon the application of and for the benefit of a private party. So viewed, the prohibition against the deprivation of property without due process of law reflects the high value, embedded in our consitutional and political history, that we place on a person’s right to enjoy what is his, free of governmental interference. The Court further stated the requirement of notice and an opportunity to be heard raised no impenetrable barrier to the taking of a person’s property. Such safeguards are necessary to avoid unfair or mistaken deprivation of property interest. In Goss v. Lopez, 419 U.S. 565 (1975), the United States Supreme Court spoke of constitutional safeguards in the following language: . . . there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. In the more recent case of Barry v. Barchi, 47 U.S.L.W. 4812 (S. Ct. June 25, 1979), the Court dealt with a temporary injunction very similar to the one in question. In Barry the state had temporarily taken ahorse trainer’s license, without notice or hearing, because one of his horses, which had finished in the money, was determined to have been drugged. The New York rule, like our statute, provided for temporary suspension of the license without notice or hearing. The United States Supreme Court held that the trainer was entitled to a meaningful hearing before his license could be taken from him. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court struck down a Florida statute whicn allowed a person to be placed in jail without an opportunity for a probable cause determination. In Pugh the Court stated: Although a conscientious decision that the evidence warrants prosecution affords a measure of protection against unfounded detention, we do not think prosecutorial judgment standing alone meets the requirements of the Fourth Amendment. Fundamental requirements of due process require the opportunity to be heard at a meaningful time and a meaningful place before a person may be deprived of life, liberty or property. A temporary injunction, under the circumstances of this case, ordinarily turns into a permanent one. Even a delayed hearing is to a great extent an exercise in futility because even if the rights be restored the deprivation of rights during the temporary injunction cannot be regained. The statute in question here specifically allows the state to proceed without a bond. Therefore, damages incurred as a result of a wrongful temporary injunction would seldom, if ever, be recovered. The record in this case clearly shows there was no threat to life, liberty, or property, at the time the injunction was issued. In fact, the record does not disclose that there was anything more than drinking outside the building going on at this place. There were allegations that fights and other disturbances had occurred but all of the witnesses who testified denied personal knowledge of such occurrences. Merely operating a dance hall is not of itself illegal. Unlawful activities are often carried on outside other places of business. We hold the statute authorizing a temporary or permanent injunction without notice and an opportunity to be heard fads to meet the fundamental requirements of the due process clause of the Fifth and Fourteenth Amendments to the Constitution of the United States and article 2, section 21 of the Constitution of the State of Arkansas. The statute is so broad as to allow the closing of a place of business merely upon the verified allegation of a prosecuting attorney without any proof whatsoever in support thereof. The opportunity for abuse of power in such cases is too great to be allowed to continue. Even an honest mistaken belief that a nuisance was being carried on would deprive the person of his property without due process of law. Therefore, we hold that Act 118 of 1937 is unconstitutional. The case is reversed and remanded with directions for the trial court to dissolve the injunction and cause the property to be returned to the appellants. Reversed and remanded. Harris, C.J., not participating. Fogleman, J., dissents.

David Newbern, Judge. This case was appealed to the Arkansas Supreme Court which assigned it to the Court of Appeals in accordance with Supreme Court Rule 29(3). The suit below was brought by the heirs of Charles McDowell to quiet title in two lots located in Warren, Arkansas. The named defendant was Beatrice King who claimed title by virtue of adverse possession and tax deeds she acquired in 1975. The parties stipulated that Mrs. King’s tax deeds were invalid, but they correctly assumed that, in accordance with Ark. Stat. Ann., § 34-1419 (Repl. 1962), a party asserting title against one who has tax deeds must have been in possession within two years prior to the commencement of the action, regardless of the validity of the tax deeds. Terry v. Drainage Dist. No. 6, 206 Ark. 940, 178 S.W.2d 857 (1943); Honeycutt v. Sherrill, 207 Ark. 206, 179 S.W.2d 693 (1943); Honeycutt v. Sherrill, 207 Ark. 206, 179 S.W.2d 693 (1944); Pitts v. Johnson, 212 Ark. 119, 205 S.W.2d 449 (1947), and Sage Land & Lumber Co. v. Hickey, 222 Ark. 147, 257 S.W.2d 941 (1953). The parties, both at the trial and on this appeal, seemed to see the issue as whether Mrs. King was actually in possession of the property. As we see the issue, however, that factual determination is not controlling. Rather, the question is whether Mrs. King gave notice of her claim to Mr. McDowell or his successors sufficiently to convert her originally permissive possession into adverse possession. In this de novo review, we have no hesitancy in examining the record from this point of view. , Charles McDowell died intestate in 1970. Thus, the appellants, his heirs, are successors to his interest in the property in question. They contend they are not barred by the two-year statute because Mrs. King was their tenant, and thus they were in possession of the property during the time she lived there. Mrs. King contends she has been holding adversely to Charles McDowell and the appellants since she received her tax deeds, at least, thus invoking the two-year statute, and that she has been in actual, adverse possession since 1970 when she decided to make her claim to the land. Prior to moving to California in the early 1960s, Charles McDowell and his family lived in a house on the property in question. After they left, the property was rented to Mrs. King, who was then Mrs. Martin, and her husband for $18.00 per month. The 1964 taxes were delinquent, and the property was certified to the State. That land was redeemed in the name of Charles McDowell by Mr. Martin, who was then the husband of Mrs. King. From 1965 until 1972, the taxes were paid by Mrs. King or her husband in the name of Charles McDowell. The rental payments continued only for a short period. Mrs. King testified she had “decided to claim the property in 1970” as she had talked to Mr. McDowell by telephone, and he had said she and her husband could have the house, apparently because he had no money with which to pay the taxes. Her own testiomony, however, showed her telephone conversation with Mr. McDowell to have occurred in 1965, long before she quit paying the taxes in his name. Mr. Herbert Green, a stepson of Charles McDowell, testified that as of 1965 Mr. McDowell, who had been taken to California to live with Mr. Green, had lost his memory. Mr. Green’s testimony was that he had, on behalf of Mr. McDowell, advised Isreal Thomas, the rental agent or “go-between,” to tell Mrs. King and her husband they could stay on the property if they would keep it up and pay the taxes in Mr. McDowell’s name. Mrs. King says she received no such message. In 1971, Mrs. King and her husband divorced, and she moved off the property, leaving her daughter to live there. The evidence conflicted as to the quality of Mrs. King’s possession thereafter, but as stated earlier, because of the view we take of this case, that evidence is not relevant. There is no showing by Mrs. King that any notice of her claim of ownership was given to Mr. McDowell or his heirs. Mr. Green testified he first learned of the tax deed claim on a visit to Arkansas in 1976. Mr. Green is not one of the appellants, and thus even the notice to him could not be considered notice to them. Even if it could be so considered, it would have fallen far short of effecting Mrs. King’s adverse possession two years before this action was brought, as the complaint was brought in July, 1978, and Mr. Green’s visit to Arkansas occurred in September, 1976. For permissive possession to become adverse possession, notice must be given to the owner. Still v. Still, 239 Ark. 865, 394 S.W.2d 733 (1965); Thomas v. Stobaugh, 244 Ark. 787, 427 S.W.2d 170 (1968). These cases seem to require actual as opposed to constructive notice, but in this case, there is not even a showing of constructive notice. The reason the parties stipulated the tax deeds were void was failure to conduct the tax sale in accordance with the required statutory procedures. An affidavit by the Bradley County Clerk was introduced in which he said he could find no proof of the required publication of the list of property to be sold for delinquent 1972 taxes. It was that year in which the alleged delinquency occurred which permitted Mrs. King to make her purchase. In Laney v. Monsanto Chemical Co., 233 Ark. 645, 348 S.W.2d 826 (1961), the Arkansas Supreme Court refused to permit a claim of title by a tax deed holder even though the prior record owner knew of the tax sale where he had no notice of the attornment of his tenant to the tax deed holder. The record contains no evidence of notice of any kind to the appellant heirs or their predecessor in title. Thus, the appellee’s claim which rests wholly on a showing of adverse possession following possession by permission must fail, and we reverse and remand for entry of a decree consistent with this opinion and for determination whether Mrs. King is entitled, under Ark. Stat. Ann., § 34-1423 (Repl. 1962), to recovery for any benefits she may have conferred on the appellants while she was in possession of the property.

Georoe Nose Smith, Justice. The appellant was charged with 138 counts of forgery and uttering, all arising from his business transactions with the Benton State Bank. In 1966 and 1967 Ouletta was a contractor, building houses that were financed by the bank. The informations were filed in. 1968, after it was discovered that Ouletta bad transferred to tlie bank, for value, a great many construction notes and mortgages that were signed with fictitious names of persons who were supposedly employing Ouletta to build houses. The circuit court, trying the case without a jury, found the defendant guilty and imposed two ten-year sentences, to run concurrently, with a minimum of one third to be actually served. TTe first consider Ouletta’s contention that lie should have been acquitted, for insufficiency of the State’s evi elenco. II is insisted that the bank’s officers knew the signatures to be fictitious and that therefore Ouletta was not shown to have had the necessary intent to defraud. That issue involved a question of fact about Avh.ich the testimony Avas iu conflict. Ouletta usually dealt Avith W. A. Springer, formerly a vice-president of the bank. Springer testified that he regularly chocked on the progress of Ouletta’s houses when Ouletta first began business. After several years, however, Springer came to have confidence in Ouletta and discontinued any attempt to verify the notes and mortgages that he brought to the bank. Springer testified that he had no idea that the instruments were forgeries. W. R. Also-brook, president of the bank, corroborated Springer’s testimony. Ouletta, testifying in his own defeuse, maintained in substance that his financial condition had deteriorated to such an extent that the bankers must have knoAvn that the instruments were not genuine. When, however, Ouletta AAms asked point-blank by his own attorney AAdiother he said anything to Mr. Springer about Ihe use of fictitious names on the notes, his reply AAras evasive: “Well, I might have. I probably did say that they probably were fictitious, to which he probably got the idea.” Thus the issue was essentially one of credibility, upon which the trial court’s finding is conclusive. Secondly, it is argued that the court erred in allowing Fred Caudle, a. Federal Deposit Insurance Corporation bank examiner, to testify that Ouletta made a statement in writing that he had signed the fictitious names without anyone else knowing about it. It is insisted that Caudle’s testimony and the signed statement should have been excluded, because Ouletta was not given a Miranda warning by Caudle. That argument is not sound. Counsel rely upon two cases: United States v. Wainwright, 284 F. Supp. 129 (D.C. Colo. 1968), and United States v. Turzynski, 268 F. Supp. 847 (D.C. Ill. 1967). In those cases it was held that a taxpayer should he warned of his rights before being interrogated about his income tax returns by the Intelligence Division of the Internal Revenue Service. In both cases, however, it was pointed out that a tax matter is not referred to the Intelligence Division until there is reason to believe that the taxpayer has committed a crime. The jurisdiction of the Intelligence Division is limited to criminal matters. Thus those cases merely followed Escobedo v. Illinois, 378 U.S. 478 (1964), in holding that the warning must be given when an investigation reaches the accusatory stage. That was not the case here. Caudle testified that he was not a member of any law enforcement agency. In making his examination of the bank he noticed the similarity of handwriting on the notes and asked Ouletta to come in, because his name and address were on the documents. According to Caudle, Ouletta came to the bank voluntarily and signed the statement in the course of a conversation about the documents. It cannot be said that Ouletta was in custody or was deprived of his freedom of action in any wav. See Miranda v. Arizona, 384 U.S. 436 86 S. Ct. 1602, 16 L. Ed. 2d. 694 (1966), and Orosco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969). The trial court correctly admitted in evidence Caudle’s testimony and the statement signed by Ouletta. Finally, it is argued that after the trial judge had made a finding of guilty and had announced the sentence, the court erred in stating that he would suspend the sentence if the bank president, Alsobrook, recommended it — ■ which Alsobrook refused to do. . We find no error, not only because the matter of suspending the sentence lay within the discretion of the trial court, but also because there was no objection nor exception to the court’s request for Alsobrook’s recommendation. McDonald v. State 160 Ark. 185, 254 S.W. 549 (1923). Affirmed. Jonhs, J., not participating.

Smith, J. This is a suit upon a promissory note, executed by appellee to Faulkner County Bank & Trust Company, on June 19, 1930, for $4,411.75. As collateral for this note there was pledged certain shares of capital stock of the Bank of Conway and of the Conway Compress Company. The Faulkner County Bank borrowed a large sum of money'from the Bankers Trust .Company of Little Rock, and pledged to it, with other securities, the above-mentioned note of appellee. Shortly thereafter the Faulkner County Bank was taken over by the State Bank Commissioner for liquidation, and ..the Bankers Trust Company began the collection of the notes held by it-as collateral security to the Faulkner County Banknote. Three, payments of $100. each were made on ap-pellee’s note in 1930. Appellee was"also indebted to the Bank of Conway; and to strengthen its. note' the Bank of Conway, on . June 15, 1931, paid the Bankers Trust Company $3,500 for the release .of the Bank of Conway, .and the compress stock. Before releasing said- stock the Bankers Trust Company required-appellee'-to ássign to it the deposit of appellee in the Faulkner County' Bank. By reason of said' assignment dividends were paid to the' said Bankers Trust Company and applied on appellee’s note, which reduced-the principal thereof to .,$430.01., The -Bankers .Trust Company was itself later taken-- ever by the bank commissioner for-liquidation, ■ a-nd that official'has sued to collect this' balancé, with interest thereon.;;;' Several interesting.- questions have been raised in the respective pleadings,.filed by the parties, which, we find’.ifc.unnecessary to consider,.inasmuch-as the question of ‘appellee^ present liabilitywas decided by-the jury’s answer to the following question of fact: “Was the páyfnent of $3,500, and ’the 'assignment of approximately $1,150 deposits’in the Faulkner County'Bank & Trust Company, insolvent, made by the defendants to the Bankers Trust Company, in full settlement of the $4,111.75 balance due on the note held by said Bankers Trust Company, or was said payment merely a partial payment, with the assignment, as collateral, for the balance due?” The verdict of the jury imports' the' answer that the assignment was not as collateral, -but. iii payment.of the note... . . .... .-' - -.: ' For the-reversal of’ the judgment pronounced upon this verdict itois insisted tMt the testimony-is not sufficient to sustain the finding and verdict of th'e- jury. 'The answer to this question is, in our opinion,- decisive Of this appeal. - ' ’* ■ In this Connection, and upon that issue, it is-insisted that a- diffetent verdict might’ and probably’ would’have been! returned had the”'court- not refused to ’’give, over appellant’s-' objection..and-exception -to- that'action, an instruction-reading as follows: “You are instructed that whether -the assignment is in payment- or as collateral” security is a question of intention depending upon the testimony in the case. - In the absence of testimony tending to show an intention of tender for and receipt of as payment in whole or in part, the- law presumes that it is only assigned as collateral. The ’burden of establishing the contrary rests upon the debtor; '- The circumstances that the assignment is absolute in form is of -no consequence on the question of- intention/ because’ the assignment simply operates to transfer- title.’1 ’■’ '■ We. think’no error was committed in refusing this instruction. It will be observed that -the’ instruction declares the law-to be that “The -circumstances that the assignment is absolute in form is of ‘no consequence on the question of ’ intention, because- the assignment simply operates to-transferí title.” -Had-the instruction read that the circumstance that the assignment was absolute in form “was-not of ■ controlling effect,” instead of saying that it “is of no consequence,” it would have been a correct instruction. In the form requested the' instruction was a charge upon the weight to -be given the evidence, and was erroneous for that reason. It was not a correct-declaration of the- law, for the reason that the jury had the right to ’ consider the-form of the' assignment in determining the-purpose of its execution. • ■ Cases are cited- by appellant to the effect that, in the absence of evidence tending to show an intention to pay and receive the securities assigned as satisfaction of-the debt, in whole or in part, the law presumes that they were assigned only as collateral.-’ But here there is no-absence of evidence showing an intention to pay the note by the assignment. On the contrary, evidence was offered to that effect, which the jury has accepted as true. It was also competent to show that the assignment was intended only to transfer title so that the proceeds of the collateral might be applied, not as payment of the note, but as' credits thereon, and much testimony was offered to that effect, but the jury found to the contrary. It is also insisted that the jury might and probably would have made a different finding of fact had the court not erroneously excluded a letter from C. E. Crossland, of the Bankers Trust Company, to George Shaw, of the Bank of Conway. This was a transmittal letter from the one bank to the other, in which the assignment of the deposit and of the compress stock was referred to as collateral. But this letter was not written to nor received by appellee. The rule, res inter alios acta, renders it immaterial against appellee. Royal Neighbors of America v. McCullar, 144 Ark. 447, 222 S. W. 708; Davison v. Harris, 165 Ark. 518, 265 S. W. 67. There was much testimony to the effect that the assignment was by way of collateral, and not as payment. The preponderance of the testimony appears to be to that effect. One of the strongest circumstances having that effect is a letter written a short time before the institution of this suit, in which appellee proposed a settlement pursuant to prior negotiations, .and no contention was there made that the note had been previously paid. Ap-pellee offered the explanation, however, that he thought the transaction'had long been closed by payment, as it was then six years old, but when a liability of about nine hundred dollars, including interest, was asserted against him, he proposed to pay about four hundred dollars by way of compromise, and that he did this because he thought a suit would impair his credit, and that he could better afford to pay four hundred dollars than to be sued. This explanation that his letter was not intended to be an admission of liability and was merely an offer of compromise was, of course, a-question of fact for the jury. Appellee testified as follows: He did not owe the Bankers Trust Company anything, but he made Mr. Crossland of that bank a proposition which was first declined, but later accepted, to the'- effect that “If I eonld get hold of $3,500 and give it to him and assign the -deposit in the Faulkner County Bank, we would settle on that basis,” and that later he was notified by the Bank of Conway that if he would assign certain compress stocks and certain Bank of Conway stock, the Bank of Conway would loan him the- $3,500 necessary to make good his proposal to the Bankers Trust Company, and that the Bankers Trust Company would settle for said 'payment and the assignment of the deposit in the Faulkner County Bank, and that without further negotiations the Bankers Trust Company sent up an' assignment to him to execute in accordance with- his proposal: - The matter was closed on this basis, and he considered the note paid in full,- and that thereafter he had no interest in the dividends paid on his deposits with' the Faulkner County Bank, the dividends on the deposits being paid to the Bankers Trust Company. In explaining this transaction Mr; Shaw, of the Bank of Conway, testified that “ Wé worked out a two' or three way deal.”' The fact that appellee did not demand or receive his note here sued on upon its alleged payment fis a strong circumstance tending'"to discredit his version of. the transaction; but we cannot say that it is conclusive of the;'c[uestipn.. It was a circumstance .to .be weighed, and considered-by. the .jury, in.connection with other,'testimony offered a-t the-trial. • : Upon the wholercasu,'yvg‘are unable to say. that the verdict of. the jury finding;that the note'was paid is without sufficient testimony--to support that finding. - - The judgment. must, therefore, be affirmed, and - it is so ordered.

Frank Holt, Justice. A jury found appellant guilty of aggravated robbery (Ark. Stat. Ann. § 41-2103 [Repl. 1977]) as a habitual offender with more than four prior convictions and assessed his punishment at 55 years’ imprisonment (Ark. Stat. Ann. § 41-1001 (2) (a) [Repl. 1977]). Appellant, through the public defender, first contends that the court erred in denying his petition for a certificate of summons to several nonresident witnesses, or in the alternative, in denying his motion to depose these witnesses. The issuance of a petition for certification of a material nonresident witness, which compels attendance at government expense, is not an absolute right and lies within the discretion of the trial court. Ark. Stat. Ann. § 43-2006 (Repl. 1977). See also Reistroffer v. United States, 258 F. 2d 379 (8th Cir. 1958). It is well settled that the court’s ruling on matters pertaining to the trial will not be set aside absent a “manifest abuse of discretion.” Roberts & Charles v. State, 254 Ark. 39, 491 S.W. 2d 390 (1973); and Petty v. State, 245 Ark. 808, 434 S.W. 2d 602 (1968). Here the appellant entered a plea of not guilty by reason of insanity. At a pretrial hearing, appellant sought the attendance of several nonresident witnesses (three psychiatrists, a pediatrician, an osteopath, and the program director at a California State hospital). The trial court denied the petition and the motion to depose. Appellant argues that this was reversible error because the witnesses’ testimony was material and relevant to his insanity defense; i.e., he was suffering from schizophrenia and that a schizophrenic may not be able to control his behavior. The proffered testimony concerning appellant’s mental condition was conflicting. None of the physician witnesses had examined or treated the appellant within the past two years, and some had not seen him in more than four years. The appellant admitted that the 1966 diagnosis of schizophrenia by one of the psychiatrists was contrary to the final report of eight doctors who had declared him sane and returned him to a Texas court to stand trial. He also admitted that although one of the psychiatrists had committed him to a California State Hospital in 1977, the final hospital report had declared him sane, and he was returned to the California court system. The court allowed appellant’s request that reports of the various hospitals and treating physicians be admitted into evidence. It appears the Arkansas State Hospital, which found appellant without psychosis, had the benefit of appellant’s previous treatments at these hospitals and by these physicians. In the circumstances, we certainly cannot say that the trial court abused its discretion. Neither can we agree with appellant’s second contention that the court erred in denying his motion for a change of venue due to prejudicial pretrial publicity in the community. Appellant adduced testimony from two local news media representatives that numerous news items were published about this and other pending charges against appellant during the seven months’ interim between his arrest and trial. Appellant did not support his petition by any affidavits as required by Ark. Stat. Ann. § 43-1502 (Repl. 1977). There was no evidence that “the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.” Ark. Stat. Ann. § 43-1501 (Repl. 1977). Since the appellant has not met his burden of proof by demonstrating that “a fair trial was not likely to be had in the county”, we cannot say that the trial court abused its discretion in denying the motion. Kirkendall v. State, 265 Ark. 853, 581 S.W. 2d 341 (1979). Appellant’s third contention is also without merit. He avers that the court, after refusing to sequester the jury, erred in not granting a mistrial after five of the jurors had read an allegedly prejudicial newspaper article on the morning of the second day of trial. Although the major portion of the article summarized the testimony and proceedings of the first day, the closing sentences stated that “Wright also faces additional charges of a second count of aggravated robbery, arson and escape in Boone County. No trial date has been set in those cases.” When the judge examined the jurors in chambers concerning possible prejudices, each stated in effect that what they had read in the article was covered the previous day in court and nothing they had read would bias or prejudice their opinion as jurors. None indicated they had read the concluding part of the news article. We cannot say that the trial court abused its discretion in refusing to grant a mistrial. See Moseley v. State, 258 Ark. 485, 527 S.W. 2d 616 (1975); and Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979). Neither can we agree with appellant’s contention that the trial court erred in admitting his tape recorded confession into evidence. When the question of the voluntariness of a confession is raised on appeal, we review all of the evidence and make an independent determination based on the totality of the circumstances. The burden is on the state to prove the voluntariness of an in-custody confession. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978). The finding of the trial judge will not be set aside unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). Here one of the officers, during the course of questioning, stated that “things would probably go easier if Wright told the truth’ ’. In Penton v. State, 194 Ark. 503, 109 S.W. 2d 131 (1937), an officer told the accused that “it would go well with him if he told the truth.” We upheld the admissibility of the confession stating that the statement “was merely an expression of an opinion, and. . . was not coupled with innuendo or subtleties calculated to deceive the prisoner.” In Crooker v. California, 357 U.S. 433, 78 S. Ct. 1287, 2 L. Ed. 2d 1448 (1958), the court stated that an admonition by an officer to tell the truth does not render a confession involuntary. Here the officer also stated that appellant told him he was “involved in” another robbery and, as requested, he told appellant he “would try to get the FBI involved.’’Appellant, age 30, is no stranger to the criminal justice system inasmuch as he admittedly has been arrested some twenty times and incarcerated six or seven times. We certainly cannot agree with appellant’s argument that his confession was a result of a promise of benefits by the investigator and that the court, therefore, erred in holding the confession voluntary and admissible. Neither do we agree with appellant’s claim that he was in a period of mental stress which made him unable to control his impulses and incompetent to make a confession. Appellant places great emphases on the testimony of a Dr. Jones of the Ozark Regional Mental Health Center who examined him while he was in the county jail. Dr. Jones testified that there was a “possibility of underlying psychosis” in the appellant’s mental condition. However, there was no acute psychosis at the time he examined the appellant; the appellant’ s physical complaints were most likely delusionary; and at the time of the examination, the appellant had good contact with reality. Also appellant’s reliance on a 1975 psychotic report of a Dr. Cole at a California State Hospital is also misplaced. Although the report states that the appellant is ‘ ‘ at times’ ’ ‘ ‘ definitely psychotic’ ’, a later report by the same hospital staff adjudged the appellant sane and returned him to the California court system. We cannot say that the 1975 report of Dr. Cole was more credible than that of the staff s report and Dr. Jones’ testimony. Further, he was examined by the Arkansas State Hospital staff and found without psychosis. Appellant further argues that his confession was involuntary inasmuch as he had taken four to six dexadrine tablets, an amphetamine which stimulates the body system, shortly following the robbery and was under the influence of this drug when he gave his confession. He testified that the dexadrine made him “talk a lot” and that he would not have given the statement had he not been under the influence of the drug. The officers testified that appellant seemed normal and coherent and there was nothing in his appearance to lead them to believe that he was under the influence of drugs. Another officer, who had the first contact with the appellant a short time following the robbery, testified that the appellant seemed normal and showed no signs of irregular behavior. It was for the trial court to resolve the credibility of the witnesses. After fully reviewing appellant’s three-faceted argument, we cannot say the trial court’s finding that appellant’s confession was voluntary is clearly against the preponderance of the evidence. Appellant argues next that there was an invalid, warrantless search of his automobile when he was arrested and certain items found therein must be suppressed. On appeal we make an independent determination of whether this evidence should have been suppressed and affirm the finding of the trial court unless it is clearly against the preponderance of the evidence. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139 (1978). Here, based upon a description of the individual who had committed the robbery and the car he was driving, a policeman stopped appellant on a busy highway some distance from the crime scene. Appellant was observed reaching toward the right floorboard. Within a few minutes a state trooper appeared. This officer looked through the car window and saw an open grocery sack containing guns and what appeared to be some prescription bottles on the front floorboard. The officer removed the sack and recovered two pistols, numerous billfolds and several drug containers. In Kelly v. State, 261 Ark. 31, 545 S.W. 2d 919 (1977), we said: The observation of evidence in plain view is not a search, or to say the least, not an unreasonable one. A resulting seizure is not the result of an unreasonable search. Looking at what is in plain view, or not concealed, is not a search, as prying into hidden places would be. (Citing cases.) The basic test is whether the officer had a right to be in the position he was when the objects seized fell into his plain view. To the same effect see Berry v. State, 263 Ark. 446, 565 S.W. 2d 418 (1978). Here the trial court correctly concluded that the warrantless search was justified under the “plain view” doctrine. Neither can we agree with appellant’s contention that the court erred in denying his motion for a mistrial after a paper sack marked “Wheeler” was shown to the jury. The appellant argues that the name on the sack improperly connects him with the local robbery of a Mrs. Wheeler. The sack contained drug containers taken during the robbery. The state did not introduce the sack into evidence and there was no indication that any of the jurors saw the name. The denial of appellant’s motion for a mistrial did not constitute an abuse of discretion by the trial court. See Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979). Similarly, the fact that one of the witnesses subpoenaed by the appellant failed to appear at the trial would not necessitate a mistrial. According to appellant’s proffer, this witness would testify that while he was a resident at the Arkansas State Hospital, he had observed conditions that “were not conducive to the performance of psychological or medical examinations in cell block areas. ’ ’ When the court denied appellant’s motion for a mistrial, the appellant took the stand and testified that he had been unable to concentrate during the psychological testing. We hold that the trial court did not abuse its discretion in refusing to grant the mistrial. Appellant’s eighth contention that the court erred in denying its motion to quash the amended information is also meritless. One month prior to trial, upon rejection of a negotiated plea, the information was amended to charge the appellant as a habitual offender pursuant to Ark. Stat. Ann. § 41-1001 (2) (a). Suffice it to say, application of the statute does not constitute double jeopardy, the amendment was timely filed, and it was not error for the prosecutor to file the habitual offender charge when the appellant withdrew from plea negotiations. See Dolphus v. State, 248 Ark. 799, 454 S.W. 2d 88 (1970); Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977); Bordenkircher v. Hayes, 434 U.S. 357 (1978); and Davis v. Bennett, 400 F. 2d 279 (8th Cir. 1968). Appellant next urges that his convictions of separate felonies, which resulted in concurrent sentences, should only count as one conviction in applying the habitual criminal statute. In effect he argues confinements rather than convictions should be counted. We disagree. Section 41-1001 (2) speaks in terms of convictions rather than confinements. See also Brown v. State, 264 Ark. 248, 570 S.W. 2d 251 (1978). The burglary exception is not applicable here. Ark. Stat. Ann. § 41-1001 (3) (Repl. 1977). Appellant’s ninth contention is also without merit. Since appellant was brought to trial within the first full term of the Boone County Circuit Court following his arrest, he was not denied his constitutional right to a speedy trial. Wade v. State, 264 Ark. 321, 571 S.W. 2d 231 (1978); Ark. Stat. Ann. § 22-310 (Repl. 1962); and Vol. 4A, Ark. Stat. Ann., Rules of Crim. Proc., Rule 28.1 (a) (Repl. 1977). Neither can we agree with appellant’s argument that the court erred in denying his motion for examination by a cardiovascular specialist, a neurologist and a nerve specialist during his seven months’ incarceration pending trial and forcing him to trial without appropriate medical treatment. Appellant complained of various ailments including heart problems and a painful lump in his neck. The record indicates that he had been examined by at least four physicians and had undergone numerous blood and heart tests to no avail. Suffice it to say that appellant was not denied proper medical treatment. See Andrew v. State, 265 Ark. 390, 578 S.W. 2d 585 (1979). Appellant’s final contention that his 55 year sentence exceeds the maximum allowed by law is also meritless. In view of appellant’s seven prior felony convictions, the 55 year sentence imposed by the jury was consistent with the plain language of the statutes which provide in pertinent part: § 41-2102 (2): Aggravated robbery is a class A felony. § 41-1001 (2): A defendant who is convicted of a felony and who has previously been convicted of four [4] or more felonies, or who has been found guilty of four [4] or more felonies, may be sentenced to an extended term of imprisonment as follows: (a) not less than fifty (50) years nor more than life, if the conviction is of a class A felony; Affirmed. Harris, C.J., not participating.

Ernie E. Wright, Chief Judge. This appeal is from a judgment of the Pulaski County Circuit Court affirming a decision of the Workers’ Compensation Commission, and was transferred to the Court of Appeals by the Arkansas Supreme Court pursuant to Rule 29(3). The Administrative Law Judge heard the appellant’s claim and made an award in favor of appellant. Upon appeal to the full Commission the decision of the Administrative Law Judge was adopted, and on appeal to the circuit court the opinion and award of the Workers’ Compensation Commission was affirmed. In this appeal appellant contends, first, that the circuit court erred in finding that appellant was not a full time employee under Arkansas Law and entitled to weekly benefits of $77.00 per week rather than the $48.00 weekly awarded; and second, that the court erred in not finding that appellee was liable for a fifteen per cent penalty for alleged safety violation under Ark. Ann. Stat. §81-1310 (d) and §81-108 (a). On the first point of alleged error, there was testimony on the part of the appellee that appellant was hired as a part time worker only and she was expected to work only four hours a day on five days a week, that some additional hours were available for her from time to time, but she was not required to work in excess of her normal four hours per day. The payroll record reflects that she actually generally worked twenty some odd hours per week. The appellant testified that it was her understanding that she would be available for work the full eight hours per day if necessary. The question raised involves the application of Ark. Stat. Ann. § 81-1312 in determining the average weekly wages. The rule is well settled that if there is substantial evidence to support the Commission’s finding the decision of the Commission must be affirmed on appeal. The case is distinguished from the case of Gill v. Ozark Forest Products et al, 255 Ark. 951. In that case the court found it was undisputed that the contract of hire was based on eight hours a day and five days a week whenever work was available. Clearly there was substantial evidence to support the Commission’s finding that the average weekly wages of the appellant should be computed on the basis of a normal part time work schedule of twenty hours per week, plus overtime actually worked. The trial court was correct in affirming the Commission’s finding on this point. On appellant’s second and only other point for reversal, we do not find that the court erred in affirming the decision of the Commission rejecting the appellant’s request for imposition of a 15% penalty under Ark. Stat. Ann. § 81-1310, which provides: “Where clear and convincing evidence that an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employer, compensation or death benefits provided by the Act (Workers’ Compensation Act) shall be in creased by fifteen per cent (15%). This fifteen per cent (15%) increase shall be paid into the Second Injury Fund, less any attorney’s fee attributable to it.” Appellant cites no specific safety statute or official regulation it is contended the employer violated other than Ark. Stat. Ann. §81-108, which is not a part of the Workers’ Compensation Law, and which only in general terms requires every employer to furnish employment which shall be safe for the employees, furnish and use safety devices and safeguards, and adopt and use methods and processes reasonably necessary to protect the life, health, safety and welfare of such employees. The Commission found that the appellees are not shown to be liable under §81-1310 (d). Before the penalty provision could be invoked it would have been necessary for appellant to have established by clear and convincing evidence that appellant’s injury was caused in substantial part by the failure of the employer to comply with Arkansas Safety Statute or regulation pertaining to safety of employees. The injury of appellant was sustained incident to a conveyor belt that extended out part way in an aisle. There is no contention that the employer was guilty of violating any statute or regulation specifically dealing with conveyor belts or aisles. Also, it is not shown that any injury had previously occurred incident to the conveyor belt. We are unable to say that the finding of the Commission is not supported by substantial evidence. Dednam v. American Machine & Foundry Co., 235 Ark. 962 We affirm the judgment of the court in affirming the award made by the Worker’s Compensation Commission. Penix, J., not participating.

John A. Fogleman, Justice. This appeal is a sequel to Montgomery v. First National Bank of Newport, 242 Ark. 329, 414 S.W. 2d 109. The substance of the complaint of appellant is stated there. AYe held that it stated a cause of action against the administrator of the estate of Lucas G. Balch, appellant’s father and her legal guardian, and the surety on his bond as guardian. AYe held that a demurrer contained in an amended answer filed by appellees did not properly raise the defenses of limitations and laches because the complaint contained allegations that Balch concealed the fraud charged by his daughter in her complaint and because the statute of limitations did not begin to run until Balch, as a fiduciary, had repudiated his trust. On remand the cause was tried on the pleadings filed prior to the first appeal. The defenses raised by the answers of appellees were the statute of limitations, a release of Balch and his surety by receipt executed by appellant, a general denial, and laches. The latter defense was based upon allegations that appellant’s action was brought after the death of her father, the only witness familiar with the entire matter. It was also alleged that virtually six years intervened between the close of the guardianship on which appellant based her cause of action and the filing of this suit. It appears to be undisputed that the assets of the guardianship consisted of a $10,000 savings and loan certificate issued by-Newport Federal Savings and Loan Association on November 28, 1951, United States Savings Bonds having a maturity value of $2,900, and a bank account amounting to $882.58. Most of these assets were investments of proceeds from National Service Life Insurance on her brother. After a trial on the merits, appellant’s complaint was found to be without merit by the chancery court and was dismissed with prejudice. Appellant relies on two points for reversal. They are: I. Alleged error in allowing attorney Fred M. Pickens, Jr., to testify for appellees; II. The tried court’s finding the appellant’s claim ivas with oíd merit is against the preponderance of ttie evidence. We shall discuss these points in the order listed. i. Lucas G-. Balch was appointed legal guardian of appellant, his daughter, in the probate court of Jackson County in 1951. Appellant became 18 years of age on August 15, 1959. Balch died about November 21, 1965, in Jackson County. At all times during the guardianship, the guardian was represented by the law firm of Pickens, Pickens and Boyce, or its predecessor. Fred M. Pickens, Jr., was the attorney in this firm who actually represented and advised Balch. He assisted Mr. Balch in the preparation of the guardian’s final accounting and all matters pertaining to the termination of this guardianship. He obtained an order on October 27, 1959, vesting the assets of the guardianship in appellant. He also drafted a receipt, waiver of notice and entry of appearance for the signature of Florence O. Balch. This instrument, in which appellant acknowledged receipt of all moneys and property due her and consented to the entry of an order in the probate court confirming the final accounting of the guardian, was purportedly executed in his presence. Appellant denied executing this instrument. The order confirming' the final settlement and discharging the guardian and his surety was obtained by this attorney. Appellant alleged that she never received any of the money or property of the guardianship and that she was unaware of the existence of this receipt until January 12, 1966. Although her name was signed to a request for payment endorsed on the United States Savings Bonds and dated October 29, 1959, she testified that she did not sign the bonds or receive any of the proceeds. According' to Pickens, the bonds and savings and loan certificate were kept in his safe until appellant and her father came to his office after the entry of the order vesting the assets in her. Pie testified that the savings and loan certificate was delivered on the same date that appellant signed the bonds and that a new certificate dated November 1, 1959, issued to appellant was placed in his custody and put in his safe. He also testified that this certificate was delivered bjr him to Mr. Balch on January 26, 1960, when Balch advised Pickens that appellant and her husband wanted to use it to buy a motel owned by Balch. The record indicates that Pickens did not participate in any of the proceedings in this case except as a witness. All of the pleadings on behalf of appellees are signed by either Wayne Boyce or Kenneth H. Castleberry, both connected with the law firm. No appearance. by Pickens as an attorney is noted in any part of the record. When the trial commenced, it was noted that appellees appeared by attorney Kenneth Castle-berry of Pickens, Pickens and Boyce. While appellant argues that Pickens gave instructions to his associate, Castleberry, while oil the witness stand, she bases this contention upon statements in the record that Pickens offered suggestions to Castleberry as to methods of preserving the record. We deem this to be too insignificant to constitute an actual participation in the trial of the case. Appellant relies upon Canons 6 and 19 of the Canons of Ethics promulgated by the American Bar Association and adopted by this court and upon our holding in Rushton v. First National Bank, 244 Ark. 503, 426 S.W. 2d 378. We do not find reversible error on this point. At the outset, it should be noted that the trial of this case was had on January 16, 1968, some ten weeks prior to our decision in the Rushton case. It was also about thirteen weeks prior to the delivery of our opinion in Old American Life Insurance Co. v. Taylor, 244 Ark. 709, 427 S.W. 2d 23, wherein we reiterated the admonition that neither the partner nor other members of the firm should participate in the trial of the case when one of them was a witness therein. There had been a widely held opinion that the requirements of Canon 19 were met when the testifying partner left the trial of the case to other members of his firm. See Formal Opinion 220 reproduced as an Addendum to the Rushton opinion at page 517. Canon 19 provides as follows: “ ‘When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.’ ” The RusMon case was the first ease in this state in which reversible error was based upon a violation of the Oaiious of Ethics. Prior to that decision, it had never been held in Arkansas that the testimony of a lawyer was incompetent or inadmissible merely because he or a member of his firm participated in the trial. See Hutchinson v. Phillips, 11 Ark. 270; Milan v. State, 24 Ark. 346; 97 C.J.S. Witnesses § 71, p. 456 et seq.; 58 Am. Jur. 110, Witnesses, 152, 153. Our reversal in the Rushlon case was not based solely upon a violation of Canon 19. The primary basis of the reversal of the case was the abuse of discretion by the trial court in permitting an attorney for one of the parties to testify even though lie had remained in the courtroom during the entire proceedings prior to his being called as a witness, in spite of the fact that, the witnesses had been excluded from the courtroom under Ark. Stat. Ann. § 28-702 (Repl. 1962) at the request of the opposing counsel. When Pickens was called as a witness in this case, appellant promptly objected. The objection was that bis testimony would be in violation of Canon 19 and, because he had represented the appellant in two other “items” of litigation, in violation of canon 6. The chancellor ruled that a blanket objection was not appropriate and overruled the objection. Although a substantial part of the testimony of Pickens was directed to matters pertaining to the attestation, custody and delivery of certain instruments, no further objection to any of his testimony was made by appellant until the conclusion of his testimony. After extensive cross-examination about the matters testified by him on direct examination, appellant’s attorney made the following motion: “If the Court please, the plaintiff renews her motion to strike the testimony because the witness obviously served as legal adviser to the plaintiff. Any information he has is privileged. ’ ’ Although privileged communications cannot be disclosed through the testimony of an attorney, the failure of the beneficiary of the privilege to object to the admissibility of the questioned testimony renders it competent. Maloney v. Maryland, Casualty Co., 113 Ark. 174, 167 S.W. 845. A motion to strike all of a witness’ testimony is properly denied where any of the testimony is admissible. Young v. Arkansas State Highway Commission, 242 Ark. 812, 415 S.W. 2d 575. The testimony of Pickens as to the attestation, custody and delivery of the bonds, the savings and loan certificate and the receipt of appellant was admissible under any view. ,Even if some part of the testimony of Pickens which appellant contends was in violation of the attorney-client privilege was inadmissible, the denial of the motion to strike all his testimony was proper. Furthermore, a motion to exclude testimony comes too late when it is made after cross-examination of the witness by the moving party without objection having been made when the particular testimony was offered. Ctherwise, one could speculate on eliciting favorable answers on cross-examination and then have the testimony excluded if they turned out to be unsatisfactory. Poinsett Lumber & Mfg. Co. v. Trawler, 138 Ark. 328, 175 S.W. 522. It should be noted that the motion to strike was in no way related to Canon 19. The court also properly overruled the blanket objection made by appellant before Pickens ever was asked a question. As above pointed out, the major portion of his testimon3 ' was admissible and he was a competent witness. Until the exact nature of the testimony to be elicited from Pickens could be ascertained, the court could not possibly know whether all or any part of it was inadmissible or, as a matter of fact, whether all or any part of it was actually in violation of either of the canons. AYc have not yet held that testimony by an attorney in violation of Canon 19 is, standing alone, a basis for holding the testimony inadmissible. Yet, we are not in any manner diluting the effect of the decision in the Rushton case or the caveat in the Taylor case. We did not, in either of these cases, and we do not now, hold that an attorney is incompetent as witness or his testimony inadmissible only because of a violation of Canon 19, although disciplinary procedures might be appropriate. Any doubts about the application of these canons should be resolved by a declination of employment by any member of a law firm when a partner or associate may become a witness or by withdrawal of the firm from the representation when it becomes apparent that the testimony of a member or associate on behalf of a client will become necessary. We recognize, however, that there will be cases in which the necessity for a lawyer testifying cannot- be anticipated until a stage of the trial at which his withdrawal, or that of his firm, would be impossible without serious injustice to his client. In such a ease withdrawal should not be expected, but it should be clear that the necessity for the lawyer’s testimony could not have been anticipated. II. Appellant relied entirely upon her own testimony to establish her contention that she was defrauded by her father. Even if we exclude the testimony of the attorney in the case and ignore contradictions, vacillations and equivocations in appellant’s testimony, so that it is given the strongest probative force, we cannot say that the finding of the chancellor was against the preponderance of the evidence. Appellant, now 26 years of age, had lived in Newport in her father’s home all her life until her maturity. Ilex- xuothex' died when appellant was boxur. She and her father were living’ at a motel owned by him and called Cherokee Courts when she became 18. This motel had 12 units, one of which was used for an office and three for home of the father and daughter. She stated that her father had a drinking habit and would become cruel when drinking. Because of this, she said that she was afraid of him. According to her, she went to Memphis just a few days after she was 18. Her father did not see her for about three weeks. She claimed that she then returned to Newport because her father wanted to talk to her about the “probate business” and about “getting the bond deal settled and coming home.” She talked with her father and returned to Memphis for another two weeks, after which she returned to Newport because her father called and said he wanted to talk to her. She said that, on the occasion of the second return to Newport, she talked with Mr. Pickens about the bonds at his office and asked him when everything would be settled. She only stayed one day, after which she returned to Memphis. She was in Newport, in October, at her father’s request. On this occasion she stated that her father loaned her around $3,000, partly in cash and the balance in checks her father said she could write. She also stated that she was in Newport in November, 1959. Sometime during that month, she married a man named Higginbotham, although her father did not approve. She denied having signed her name to request payment of the United States Savings Bonds or knowing the pex'son whose name is signed as a witness to her signature. She denied getting any of the proceeds of these bonds. She denied any knowledge of a bank account in the .First National Bank of Newport opened about the time of the closing of the guardianship and carried in the name of Carolyn Baleh Higginbotham, with the name Higginbotham having been added in pencil and with her correct addresses shown, on the ledger sheet. She did admit that her father told her that he had opened a bank account for her in the First National Bank but that- he did not tell her how to write checks. She signed checks using the name “Carolyn Baleh Higginbotham,” the exact designation of the account on the bank’s books. She claimed to have been unaware that any of the proceeds of five savings bonds went into that account but admits having written checks on the account for more iban $3,000 over a period of less than three months. She admitted that she used the money for her own purposes but claims that it was the money loaned her by her •father. The bank records show that this bank account was opened by the transfer of $530.08 on October 5 from the guardian’s account. Other items drawn on the latter account closed it on October 12. These items were court costs. The bank’s records show the deposit of $2,650.04 to her account on November 5 as the proceeds of the bonds. The date of redemption shown on the bonds is November 4. Mrs. Montgomery testified that she opened no account in that bank. Appellant also denied having received the proceeds of the savings and loan certificate. She denied the endorsement of her name thereon. She admitted having gone to the Newport Federal Savings and Loan Association in 1960 and having talked to one Don Smith and a Mr. "White while there. She stated that she was asking Don Smith about papers she had signed when they showed her a bond with her father’s name on it and opened up the books. She denied ever having seen the certificates issued in her name in lieu of the certificate held by the guardian. Mrs. Montgomery left Higginbotham in November of 1960 and came back to Newport to live with her father. She had bought a Chrysler Imperial, for which she paid cash in November 1959, wrecked it in December 1959, then bought a ’57 Buick traded it in on a ’57 Pontiac, paying for both, and bouaht a 1956 Ford or Chevrolet on November 16, 1960. She said that she used her own money in these purchases, except. for one occasion when the money was furnished by her father-in-law. 8he was not divorced from Higginbotham until July 1962. She lived with her father most of the intervening time. Mrs. Montgomery admitted that she wrote the Veterans’ Administration asking an investigation about the proceeds of the estate several years before her father’s death. Although she stated in a letter written to the same agency after her father’s death that she had dropped the matter on the advice of her father’s attorney, she testified that she dropped the claim because she was told to do so by her father. She sa3^s that she thought that her father would give her the money. She offered no other excuse for her clehiy in asserting the fraud she now claims. It is significant that on January 26, 1960, Mr. Balch executed a deed to the Cherokee Courts to appellant. On the same date, appellant admits having executed a mortgage on the property for $12,000. The mortgage contained a recitation that the debt was a part of the purchase money for the property. Both instruments were acknowledged before Donald E. Smith. The records of the Newport Federal Savings and Loan Association showed that Certificate No. 476 was issued to Balch as guardian of his daughter on November 28, 1951. The ledger sheet on that certificate showed that it was surrendered on November 1, 1959. These records further reflected that Certificate No. 1543 for the sum of $10,-000 was issued to Florence Carolyn Balch on November 1, 1959, and canceled on January 26,1960. On the same date Certificate No. 1622 was issued to L. Gr. Balch and canceled on July 1, 1960. On April 5, 1960, appellant deeded the Cherokee Courts property to E. L. and Maurice McCarty. The deed stated the assumption of the mortgage to L. O. Balch for $12,000 by the McOartys. On the same date, the McCartys conveyed certain property’' in Mississippi County, Arkansas, to appellant. This transaction was pursuant to a contract of March 5, 1960, between appellant and E. L. McCarty. This agreement provided for the conveyance of a theater, cafe and apartment building in Mississippi County to appellant and the payment by McCarty of a total of $11,000, of which $12,000 was to be by assumption of the Balch mortgage on the Cherokee Courts. The consideration for this agreement by McCarty was the conveyance of the Cherokee Courts property to McCarty. Appellant’s explanation of these transactions is that her father asked her and Higginbotham to take over the Cherokee Courts and operate them for him. She stated that he told her he would forgive their payment of the loan if she Avould do him this favor. She admitted having executed the instruments in January of 1960 before Don Smith at the Cherokee Courts, but said that she was ill, had been taking shots for pain, and had been asleep when Mr. Smith brought the papers to the Cherokee Courts. She stated that no one explained the papers to her and that she thought that they were simply for the purpose of her running the courts while her father was gone to aid her brother in a business in St. Louis. Although the bank account for this business was carried in the name of Cherokee Courts and checks drawn by appellant and her husband, her explanation was that her father told her to deposit money in the bank, draw on it for bills and for her living and to send him money when he called. She claimed that she did send him money in bills or by money order. She testified that, after payment of costs, her living expenses, and sending money to her father, there was no money left. She also claimed that the sale of the courts to McCarty and the purchase of the cafe and other properties in Mississippi County were made by her father. She admitted having called on McCarty, but said that she quoted no price or terms to him and told him that her father would contact him. Later, she said that her father called and told her to execute the papers for the transaction. Her father then asked her if she would run the cafe, as she had the motel, according to her version. Later she went to Mississippi with her husband, where they bought some real property. She said that she paid somewhere between one and two thousand dollars for this real estate, by use of her husband’s military allotment. She admitted on cross-examination that she received a cheek for $2,000 from McCarty for the cash payment in the transaction, but on redirect examination her memory of this payment was faulty. She said that she did go to Mississippi County and operate the cafe business but that her father sold it. Donald E. Smith testified that he went to the motel on January 26, 1960. He said that Mr. Balch gave him the deed, mortgage and certificate of deposit- and that he presented them to appellant. According to him, he handed her the savings and loan certificate and told her she was to endorse it and he was to witness it. The deed and mortgage had been prepared by Ben PI. White, an officer of the savings and loan association. It is obvious that all of the facts were well known to her o]' could have been ascertained many years before her father’s death. Long ago, this court held in Walker v. Norton, 199 Ark. 593, 135 S.W. 2d 315, that an accounting by a personal representative would not be ordered where the complainant was guilty of laches, especially where the difficulty of doing entire justice arises through the death of principal participants or of witnesses or lapse of time. Clearly this is a ease which calls for the invocation of this rule. Certainly this appellant was mature enough and far enough removed from the influences of her father during the six-year period that he lived after the closing of the guardianship to have asserted the fraud she now claims. During this period of time she had been married three times and on at least one occasion lived with her husband’s parents. It seems obvious to us that this action was motivated because her father was silenced by death. Under these circumstances we find that she was not entitled to any equitable relief. See George v. Serrett, 207 Ark. 568, 182 S.W. 2d 198. To grant her relief would require that Ave disregard tlie solemn orders of the probate court and every Avritten record involving transactions between appellant and her father. It would unduly extend this opinion to outline evidence not hereinabove mentioned. It is sufficient to say, however, that the preponderance of the evidence is against a finding of fraud in this case, even if we should disregard the defense of laches. The decree is affirmed. These were divorce suits by appellant against her first two husbands. Insofar as pertinent, this canon reads: “The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.”

Humphreys, J. This suit was brought by appellee against appellant and the Southern Ice Company, Inc., to recover damages in the sum of $1,200 for the breach of an alleged contract they made with him to furnish him with all the ice needed to supply his customers on his ice route out from Malvern with ice from July 30,1937, to the end of the season in November, 1937. Appellant filed a motion to require appellee to make his complaint more specific by stating whether the alleged contract was oral or in writing, the date and essential terms thereof, the price to be paid for ice and the trade territory, and also that he be required to state the basis of computation used by him to determine the amount of his damages. In response to this motion the appellee! filed an amendment to the complaint stating that the contract was entered into on February 1,1937, that it was an oral contract and that the price to be paid for the ice was 25 cents a hundred and the duration of the contract was until about-November 1, 1937. The court overruled that part of the motion asking that he state the basis he used in the computation made by him in arriving at the amount of his damages, over the-objection and exception of appellant. The appellant and his co-defendant filed separate answers to the complaint denying the material allegations thereim The cause was heard upon the pleadings and testimony, at the conclusion of which the Southern Ice Company, Inc., moved for an instructed verdict in its favor, which motion was granted and the Southern Ice Company, Inc., was discharged as a party defendant in the cause. Appellant also moved for a peremptory instruction in his favor which was denied, over his objection and exception. The cause was then submitted to the jury under oral instructions of the court which resulted in a verdict of $500 against appellant, from which is this appeal. Appellant contends for a reversal of the judgment upon the following grounds: First, the court erred in not instructing a verdict for defendant (appellant). Second, the court erred in failing to require the ap-pellee to make his complaint more definite and specific at appellant’s request. Third, the court erred in refusing to give to the jury as law of the case appellant’s offered instructions numbered 2, 4, 5, 7, and 8. (1) It is argued that the court should have instructed a verdict for appellant on the ground that the evidence was insufficient to show that a contract existed between him and appellee with reference to furnishing appellee ice during the' season beginning February 1, 1937, and ending about November 1, 1937.' It is said that appellee was so uncertain about the contract himself that he brought the suit against both the Southern Ice Company, Inc., and appellant instead of bringing it against appellant alone. It is true appellee testified that he' had been buying ice for a number of years from tbe Southern Ice Company’s distributing plants at Malvern and Arka-delphia which bad been managed during that time by Stanley Brooks. It is also true that he testified that he saw a Mr. Record who was the representative of the Southern Ice Company, Inc., in Little Rock and that Record told him to see Stanley Brooks about getting the ice. But as we read his evidence he finally stated that he had no direct contract with the Southern Ice Company, Inc., and that his contract was made with appellant, .Stanley Brooks. He testified, in substance, that he had been selling ice for ten or twelve years furnishing ice that- he had purchased from Brooks to'the territory around Mal-vern and Arkadelphia and had established a regular route for that purpose, but that he had had some financial troubles and did not have a truck when he. approached Brooks in February, 1937, to engage ice for the season; that he was unable to purchase a truck and so told Brooks and was advised by Brooks that it was going to be a good year and for him to go ahead and buy the truck and take ice from him during the season; that he followed his ad.vice and purchased a truck; that Brooks agreed to let him have all the ice he would need to furnish that territory at 25 cents a hundred; that he was furnishing everything himself and selling the ice he purchased at 60 cents a hundred and that he was selling at an average of six thousand pounds a day and making a gross profit out of it of $21 a day or a net profit of $15 a day; that in order to get some help for delivery in this territory he sold a portion of his territory to the Deere boys and while he did not get permission from Brooks to do so, Brooks acquiesced in it and let the Deere boys have ice on the same basis that he was furnishing it to him; that a Mr. Phillips established an ice factory at 'Sheridan and was encroaching at times upon appellee’s territory and at the suggestion of Mr. Brooks'he bought several loads of ice from Phillips; that Phillips and Brooks got into a dispute about the amount of ice he was to purchase from each which resulted in them coming to an agreement to refuse to sell ice to appellee to supply the territory from and after July 20, 1937; that when Brooks breached the contract with him he got a little ice from the Pine Bluff factory, hut it went out of business and Brooks put on trucks and furnished ice to the territory thereafter to the exclusion of appellee. Appellee introduced a witness by the name of Jack Naylor who was present when he made his contract with Brooks to furnish him ice for his territory in April, 1937, and heard Brooks advise him to get the truck and go ahead for the season of 1937. He also testified that he had worked on the route for about nine years and that appellee could have sold between five thousand and eight thousand pounds of ice a day from and after July 20, 1937. There was no dispute that appellee’got the truck in accordance with Brooks’ advice and that he actually operated in the territory from February until July 20, 1937, at which time Brooks refused to sell him ice from the Malvern or Arkadelphia plants and Phillips refused to sell him any ice after that time from the Sheridan plant. Appellant testified that he sold about six thousand pounds of ice each day after the ice season opened up and would have sold that amount from July 20, 1937, until about November, 1937, and would have made á net profit thereon of about $15 a day. He was corroborated in this testimony by Leon Naylor and his sons who assisted him in delivering ice in this territory. Mr. Brooks denied making any definite contract with appellee to furnish him all the ice he needed during the season beginning in February and ending in November and denied that he had entered into any collusion with Phillips not to sell appellee ice on and after July 20,1937, but admitted that they refused to sell him ice because appellee and Phillips could not get along and because he was under no obligation by contract to furnish appel-lee all the ice he might need for any definite time. We think there is ample evidence of a substantial nature in the record from which a jury might find that appellee did enter into a contract with appellant to furnish him the ice he might need to supply his patrons in the territory around about Malvern and Arkadelphia at a fixed price of 25 cents per hundred during the season beginning in February and ending in- November of 1937; and that appellant breached the contract to the damage of appellee in at least the sum of $500 if not more. We, therefore, think the verdict of the jury is supported by substantial evidence. (2) Appellant next contends for a reversal of the judgment because the trial court did not require appellee to set out in his complaint the method by which he arrived at the amount of the damages he. claimed. He did set out the date of the contract, the terms thereof, the expiration of the contract and the amount he was to pay for the ice, and we do not think on a motion to make more definite and certain it was necessary for him to set out the method by which he arrived at the amount of his damages. Under our civil procedure statutes it is required by § 1409 of Pope’s Digest, among other things, that a plaintiff shall- in ordinary and concise language, without repetition, state the facts constituting his cause of action. We think the complaint in this case substantially met that requirement and that the court did not commit error in refusing to require appellant to set out the particular method he used in figuring and setting out the figures in arriving at the amount of damages claimed by him. To do so would require him to plead his evidence. (3) At the conclusion of the testimony the court instructed the jury orally and after a careful reading of the instructions given by him we have concluded that the court correctly instructed the jury on the issues involved. Appellant requested a number of written instructions, but the applicable ones to the facts in the case were fully covered by the oral instructions of the court.' The court did not err in refusing to give the instructions numbered 2,4, 5, 7, and 8. No error appearing, the judgment is affirmed.

Ernie E. Wright, Chief Judge. This appeal was filed in the Arkansas Supreme Court and transferred to the Court of Appeals pursuant to Rule 29 (3). Shirley Dean George, a nominal appellee, was granted a decree of divorce in August, 1977 from Marvin George, who, along with his mother, Láveme Teas, are appellants from a decree rendered in December, 1978 cancelling a 99 year lease Marvin George had executed to Láveme Teas in August, 1976 for a recited rental consideration of $10.00 per year, plus payment of taxes. Appellants contend the trial court erred in cancelling the lease. The decree from which the appeal stems was pursuant to an intervention filed by Nathan E. Gentry and wife and by the trustees of the First Baptist Church of Mayflower, Arkansas, the respective purchasers of the two separate parcels of land sold at public auction as ordered in the divorce decree for the purpose of accomplishing the allocation of Mrs. George’s statutory property rights upon divorce. At the commissioner’s sale Mr. and Mrs. Gentry purchased the 10.3 acre tract of land and the trustees for the church, hereinafter referred to as “the church”, purchased the 3 2/3rds acre tract of land. Each of the two intervenors paid the respective purchase prices in full, the court confirmed the sale and the commissioner’s deeds were issued to the respective purchasers. Mrs. George received from the clerk of the court her portion of the net proceeds awarded to her by the order of distribution dated November 22, 1977 and there was no appeal from that order. The appellants have not accepted any of the funds arising from the sale and have refused to recognize the sale or surrender possession of the property to the purchasers. The purchasers filed interventions herein against Mr. George, made Mrs. Teas a third party defendant and sought cancellation of the lease as a cloud upon their titles. Mr. George and his mother, Mrs. Teas, contend the lands were not subject to sale because of the 99 year lease Mr. George executed to his mother in August, 1976. The complaint of the intervenors alleged the lease was a fraudulent conveyance and a sham and should be decreed null and void. It is true, the law does not preclude a husband from conveying in good faith, in absence of fraud, his interest in non-homestead real estate without the wife joining in the conveyance. However, where the wife does not join in the conveyance the grantee of such conveyance or lease takes title burdened with the dower interest of the wife. Box v. Dudeck, 265 Ark. 165, 578 S.W. 2d 567 (1979). Chancery cases are tried de novo on appeal and if the decision is correct for any reason, we affirm. Apple v. Cooper, 263 Ark. 467, 565 S.W. 2d 436 (1978). Following are some of the facts in evidence supporting the decree cancelling the lease: (1) When Mr. George executed the 99 year lease to his mother in August, 1976, his wife did not join in the lease and had no knowledge of the transaction. (2) The lease called for a consideration of only $10.00 per year for both tracts of land, plus pyament of taxes, and was signed by Mrs. Teas as lessee at the instance of her son. (3) Prior to the execution of the lease in August, 1976 Mr. George had filed suit for divorce in June, 1976 and stated in the complaint there was no property to be settled. There had previously been one or more divorce actions filed by one of the parties against the other. Mrs. Teas was aware of the marital difficulties between the parties. (4) The divorce was granted to Mrs. George pursuant to her complaint filed in May, 1977. She had no knowledge of the lease until after the court had ordered the land sold. (5) The lease, although having a notary’s signature and seal affixed and placed of record, was not acknowledged. (6) The 3 2/3rds acre tract which had two rent houses and a mobile home thereon was the marital homestead of the parties. One of the houses rented for $45.00 per month and the other rented for $35.00 per month. Mr. and Mrs. George resided in the mobile home. (7) The two tracts sold for a total sum of $12,550.00 at the commissioner’s sale. (8) Mr. George continued to look after the property and was living on the 3 2/3rds acre tract at the time of the trial of the interventions. He pays no rent to Mrs. Teas. Mrs. Teas does not reside upon either tract. (9) Mrs. Teas in response to a question as to who has charge of the land testified, “I guess I have, if that lease is any good”. She also testified she told Mr. Harris, one of the church trustees, after the commissioner’s sale and conveyance, that all her son “had was that little bit of property and I was going to stand by him as long as I live and could stand by him”. (10) Mr. Harris, a trustee of the church, testified that after he obtained the commissioner’s deed for the church and later learned about the lease he talked to Mrs. Teas and she told him she was keeping the land for her son, Marvin. (11) The intervenors purchased the property at public auction for substantial considerations, without actual or constructive notice of the lease, and paid the purchase monies in full. Under the facts and circumstances in this case the decree cancelling the lease was warranted. It is clear the purchasers did not have actual knowledge of the lease and they were also not charged with constructive notice. Ark. Stat. Ann. § 49-201 sets out the requirements of an acknowledgment of an instrument for the conveyance of an interest in land and Ark. Stat. Ann. § 49-211 requires an acknowledgment before an instrument can be admitted to record. Moore v. Ollson, 105 Ark. 241, 150 S.W. 1028 (1912) held that a mortgage that was notarized and recorded but not acknowledged was not enforceable against a subsequent grantee of the property. The court quoted with approval a prior case, holding “an unrecorded mortgage, however honestly made, is wholly invalid against. . . . subsequent purchasers, who take with full knowledge that they are defeating another’s lien and who intended to do so”. Ark. Stat. Ann. § 68-1301 provides that a conveyance in trust to the use of the person making the conveyance is void against existing creditors and subsequent purchasers. In the case of Hardy v. Hardy, 228 Ark. 991, 311 S.W. 2d 761 (1958), the husband executed transfers of stocks and mortgaged certain personal property to his mother after his wife had filed suit for divorce. The husband’s mother was then made a party to the suit and cancellation of the transfers were sought. The court on appeal held the transfers to the mother were for the purpose of defeating the wife’s property rights and quoted with approval from the case of Oles Envelope Corporation v. Oles, 193 Md. 79, 65 Atl. 2d 899, as follows: A conveyance made by a husband before and in anticipation of his wife’s suit for alimony, or pending such suit, or after a decree has been entered therein in the wife’s favor, to prevent her from obtaining alimony, is fraudulent and may be set aside, unless the grantee took in good faith, without notice and for value. The grantee’s knowledge of or participation in the fraud of the grantor must be gathered from the various facts composing the transactions and all the surrounding circumstances. . . . In Renn v. Renn, 207 Ark. 147, 179 S.W. 2d 657 (1944), the husband contemplating a divorce suit by his wife permitted his land to sell for taxes. His brother bought the land from the state and the husband continued in possession. On divorce being granted the court ordered the land sold by commissioner with one-third of the proceeds to be paid to the wife. The brother holding the deed from the state sought to enjoin the commissioner’s sale. The wife countered the brother’s claim contending the forfeiture of the land for taxes and the state deed to the brother was a subterfuge and fraud to defeat her of her dower, that the brother acted as an agent for the husband in getting the state deed, and that the husband was the real owner of the land and the brother a mere trustee. The court dismissed the complaint of the brother. In upholding the chancellor the court said equity would pierce the sham of a fraudulent conveyance even though Mrs. Renn was a subsequent creditor rather than an existing creditor. The court said: That this whole scheme was in the contemplation of Adolph Renn when he allowed the land to forfeit for taxes, may be reasonably inferred from the testimony of G. A. Renn that the husband and wife had been having marital difficulties for ten years and divorce suits had been filed and dismissed. The Court also stated: A conveyance made by the husband in anticipation of the wife’s libel for divorce, and to prevent her from recovering alimony is fraudulent and may be set aside unless the purchaser took without notice and for value. .. . To invalidate a conveyance of the husband’s property, the grantee ordinarily must have had actual or constructive notice that the conveyance was for the purpose of defeating the wife’s claim to alimony. In Rush v. Smith, 239 Ark. 706, 394 S.W. 2d 613 (1965) involving a suit to set aside as a fraudulent transaction the transfer of assets to the husband’s sister, the court said: We think it almost too plain for argument that the supposed sale was in fact a sham that did not divest Paul Rush either of his ownership of the stock or of his control of it. A husband’s colorable disposition of assets to defeat his wife’s property rights in a pending or anticipated divorce suit may be found to be fraudulent. ... It cannot be doubted that Paul Rush’s ostensible sale to his sister was intended to hinder Virginia Rush in the assertion of her property rights. While the chancellor merely held the lease to be void in the present case because the wife did not join in the execution of the lease, there is ample evidence in the record warranting the chancellor in inferring from the evidence that the lessee, Mrs. Teas, who entered into the lease for a nominal consideration, had knowledge that her son’s purpose in executing the lease to her was to prevent his wife from realizing her statutory interest out of the land upon divorce. This being true, we affirm the decree, although not on the ground articulated by the chancellor. In Moose v. Gregory, 267 Ark. 86, 590 S.W. 2d 662 (1979), the Supreme Court stated the settled rule to be that on appeal a trial judge’s decision will not be reversed if he reached the right result. There is another reason for affirming the decree cancel-ling the lease to the 3 2/3rds acre tract of land. The undisputed evidence shows that it was the homestead of the parties. Mrs. George did not join in the execution of the lease. The land was not within an incorporated town or city and therefore the entire tract was the homestead regardless of value. The lease was void and subject to cancellation under the provision of Ark. Stat. Ann. § 50-415 which provides: No conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same. The appellees as grantees under the commissioner’s deeds acquired all of the rights and interests of Mr. and Mrs. George, and under the circumstances here have standing to seek cancellation of the lease. Affirmed.

Ernie E. Wright, Chief Judge. This appeal of a Workers’ Compensation case to the Arkansas Supreme Court has been assigned to the Court of Appeals pursuant to Rule 29(3). The administrative law judge found that Howard Lybrand, appellant, did not sustain an injury arising out of and in the course of the employment with the appellee. The full Commission and the circuit court agreed. The records show appellant, age 64, had worked for respondent for 36 years. He had driven a truck, a dozer and a front-end loader. Prior to the incident out of which the claim arose, he was hospitalized in October, 1976 under the care of Dr. J. William Nuckolls at Pine Bluff with abdominal complaints. Exploratory surgery was done on November 4, 1976 and a small aneurism of the aorta was found and repaired. He was hospitalized twice before for ulcers and on one of the occasions he hemorrhaged. His right eye had previously been removed because of cancer. After surgery Dr. Nuckolls on December 20, 1976 wrote a memo that appellant should not return to work before February 1, 1977. Appellant returned to work on February 1, 1977 and on February 14, 1977, while operating a font-end loader moving logs the right front wheel dropped into a little hole, and the steering wheel jerked his arm. He experienced pain in his neck and in the back of his head. He told his foreman he had hurt his shoulder and neck and would have to go to the doctor. He went to Dr. Carter in Sheridan who made arrangements for him to be hospitalized at Pine Bluff that same day under the care of Dr. Nuckolls, the internal medical specialist who had previously cared for appellant. His complaint as shown by the hospital admission report was weakness in his left side which developed while at work that morning. No mention was made of any injury in the admission report. He had mild hypertension at the time of admission. Dr. Nuckolls called on Dr. P. B. Simpson, Jr. for consultation and after observation of the patient and from tests results available Dr. Simpson and Dr. Nuckolls agreed appellant probably had a small stroke involving his right middle cerebral artery. He was put to bed and given medication to decrease swelling in his head caused by the brain damage and was discharged March 2, 1977. The final diagnosis by Dr. Nuckolls was right middle cerebral arterial occulsion affecting his left side and hypertension. Dr. Nuckolls testified in a deposition that he thought appellant probably suffered a stroke at his work on February 14, 1977, but doubted it was causally related to his employment and in his opinion it is highly unlikely driving a font-end loader which hit holes and jarred would be severe enough to bring about a stroke. He stated if a person gets a “fairly severe blow” to the head or neck that ruptures a blood vessel going to the head a cerebrovascular accident could develop. There was no evidence that appellant received a blow to his head or neck. Dr. Nuckolls testified in his opinion appellant likely would have experienced the stroke when he did wherever he had been and whatever he might have been doing. Appellant was later hospitalized on March 11,1977 under the care of Dr. Herbert R. Wineland. This was the first time Dr. Wineland saw appellant. He could find no evidence of back or neck injury of the type that could cause a cerebral vascular incident in his opinion. He stated that trauma cannot be the underlying cause of cerebral thrombosis, that the most trauma can do is perhaps aggravate such a condition, and that it is extremely difficult to identify trauma as even an aggravating cause. He stated he would not disagree if Dr. Nuckolls who saw appellant immediately after the February incident expressed the opinion claimant likely would have suffered the stroke whether he had been at work or at home. There was a complete absence of any medical expression of opinion that there was a causal relationship between any occurrence at work and the stroke for which appellant was hospitalized and treated. The burden of proof was on appellant to establish that he suffered disabling injury arising out of his employment. The decision of the Commission found that the burden had not been met, and on appeal this court only determines whether there is substantial evidence to support the finding of the Commission. We find that there was in fact substantial evidence to support the Commission’s finding. Ruby Turner v. Lambert Construction Company, et al, 258 Ark. 333, 524 SW 2d 465. The appellant urges six points for reversal which will hereafter be separately discussed. I Appellant contends the case should be reversed because allegedly the Commission made no findings of fact and there was no substantial evidence to support the decision. In affirming the decision of the administrative law judge, after reviewing the entire record, the Commission in effect adopted the findings and conclusions of the administrative law judge. The Commission’s action made the findings and conclusions of the administrative law judge also the findings and conclusions of the Commission. The Commission’s opinion concluded the preponderance of the evidence showed the cerebral vascular condition did not arise out of and in the course of the employment. There is no merit to the contention that there is no substantial evidence to support the decision of the Commission. On the contrary, there is substantial medical evidence to support the finding that appellant failed to establish he sustained a compensable injury arising out of his employment, and there was a lack of medical evidence establishing a causal connection between appellant’s stroke and his employment. Allied Telephone Co. v. Rhodes, 248 Ark. 677, 454 S.W. 2d 93. II Appellant contends the circuit court erred in failing to make any findings of fact in simply affirming what appellant refers to as the administrative law judge’s opinion. The judgment of the circuit court affirmed the decision of the full Commission. The fact that the judgment of the circuit court was likewise in accord with the decision of the administrative law judge is of no consequence. We find no error in the actions of the court. Ill Appellant argues that all “doubtful” cases should be resolved in favor of the claimant. This principle cannot be extended to satisfy the requirement of proof that a claimant has suffered a compensable disabling injury arising out of his employment. Liberality in the application of the Workers’ Compensation Act does not extend to allowance of claims absent proof of one of the essential elements. Causation is one of the essential elements. Ark. Stat. Ann. § 81-1302 (d) (Repl. 1976). None of the medical evidence offerred in this case ex presses an opinion that appellant’s stroke was caused by anything that happened during the course of his work. On the contrary, the medical evidence tended to rule out a causal relationship between the accident described by appellant and the stroke. The cause of a stroke, which is the occlusion of a blood vessel in the brain, is a type of medical problem susceptible of determination only by expert medical opinion, as opposed to some type of injury, such as a broken leg, that can be observed by the average lay person. IV Appellant contends the circuit court erred in refusing to reverse the Commission and that apparently the court thought it did not have the authority to reverse the Commission. We hold there was substantial evidence to sustain the decision of the Commission and it was the duty of the Court to affirm. Ark. Stat. Ann. § 81-1325(b) (Repl. 1957). In the case of Allied Telephone Co., et al v. Leo Rhodes, claimant sought compensation alleging injury of two vertebrae while moving heavy equipment. There was opinion evidence by a chiropractor indicating two vertebrae had been fractured. Dr. Robert Watson, who later examined claimant and performed surgery for his problem, testified the lifting incident described by claimant was not a precipitating factor in his final problem, but was a coincidental factor, and that incident to the surgery he was able to actually see the content of the bone and determine it was diseased bone rather than fractured. He found no evidence of a crack or healing crack in the vertebrae involved. The Commission had denied the claim and the circuit court reversed and allowed the claim. On appeal the Supreme Court held there was substantial evidence to support the Commission’s findings, reversed the judgment of the circuit court and ordered reinstatement of the order of the Commis-sion denying compensation. The court pointed out it was not proper for the circuit court to weigh the testimony but only to determine whether there was substantial evidence to support the findings of the Commission. V Appellant contends the court erred in affirming the Commission because the Commission failed to make any detailed findings. We have pointed out above the action of the Commission in affirming the decision of the administrative law judge had the effect of making the findings of the administrative law judge the findings of the Commission. It is clear in the Commission’s opinion that the Commission concluded the evidence failed to establish the necessary causation connecting appellant’s cerebral vascular incident with his work. Mere coincidence is not to be equated with causation. Clark v. Peabody Testing Service, 256 Ark. 489, 579 SW 2d 360 (1979). VI Appellant contends the Commission acted without or in excess of its powers and that it has the power only to decide cases in accord with court decisions. We do not find the decision of the Commission to be in conflict with Supreme Court decisions. It was the duty of the Commission to determine the issue of causation and there is substantial evidence to support the decision that causation was not established. The judgment of the circuit court is affirmed. Howard, J., dissents.

J. Fred Jones, Justice. This appeal arises from the re-trial of Walton and Fuller v. State, 245 Ark. 84, 421 S.W. 2d 462, which was reversed by this court on September 9, 1968, and remanded to the Boone County Circuit Court for a new trial. The facts set out in that case are the same as those in the ease at bar and are reiterated briefly as follows: Law enforcement officers from Missouri, accompanied by local officers, made searches of certain premises in and near Harrison in Boone County, Arkansas, and seized numerous items of personal property which had been stolen in Missouri. The principal items involved consisted of men’s suits and television sets, and the items were seized under search warrants obtained in Boone County. The warrants described the premises to be searched and specifically described the property searched for. During the search of the premises, the appellant. Walton directed the officers to his living quarters and pointed out to them a color television and a record player which were not designated objects of the search, but which were later determined to be stolen property and seized under voluntary relinquishment bv Walton.' In the first trial all of the stolen property seized was admitted in evidence. The appellants were found guilty by the jury and sentenced by the court to four years in the penitentiary. On appeal, this court held that the warrants were defective under which the searches were conducted and that the trial court erred in admitting into evidence the objects seized thereunder. The case was reversed and remanded for a now trial. At the second trial, from whence comes this appeal, the appellants were again found guilty and sentenced on the jury verdict to ten years in the penitentiary. On this appeal from their second conviction, the appellants rely on the following points: “1. The court erred in denying defendants’ motions to suppress all evidence, statements, and other matters obtained as the result of illegal searches and seizures and their motions to suppress evidence under the doctrine of the ‘fruit of the poisonous tree.’ 2. The court erred in denying defendants’ motion to suppress defendants’ statements and in permitting testimony and evidence concerning the statements to be introduced into evidence. 3. The court erred in accepting the verdict of the jury and sentencing the defendants to a longer term in the Arkansas Department of Corrections than is permissible under law. 4. The court erred in admitting into evidence the Zenith television set and Zenith record player, ihe possession of which the defendants were charged and in failing to direct a verdict of acquittal of the appellant at the close of the evidence in the case.” Appellants’ first and fourth points have already been decided adversely to their contention in Walton and Fuller v. State, supra, and our decision there becomes the law of this case as to the admissibility of evidence as to the television set and the record player which defendant “voluntarily” pointed out to the officers at the time of the second search. In that case we held this evidence to be admissible regardless of the fact that the voluntary disclosure was made at a time when the search was be ing conducted under tlio authority of the defective warrant. On this point we said: “ . . .Walton, in the presence of Fuller, voluntarily advised Sheriff Hickman of Boone County and Sgt. Rife that there was a quantity of other property besides the television sets for which the search was being conducted, and that he wanted to «bow them where it was. He told them that he had certain suits of clothing and the television set and record player upstairs in his living quarters .. . Under these circumstances, the property found in the Walton living quarters and his statements about them ivere not come about through exploitation of an illegal search... For the reasons above set out, the television set and record player were admissible in evidence.” (Emphasis supplied.) Appellants’ second point is likewise without merit for the same reason. In Walton and Filler v. State, supra, this issue was resolved in the discussion of the evidence which was to be excluded as a result of the invalid search, wherein we said: “... [identification of property which was inadmissible should have been excluded by the trial court as ‘fruit of the poisonous tree,’... Furthermore, statements by both Walton and Fuller made in the prosecuting attorney’s office, except for those portions relating particularly to property not listed in the second search warrant about which Walton volunteered information, were inadmissible as ‘fruit of the poisonous tree.’ ” Appellants argue that the statements made to the prosecuting attorney were inadmissible since appellants did not waive their constitutional rights under the holding of Miranda v. Arizona, 384 U.S. 448. This point also was decided adversely to appellants’ contention in Walton and Fuller v. State, supra, when we said: “Although objection was made to the statements made in the prosecuting attorney’s office as being inadmissible under the rule announced in Miranda v. State of Arizona, 384 U.S. 448, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), we find adequate evidence to support the trial judge’s finding that the warnings required by that rule were given, and that the statements were voluntary and made under waiver of the rights enumerated in the above case. Neither Walton nor Fuller was in custody at that time on any charge. Before interrogation, both were advised of their rights as to the giving of statements. There is nothing to indicate that either was not intelligent enough to understand the statement of his rights. Nor does it appear that either was not conscious that he was waiving them in answering questions. Walton actually signed a 'written waiver, on which his constitutional privilege against self-incrimination and right to counsel are clearly and fully listed. There is no indication that this was not a free and voluntary act on his part. While Fuller did not sign the waiver, there is testimony that an identical statement of his rights was read to and by him before any interrogation, after which he expressed his willingness to answer questions. It was only after the interrogation was virtually concluded that he was asked to sign a written waiver of these rights, and he then stated that he wanted a lawyer ‘if it got down to where he had to sign something.’ In addition to the warnings at the time of the interrogation of Walton and Fuller in the prosecuting attorney’s office, the evidence that both were advised of these rights at the time of the search is convincing.” As to their third point for reversal, appellants raise the issue of double jeopardy and argue that the trial court erred, in accepting tire verdict of the jury sentencing tire defendants to a longer term tlian they had received at the first trial of the case. Arkansas Statutes Annotated § 41-3938 (Repl. 1964) is as follows: “Any person who shall possess stolen goods, money or chattels which exceed the aggregate value of thirty-five ($35.00), knowing them to be stolen, with intent to deprive the true owner thereof, shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one (1) year nor more than twenty-one (21) years; and if the aggregate value thereof be not more than thirty-five ($35.00) dollars, such person shall be guilty of a misdemeanor and shall be punished by imprisonment in the county prison or municipal or city jail not more than one [1] year and shall be fined not less than ten dollars ($10.00) nor more than three hundred dollars ($300.00).” This issue of former jeopardy was discussed rather thoroughly in the very recent decision of this court rendered on April 1, 1969, in the case of Stout v. State, 246 Ark. 479, 438 S.W. 2d 698. There was no “implied acquittal” of the appellants by the reversal of their first conviction in the case at bar and different degrees of the offense were not involved as was the situation in Green v. United States, 355 U.S. 184, cited in Stout v. State, supra. In the Green case the accused was first convicted of second degree murder and the court held that he could not be re-tried for first degree murder, having been impliedly acquitted of that degree of the crime. When an accused is tried on a specific degree of crime and is convicted of a lesser degree, which is included in the greater degree, he is thereby acquitted of the greater degree and cannot be tried again for the greater degree. This has been the law in Arkansas for nearly one hundred years. Johnson v. State, 29 Ark. 31. We now hold, as we have here to fore indicated, that the same rule applies where the difference in the nature of the punishment is the difference between life imprisonment and death. Sneed v. State, 159 Ark. 65, 255 S.W. 895. In the Sneed case the accused was first sentenced to life imprisonment and upon a new trial following reversal he was again sentenced to life imprisonment. Sneed was tried both times for the same degree of homicide, first degree murder, and this court approved an instruction at the second trial advising the jury that if Sneed was again found guilty of first degree murder, he could only be sentenced to life imprisonment and could not be sentenced to death. We perceive that this rule was based, not on the degree' of the crime or the degree of punishment, but upon the difference in the nature of the punishment provided by statute for first degree murder, life imprisonment or death by electrocution. In the case at bar the appellants were tried and convicted twice for the possession of stolen goods which exceeded the aggregate value of $35.00. Some of the items of stolen goods offered in evidence at the first trial were .inadmissible and appellants were granted a new trial at their own request. At the second trial, before a new and different jury, only the admissible portion of the stolen goods was offered in evidence and this jury was not as lenient in fixing punishment as the trial court was in the first trial. The punishment fixed by the jury at the second trial was of the same nature as that fixed by the judge in the first trial and was well within the maximum fixed by statute. Had the appellants served time under the first sentence, they would have been entitled to credit on the second sentence for lime served on the first, Stout v. State, supra. The appellants rely on the case of Patton v. State of North Carolina, 381 F. 2d 636. The defendant in that case had served five years of a twenty year sentence imposed by the trial judge on a plea of nolo contendere. The eon vie Li on was overturned on constitutional grounds under state post-conviction procedure, and at the second trial the defendant was sentenced by the trial judge to twenty-five years with credit allowed for the five years served and leaving twenty years yet to be served. The Fourth Circuit Court of Appeals held that the defendant had not waived the benefits of his initial sentence, “because of the restrictive effect this has on access to post-conviction remedies.” The case at bar reaches us .by direct appeal and not through post-conviction relief procedure, so we fail to see where the 14th Amendment to the constitution is involved in this case at all. Juries in this state are closely examined on voir dire before they are accepted for service in a given case. While no one would deny that the jury system does not insure perfect justice in every case, no better system for doing so has yet been devised. We think, the better rule to be, that where a defendant appeals from a conviction and is successful in obtaining a new trial, he must accept the hazards as well as the benefits of a new trial and assume the risk of a more severe sentence of the same nature at the hands of a new and different jury, when the second vérdict is within the same degree and the punishment is within the statutory maximum fixed for the degree. The appellants were not “put in jeopardy of life or limb” at all in this case under any reasonable interpretation of Amendment 5 of the constitution, nor have the appellants been deprived of “life, liberty, or property, without due process of law” under any reasonable interpretation of Amendment 14. We prefer to weigh appellants’ rights by the plain and simple language of the constitution rather than attempting to measure the constitution by what we perceive appellants’ rights should be. We are unwilling to say to the appellants “you are entitled to a new trial because some of the evidence at your first trial was inadmissible. If your second trial results in less punishment or acquittal, that is well and good, and your constitutional rights to a speedy and public trial by an impartial jury under Amendment G to the constitution have been met and fully complied with. But if your second trial results in a greater penalty than the first even though the punishment is of the same nature and well within the statutory limitation for the offense charged, that part of your new trial violates your constitutional rights and will not be permitted to stand. ’ ’ We are unable to derive such procedure from the constitution and we are unwilling to road such procedure into the constitution. We hold that under the law of Arkansas a new trial granted in a criminal case for error committed in the first trial constitutes a new trial as to penalty imposed by the verdict, as well as to guilt or innocence where the verdict in the second trial is for the same degree of crime as the first verdict, and the penalty assessed by the second verdict is of the same nature and within the statutory limitations for the degree of the crime involved. The judgment of the trial court is affirmed.

HumphReys, J. This is an appeal from a judgment rendered against appellants in favor of appellee in the circuit court of Crawford county for injuries received to two head of his stock while attempting to cross a bridge designated as No. 14 on appellants’ main line of railroad at and in Greenwood Junction in Sequoyah county, Oklahoma. It was alleged in the complaint that appellants constructed fences at the junction so as to create a pocket into which stock might wander without any opening for them to get out except to cross bridge No. 14 which had no floor upon which animals might walk except boards on one side for the use of its employees or other persons who might cross same. It was particularly alleged that no stock guards were erected at the entrance of the pocket to keep stock from walking into it, and that shortly after the mare and mule belonging* to appellee entered this pocket a northbound train of appellants pulled into Greenwood Junction, and frightened the stock and caused them to run into the north end of the pocket and that in attempting to cross the bridge, they fell into it, and the mare broke her left hind leg, and the mule skinned and sprained its legs. The main defenses interposed were that the location of the bridge involved and referred to in the complaint was within the yard limits and station grounds at Greenwood Junction, Oklahoma, and for that reason the right- of-way fencing statutes of the state of Oklahoma did not apply to the case, since, under said law appellants were not required to fence said grounds and yards; and the denial that after the stock were discovered in the alleged pocket, a northbound train of appellants frightened the stock and caused them to run to the north end of said pocket and attempt to cross the bridge. After the evidence was introduced appellants requested a directed verdict in their favor which was refused by the court, appellants’ theory being that under the undisputed evidence no liability was shown, and that the judgment should be reversed, and the cause dismissed. The accident happened on the night of the 16th of October, 1937, after the animals had entered upon the right-of-way of appellants through an opening in the fence complained of. They had gotten out of a pasture owned by appellee, and had wandered about a mile and a half from his home along a public road running across appellants’ main line, and .just before they were injuréd-were trespassing upon appellants’ right-of-way. The injury occurred in the state of Oklahoma, and the Oklahoma law governs as to any liability on the part of appellants. Section 11966 of the Oklahoma Statutes of 1931 provides: “It shall be the duty of every person or corporation owning or operating any railroad in the state of' Oklahoma to fence its road except at public highways and station grounds with a good lawful fence.” It will be observed that in the state of Oklahoma a corporation owning or operating a railroad therein is required to fence its road except at public highways and station grounds. .In construing the statute it was said in the case of A. T. & S. F. Ry. Co. v. Huston, 111 Okla. 274, 239 Pac. 472, that: “When animals come upon a railway track at a place not required by law to be fenced, such as station grounds, the whole duty of the railway company is to use ordinary care and diligence to avoid injuring them after discovering their peril. ’ ’ And in the case of Davis v. Wyskup, 97 Okla. 239, 223 Pac. 357, it is said: “It is a well-settled rule that the only duty resting upon a railroad company is to use ordinary care to prevent injury to trespassing animals, after the discovery of their presence and position of danger. ’ ’ Under the aforesaid section of the statute and the construction placed upon it by the Supreme Court of Oklahoma, there could be no liability to appellee by appellants, unless appellants failed to use ordinary care to prevent injuring the animals after they were discovered in a perilous position. There is no lookout statute in Oklahoma, and no statute raising a presumption of negligence from the mere fact that it killed trespassing animals in the operation of its trains. Since appellee’s animals were trespassing upon appellants’ right-of-way at a place where appellants were not required to fence against them, we must look to the record to see whether after discovering the animals in a perilous position they used ordinary care to prevent, injuring them. The record does not reflect the time of day or night the mare and mule entered upon the right-of-way of appellants, no one having seen them until they were seen by the engineer, M. C. Miller, who testified, in substance, as follows: He was on the engine on the night of October 16, 1937, when a mare and mule got on bridge or culvert No. 14, at or in Greenwood Junction in Oklahoma which was not very far from the depot. He first stopped his engine near the depot, and he and the crew remained at that point ten or fifteen minutes without moving the engine. At that time they did not see the mare and mule, nor did he see them until he got back in the cab and started to move it at which time he observed them near the bridge or culvert on the left side of the track walking upon the . track and onto the bridge through which the mare fell. The mare walked the length of the bridge before she fell, and the mule walked to the opposite end, and when the mare did not get up the mule turned and went 'back. He then moved the engine up close to the bridge so that he and the crew could have light to take the mare out of the bridge. We think the reasonable inference deducible from the engineer’s testimony is that after he discovered the animals approaching the bridge, and practically upon it he did not continue to move the engine, but after the mare fell through the bridge he moved the engine up close to it so that the crew might have light to get her out. The culvert or bridge was only a short distance from the depot where the engine had been standing. After starting the engine and discovering the animals, the only thing the engineer could do to prevent injuring them was to wait and see whether they would succeed in crossing the bridge without falling through. During the interval the mule did succeed in walking across the bridge and returning without falling through, but the mare was not so fortunate. She fell through and broke a leg. Had the engineer blown the whistle or sounded the bell or continued to move the train the noise would likely have frightened the animals, and cause them to run across instead of walk across the bridge. Of course, running across the bridge would have enhanced their perilous position. We think in the exercise of ordinary care to prevent injuring the animals the engineer did the practical and reasonable thing to wait and see whether the animals would safely clear the bridge. Certainly, after the mare failed to do so and got caught in the bridge, the sensible thing for the engineer to do was to move the engine up closer to the bridge to light it up so the crew might get the mare out and off of same. On account of the error in not instructing a verdict for appellant, the judgment is reversed, and the cause is dismissed.

John A. Fogelman, Justice. Appellant J. L. Chaviers, the operator of Chaviers Insurance Agency, Inc., an insurance agency in Pine Bluff, Arkansas, was found guilty of eight counts of theft of property and sentenced to two years and a fine of $1,000 on each count with the sentences to run consecutively. He asserts four points for reversal. They are: I THE TRIAL COURT COMMITTED ERROR IN REFUSING TO GRANT APPELLANT’S MOTION FOR A MISTRIAL. II THE EVIDENCE BEING WHOLLY INSUFFICIENT, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO GRANT APPELLANT’S MOTION FOR A DIRECTED VERDICT FOR APPELLANT ON COUNT 1, COUNT 2, COUNT 4, COUNT 5, COUNT 6, COUNT 7, COUNT 8 AND COUNT 9. III THE TRIAL COURT COMMITTED ERROR IN REFUSING TO GRANT APPELLANT’S MOTION TO SET ASIDE THE VERDICT OF THE JURY ON COUNT 7 AND COUNT 8. IV THE SENTENCE PRONOUNCED BY THE COURT WAS EXCESSIVE AND CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHTS. We find no merit in points I and IV. We do find merit in Point III and in that portion of Point II relating to Counts 7 and 8 of the nine counts in the information on which Chaviers was tried. We affirm the judgment of the trial court as to Counts 1, 2, 4,5, 6 and 9 of that information. Chaviers was acquitted on Count 3. The judgment is reversed as to Counts 7 and 8. I Appellant moved the court to declare a mistrial because of conversations between witnesses under sequestration and a spectator who was interested in the trial. Mr. Patrick Lee, an employee of Southwestern Insurance Group, a group of companies represented by the Chaviers Agency, was present at the trial. Some of the charges against Chaviers were based upon contentions that he had accepted and taken control of premiums paid to him for the issuance or renewal of policies by Southwestern Insurance Company, without having obtained the policies or renewals or without remitting the premiums for them to the company. Robert Malcomb, the underwriting manager for the Southwestern Insurance Group, was a witness for the state. James A. Fecho, a branch manager with Transamerica Insurance Company, was also a witness called by the state. Appellant’s motion for a mistrial was made after Fecho had testified, but before Malcomb’s testimony was given. Appellant’s wife testified at the hearing on the motion. She said that each time a witness had left the stand, all of the witnesses, who were sitting together, had discussions and looked and pointed and apparently discussed what had been said in the courtroom. She said that she did not hear what Lee said to Malcomb or any other witness to whom he had talked, but that they all stood in front of Lee and appeared to be giving information as to their testimony. At that time, an independent insurance agent had testified as to practices of insurance companies in billing agencies and an insurance salesman for another insurance company had testified about placing liability insurance coverage for one of the complaining witnesses with the Chaviers agency. In addition to these witnesses, Mary E. Johnson, Ray Heaslip and Bobby Davis, who were complaining witnesses, had testified. Sandra Masters, appellant’s daughter, testified that she had been sworn as a witness and had seen Lee going in and coming out of the courtroom and had seen him talking to some man and others who were witnesses. She did not know what Lee was saying or what kind of conversation was going on. She had been sitting with Mrs. Chaviers. Lee testified that his major purpose in being present was to visit with Malcomb, and that he had lunch with Malcomb and Fecho. He said that he had not discussed the case with the state’s witnesses. Mrs. Taylor, one of the complaining witnesses, testified that she had spoken with some of the witnesses when they left the courtroom after testifying, but not about the case nor about their testimony or anything that took place in the courtroom and that she did not hear anything about the testimony. Doris Weaver, a complaining witness, said she had spoken to some of the witnesses who had testified and that she had asked one of the insurance agents what had happened and had been told that it was only routine. Jimmy Ragsdale, a complaining witness, said that the witnesses who were sitting in the hall had engaged in general conversations, but that he did not know who had testified and who had not. He had observed that some of the witnesses, after they had testified and left the courtroom, had spoken with the other witnesses, but he did not hear the conversations. Malcomb testified that some of the witnesses who had testified had talked with witnesses who had not, but that he had not talked with any witnesses who had testified. He said that he had talked to Lee about what had happened between Chaviers and their company, but not about what went on in the trial. He said that he did talk about the facts of the case as he knew them. Malcomb recalled that Lee had told him about testimony that had been given in the courtroom in regard to a question about the difference between an account current agent and a direct bill agent. After hearing this testimony, the trial judge stated that there had been no request to sequester the witnesses or to give a cautionary instruction to them, but that he had probably erred in failing to request that the witnesses not discuss the case or visit with each other during the course of the trial. In denying the motion for mistrial, the circuit judge remarked that granting a motion for mistrial was pretty drastic action and that, from what he had heard, he doubted that any harm to either side had really been done. We have many times said that declaring a mistrial is an extreme and drastic remedy which should be resorted to only when there has been an error so prejudicial that justice could not be served by continuing the trial. Holmes v. State, 262 Ark. 683, 561 S.W. 2d 56; Limber v. State, 264 Ark. 479, 572 S.W. 2d 402; Wilson v. State, 261 Ark. 820, 552 S.W. 2d 223; Shackleford v. State, 261 Ark. 721, 551 S.W. 2d 205; Foots v. State, 258 Ark. 507, 528 S.W. 2d 135. The granting or denial of a motion for mistrial lies within the sound discretion of the trial judge and the exercise of that discretion should not be disturbed on appeal unless an abuse of that discretion is shown. Parrott v. State, 246 Ark. 672, 439 S.W. 2d 924; Jackson v. State, 245 Ark. 331, 432 S.W. 2d 876. The facts revealed here do not afford any basis for our saying that the trial judge abused his discretion in denying this motion for mistrial. See Hutcherson v. State, 262 Ark. 535, 558 S.W. 2d 156. II In each count of which he was convicted, Chaviers was charged with having committed the crime of theft of property by unlawfully and knowingly taking unauthorized control of property of another in excess of $ 100. Each count named the alleged victim. They were: Count 1, Mary J. Ragsdale; Count 2, Eugene Morgan; Count 4, Doris Weaver; Count 5, Anthony D. Johnson; Count 6, Arthur Lee Bradley; Count 7, Transamerica Insurance Group; Count 8, Mrs. Jack Taylor; and Count 9, Bobby Davis. The statute under which Chaviers was charged, Ark. Stat. Ann. § 41-2203 (Repl. 1977), provides that one commits theft of property if he knowingly takes or exercises unauthorized control over the property of another with the purpose of depriving the owner thereof. Under that section there is a wrongful appropriation when the actor either takes or exercises unauthorized control over the property of another. The term “exercises unauthorized control” is directed at the bailee who lawfully takes control of the property, but subsequently appropriates it to his own use. But the term must be read in conjunction with the clause ‘ ‘purpose of depriving the owner thereof.” A deviation from the terms of bailment is theft only if done with the requisite purpose to deprive the bailor. See Commentary, § 41-2203. The word “property” includes any paper or document that represents or embodies anything of value. “Deprive,” in the statute, according to Ark. Stat. Ann. § 41-2201 (4) (a) and (c) means: (a) to withhold property or to cause it to be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner; or (c) to dispose of property or use it or transfer any interest in it under circumstances that make its restoration unlikely. The offenses were alleged to have occurred during the years 1975, 1976 and 1977. There seems to be no doubt that Chaviers or employees of his agency took control of checks tendered for payment of premiums on insurance policies to be issued or renewed. The question is whether Chaviers purposely withheld or used these payments in a manner that their use or benefit was appropriated to Chaviers’ benefit or lost to the owner. One acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Stat. Ann. § 41-203 (1) (Repl. 1977). Thus, the purpose required is not significantly different from the previous requirement of specific intent in cases of larceny and embezzlement. See Gilcoat v. State, 155 Ark. 455, 244 S.W. 723; Mason v. State, 32 Ark. 238; Heath v. State, 207 Ark. 425, 181 S.W. 2d 231; State v. Guthrie, 176 Ark. 1041, 5 S.W. 2d 306. By the nature of things, one’s intent or purpose, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances shown in evidence. Smith v. State, 264 Ark. 874, 575 S.W. 2d 677; Shell v. State, 184 Ark. 248, 42 S.W. 2d 19. We have uniformly held that intent might be inferred from the circumstances connected with the transaction in larceny and embezzlement cases. Mason v. State, supra; Bond v. State, 230 Ark. 962, 328 S.W. 2d 369; Collins v. State, 184 Ark. 20, 41 S.W. 2d 781; State v. Guthrie, supra. We have also held that the criminal intent to embezzle may be inferred from the act of wrongful conversion of a fund. Heath v. State, supra; Smith v. State, 219 Ark. 829, 245 S.W. 2d 226; Gurley v. State, 157 Ark. 413, 248 S.W. 902. There is no sound reason why the kind of evidence or quantum of proof required to show “a conscious object” should be different from that required to show specific intent. In pointing put the pertinent testimony on the question of sufficiency of the evidence, we will view the evidence in the light most favorable to the state, considering only that testimony that lends support to the jury verdict and disregarding any conflicting testimony which could have been rejected by the jury on the basis of credibility. Chaviers had operated the agency until his license was revoked in August or September, 1976. All moneys paid to the agency were deposited in a bank account which was totally depleted on August 9, 1977. After the license was revoked, Chaviers, in February, 1977, began to bid on demolition contracts in Little Rock. Thereafter, he spent not more than one or two hours per day in the insurance office and devoted considerable time to the demolition business, leaving the handling of matters pertaining to his insurance business to his wife and daughter, who had been employed in the agency since 1973. They were paid salaries throughout their employment. The new business was so unsuccessful that Chaviers discontinued it in July, 1977, after having suffered a loss of approximately $6,000. Chaviers testified that he utilized the agency bank account to pay expenses of his demolition business. J. L. Stone worked with Chaviers occasionally and Chaviers compensated Stone by giving him the premium for the first year on any policy solicited by Stone. Among the insurance companies represented by the Chaviers agency were: Southwestern Insurance Company, Cavalier Insurance Company, New Hampshire Insurance Company, and Transamerica Insurance Group. Southwestern Insurance Company terminated the Chaviers agency by letter dated January 24, 1977. An officer of Southwestern wrote Chaviers on March 12, 1977, advising him that his attempts to renew policies of the company would not be carried through and returned seven renéwal requests with that letter. Chaviers acknowledged that his authority to act, even on renewals, was then terminated. It is possible that Chaviers had an agreement with the company to renew policies that terminated in February, 1977. On renewals, this company’s billing procedures were such that a lapse of two or three months between the company’s receipt of a request for renewal and a statement calling for payment of the renewal premium was not unusual. Chaviers’ agency for New Hampshire Insurance Company was terminated in October, 1975. Chaviers’ agency for Transamerica extended from August, 1973, until April 26, 1976. He had no authority to write new business after July 26, 1976 or renewals after July 26, 1977. His contract with that company was terminated May 15, 1977. The agency received a letter from the insurance commissioner around July 1, 1977, but, having had her “fill” of this official, Mrs. Chaviers put the unopened letter in a desk drawer where it remained unopened until November, 1977, after Chaviers had been arrested on the original charge contained in the information filed against him, i.e., the Ragsdale transaction. When the letter was opened, complaints of Mrs. Weaver and Mrs. Ragsdale about the handling of their transactions were attached. The evidence on all counts followed a similar pattern, particularly those in Counts 1, 2, 4, 6 and 9. In each case, a customer of the agency issued a check to the Chaviers agency for an insurance policy or a renewal of an existing policy. All seem to have been automobile insurance. The checks were dated on various dates between January 27, 1977 and March 12, 1977. The proceeds of the checks went into the agency bank account. Receipts for the premium payments were issued by the Chaviers agency, but the policies were not renewed. These customers learned that the policies had not been renewed. Some of them learned they had no coverage after claims had arisen. None of them received a refund of the money paid for the insurance premium, although all except Mrs. Ragsdale and Mrs. Weaver had sought a refund. Eugene Morgan (Count 2) talked with Mrs. Chaviers after a claim had arisen prior to the date he gave the check for renewal and was told by her that he would be advised as soon as the agency heard from the company. Finally, on June 15, 1977, he learned by inquiry of Southwestern Insurance Company that his policy had not been renewed and had expired in February, 1977. When his automobile was repaired in July or August, 1977, Chaviers advised Morgan that $200 was deductible under the policy. Morgan checked the policy and found that only $100 was deductible. Nothing was ever said to Morgan by anyone connected with the Chaviers agency about the non-renewal of the policy. Chaviers admitted that Morgan was entitled to a refund of $176, but sought to excuse the failure to make it by saying that the agency had not received any notice of rejection of the request for renewal mailed by him to the company on March 9, 1977 (three days before the date of Morgan’s check). He said that no remittance had been made to the company because the agency was never billed for the premium. Doris Weaver (Count 4) received a notice from Southwestern Insurance Company, two weeks after she had given her check to the Chaviers agency, that her policy had been cancelled for non-payment of premium. When she inquired of Chaviers, he told her that “it was shuffled up in paper work,” that she was insured and that she should not worry. When she had a collision in June, 1977, approximately four months after she had paid the renewal premium, Chaviers promised to send in an accident report showing her coverage, but apparently did not. About two weeks later, after she had been involved in another collision, Chaviers told her that she had nothing to worry about, but did not tell her that she had no coverage. She also made a later payment for another renewal. Her request for a refund in June, 1977, was postponed by Chaviers because of unavailability of his records. When Arthur Lee Bradley (Count 6) had not received a policy two weeks after he had given his check on March 3, 1977, a secretary in the agency office told him the policy would be mailed. About two months later, he called the agency office and was told that it had “folded.” The insurance company had nothing in its records pertaining to Arthur Bradley or any payment from Chaviers on Bradley’s account, and its underwriting manager said that Chaviers had no authority on the date the agency took Bradley’s check to send in a premium for a policy for Bradley. Payments made by Bobby Davis (Count 9) in January and February, 1977, were for renewal of a Transamerica policy which had expired on December 19, 1976. On December 20, 1976, there had been a theft of some items from the Davis car. Chaviers told Davis to send an estimate, but that there might be some difficulty because the policy had terminated. After Davis had been in an accident following his premium payments, he learned that his policy had been cancelled for non-payment. He had received no notice that his policy would not be renewed. Chaviers testified that the agency records showed that a refund check had been mailed to Davis, but admitted that there was no cancelled check on the agency account for this refund. The transaction involved in Count 5 was slightly different. Mary E. (Mrs. Anthony D.) Johnson applied to Stone for farm liability insurance to be procured through the Chaviers agency on June 7,1975, and gave Stone a check for $160. Stone cashed the check and paid Chaviers for the policy in cash, for which a receipt was issued. The money was deposited in the agency bank account. Stone did not receive any refund of this premium and did not receive a letter dated July 26, 1975 from Chaviers enclosing a check for a refund of the premium. It is admitted that no refund check ever cleared the Chaviers agency bank account. On June 16, 1975, Chaviers assured Mrs. Johnson that the Johnsons were covered by insurance. On August 6,1975, he told her he had mailed the policy to them. The Johnsons never received a policy or a refund. The branch manager of New Hampshire Insurance Company, on which the Johnson policy was to have been written, said that sometime in September, 1975 , before Chaviers’ agency for that company was terminated in October, 1975, he had spoken with Chaviers about the Johnson policy and that Chaviers had stated that he had received no money from Stone for that policy and he had so advised the Johnsons, but mentioned no refund to Stone. Chaviers made no offer to refund the premium to the Johnsons until May 20, 1976, when a hearing was being held by the insurance commission on a complaint against Chaviers. Appellant says that the evidence is wholly circumstantial, so it must exclude every other reasonable hypothesis other than his guilt. He enumerates several circumstances upon which he relies as being consistent only with innocence as to his intent and purpose. They are: his authority to accept and process renewals for Southwestern Insurance Company up through March 24, 1977 and for Transamerica through May 15, 1977; his lack of personal knowledge of the erroneous receipt of premium payments on the Ragsdale and Taylor accounts; the billing system of these two companies, which permitted a lapse of two or three months between initial submission of a policy renewal and request for payment by the agency; the fact that an agent was justified, in the absence of notice from a company of refusal to renew or issue a policy, in assuming acceptance by the company and anticipating subsequent billing; acceptance of renewals from the Chaviers agency which were billed as late as May, 1977; aborted attempts of Chaviers to sell his agency between March, 1977 and June, 1977 and the transfer of files and records to prospective purchasers on two occasions; the absence of Chaviers from his agency office between Feb ruary, 1977, and July, 1977, except for one to two hours per day; inability of Chaviers to recover files and records after May 26,1977; the chaotic and turbulent state of his business during the period in which most of the questioned premium payments were made; Mrs. Chaviers’ description of appellant as being emotionally disturbed, distraught and subject to physical ailments during the period from February to August, 1977; the fact that 80 checks of policyholders for a total of approximately $6,000 were issued and 60 premium refunds totalling $10,000 were made up until August 9, 1977, when the agency account funds were exhausted; the failure of Ragsdale, Morgan, Bradley and Heaslip to communicate their complaints to appellant; the fact that Chaviers knew of only one charge at the time of his arrest in October, 1977, and the subsequent addition of the other counts one year after his arrest and 11 days before trial; appellant’s candid acknowledgement that refunds were due prosecuting witnesses, even though he could only rely upon his agency records; the fact that agency records indicated that refunds had been made in the Weaver, Heaslip, Taylor and Davis accounts and that the Weaver, Heaslip and Taylor checks were never deposited to the agency account. We do not agree with appellant that the evidence was only sufficient to arouse suspicion and the jury was left only to speculation and conjecture in arriving at its verdict, except as to Counts 7 and 8. We certainly disagree with appellant’s statement that there was a failure of proof tending to show that appellant converted any insurance payments to his own use, in view of the fact that there was evidence that he paid expenses of his demolition business from the agency bank account, and that this account was depleted before refunds could be made in some instances. Where circumstantial evidence does more than arouse suspicion, and is properly connected, and, viewing the evidence in the light most favorable to the state, the jury is not left to speculation and conjecture alone in arriving at its conclusion, it is basically a question for the jury to determine whether the evidence excludes every other reasonable hypothesis. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904. This is such a case, and the jury’s verdict is conclusive on this question. We conclude, however, that the trial judge should have granted appellant’s motion to set aside the verdict as to Counts 7 and 8. There is no evidence that either the Heaslip or Taylor checks ever went into the agency account. There was positive testimony that the Heaslip check had not. There was testimony that the Heaslip check had been voided and returned to Heaslip by letter, even though Heaslip denied having received it. Mrs. T ay lor felt sure that her check had been charged to her account but did not have any cancelled check or any record to support her statement. Chaviers testified that, had she produced her cancelled check, a refund would have been made. Mrs. Chaviers testified that she had noted on the copy of the receipt issued to Mrs. Taylor that the check in question had been returned. She had been unable to find any file on this account. In June, July or August, 1977, Transamerica refunded the Heaslip payment without ever soliciting any explanation from Chaviers or his agency. The evidence that the Taylor check had been cashed was far from satisfactory. Appellant exhibited photographic copies of both the Heaslip and Taylor checks with the word “void’ ’ written thereon with his post-trial motion to set aside the verdict. He alleged that these copies of the checks had been found in the books and records of the agency in the state of Alabama, where they had been stored, and were received by him three days after the trial. We do not see how the jury could have done more than engage in speculation as to appellant’s purpose in regard to these transactions if this evidence had been before it. For this reason, we feel that the trial court should have set aside the verdict of these two counts. The motion to set aside the verdict must be viewed as a motion for a new trial. It incorporated an attack on the sufficiency of the evidence to support the verdict and newly discovered evidence. It might easily be said that there was no abuse of discretion in denial of this motion, were it not for the fact that the Heaslip and Taylor accounts were among eight counts added to the information in this case just 11 days prior to trial. The evidence that Chaviers was living at Boaz, Alabama, and that his wife was working as a nurse there was undisputed. In the peculiar circumstances of this case, we find no lack of diligence and feel that the motion should have been granted as to these two counts. This means only that appellant is entitled to a new trial on these counts, because we cannot say that, without the new evidence as to the checks of Heaslip and Taylor, the evidence would have been insufficient to present a question for the jury. With that evidence before it, the jury could have only speculated as to two equally plausible conclusions as to Chaviers’ purpose in these transactions, unless the state was able to rebut this new evidence. Appellant contends that his sentence of 16 years’ imprisonment and $8,000 in fines is so patently severe, when related to the facts and circumstances brought out at trial, that it should be regarded as cruel and unusual and constitutionally impermissible. Of course, that sentence may be reduced because of the reversals on two counts. Appellant contends that the punishment is cruel and unusual because it is so disproportionate to the nature of the offense as to shock the moral sense of the community. Appellant’s convictions on six counts of theft of property still stand. The jury found that six different people had lost property through theft by Chaviers. None of these offenses involved more than $2,500, but each involved more than$100. Thus, they were Class Cfelonies. Ark. Stat. Ann. § 41-2203 (2) (b) (i) (Repl. 1977). The minimum punishment on each offense was two years. Ark. Stat. Ann. § 41-901 (1) (c) (Repl. 1977). A fine of as much as $10,000 could have been imposed on each count. Ark. Stat. Ann. § 41-803 (3) (c) (Repl. 1977). An argument that the minimum prison sentence permissible under the applicable statute is cruel and unusual is rather strange. No punishment prescribed by statute is cruel and unusual unless it is barbarous, or unknown to the law, or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Carter v. State, 255 Ark. 225, 500 S.W. 2d 368. We cannot say that the sentence in this case was cruel and unusual under this test. The judgment is affirmed as to Counts 1,2,4, 5,6 and 9. As to Counts 7 and 8, the judgment is reversed and the cause remanded for a new trial. We agree. George Rose Smith and Holt and Hickman, JJ. We treat this matter as if the witnesses had been excluded from the courtroom without any request having been made by either party and without any admonition having been given by the circuit judge. Although the record is not clear on this point, appellant states in his brief that the witnesses involved in the alleged conversations had been excluded under the rule. Mrs. Chaviers testified that she saw the spectator in question coming out of the courtroom and coversing with witnesses who were sitting outside. She must have been outside the courtroom herself in order to observe any such conversations. It seems highly improbable that she would have been in a position to observe unless she had been excluded from the courtroom.

Conley Byrd, Justice. Appellant Edward Leon Teas was charged by two felony informations filed on February 16, 1978, with the sale of two pills of morphine on December 14, 1977, and the sale of marijuana for $20 on December 5,1977. Over objections of appellant the trial court joined the two in-formations for trial. The jury assessed the maximum sentence and fine on both charges and the trial court ordered the sentences run consecutively. For reversal appellant raises the issues hereinafter discussed. POINT I. With respect to severance of offenses, Criminal Procedure Rule 22.2 provides “ (a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the, defendant shall have a right to a severance of the offenses.” The proof on the part of the State shows only that sometime in 1973, Steve Hicks had sold drugs for appellant. After Hicks was arrested in November 1977, on a drug charge, he became a confidential informer for the State. In that capacity he went to the home of appellant on December 5, 1977 and asked for heroin. Appellant had no heroin but offered to sell Hicks some marijuana which Hicks bought. In connection with Hicks’ capacity as a confidential informer he tried five or six times to again contact appellant but was unable to do so. On December 14, Hicks went by appellant’s home and upon being informed that appellant was visiting one Steve Hall, Hicks went to Hall’s residence where he again asked to purchase some heroin. Appellant stated that he did not have any heroin but had some morphine. He sold Hicks the two morphine pills for $60.00. The only connection we can find between the two sales is the fact that both were made to Steve Hicks. This showing alone is insufficient to connect the two sales by a single scheme or plan within the meaning of Criminal Rule 22.2 supra. It follows that the trial court erred in joining the two offenses for purpose of trial. POINT II. Over objections of appellant the trial court permitted the State to put in proof of previous sales by appellant. To sustain the action of the trial court the State suggests that the evidence was admissible to show a single scheme or plan and that appellant by cross-examining the witness with reference to the other alleged sales is estopped to allege error. We find no merit to either contention. See Moser v. State, 266 Ark. 200, 583 S.W. 2d 15 (1979). POINT III. The trial court after listening to the testimony of Billy L. Satterfield, Ollie Wilborg, Edward Teas, Jerry Roberts and Harold Helton overruled appellant’s motion to suppress the confessions. After a review of the record we find that the trial court’s finding of voluntariness is contrary to a totality of the evidence. Billy Satterfield was called about 11:00 p.m. the day appellant was arrested. He was advised by Jerry Roberts and Ollie Wilborg that appellant had not made any statements at that time. The next day Satterfield had a conversation with appellant in the presence of Officer Wilborg. He states that it was his understanding that appellant could be of value to.the officers as an informer and that there was a mutual understanding reached that if appellant assisted the police, the police would in turn cooperate with appellant in the matter of reducing appellant’s bond and making recommendations to the prosecutor and to the court for leniency and possibly even dismissal of the cases. Officer Wilborg admits that appellant’s helping the officers was discussed but that he told appellant and his lawyer, Billy Satterfield that anything appellant did would be told to the prosecuting attorney. However, he says he did not make any promises to appellant. Wilborg also told appellant and Satterfield that the Judge sets the bond, but that he would talk to Jerry Roberts about appellant helping the officers. Officer Helton also testified that before appellant made any statements he stated he wanted to talk to his lawyer before he answered any questions. Appellant Teas denies that he made any statements until after the discussion with Wilborg when Satterfield told him to tell it like it was. For a confession to be free and voluntary, it must be given without hope of reward or fear of punishment. Payne v. State of Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed 2d 975 (1958). Here we cannot say that the confession was not obtained without hope of reward. It follows that the trial court erred in not suppressing the confession: POINT IV. We find no merit to appellant’s contention that the imposition of the maximum punishment and fine permitted by statute constitutes cruel and unusual punishment, Dyas v. State, 269 Ark. 303, 539 S.W.2d 251 (1976). Reversed and remanded for proceedings not inconsistent herewith. Harris, C. J., Fogleman and Hickman, JJ., concur in part and dissent in part.

Frank Holt, Justice. The appellants were jointly charged by information with the crime of first degree murder wliilc in perpetration of robbery. Upon a joint trial, a jury found each guilty and death sentences were assessed. Upon appeal numerous assignments of error are made by each appellant for reversal. Appellant Mosby’s present counsel was appointed midway in the trial to assist in his defense. ■ This occurred when there arose a conflict of interests between the appellants. Both were then being represented by the same lawyer. Appellant Williamson’s appellate counsel did not participate in the trial. The victim of the alleged crime was Ronald E. Lovelace, a taxicab driver for the Yellow Cab Company of Little Rock, Arkansas. He disappeared on the night of June 3, 1968. On June 10th his body was discovered about two miles from the location of his abandoned cab which he had been driving the night of his disappearance. The investigation of the crime resulted in the apprehension, trial and conviction of the appellants. In a capital case wm are required to consider every objection made during the trial. Ark. Stat. Ann. § 43-2723 (Repl. 1964); Harris v. State, 238 Ark. 780, 384 S.W. 2d 4.77 (1964); Hays v. State, 230 Ark. 731, 324 S.W. 2d 520 (1959). One of appellants’ objections relates to the giving of an instruction with, reference to the fact that neither of the two accused appellants took the witness stand during the joint trial. The court gave the familiar or somewhat standard instruction that: “A defendant may or may not testify in a case at his own discretion. The fact that a defendant did not testify is not evidence of his guilt or innocence and in fact is no evidence at all and is not to be considered by you in arriving at your verdict.” In the recent case of Russell v. State, 240 Ark. 97, 398 S.W. 2d 213 (1966), we reversed a conviction where a similar procedure occurred. There we said: “ * * * When the accused asks that such a charge be given if is reversible error for the court to deny tlie request. Cox v. State, 173 Ark. 1115, 295 S.W. 29 (1927). When, however, the accused objects to such an instruction, a different situation is presented. Our decisions on the point have not been entirely harmonious. We held in Watson v. State, 159 Ark. 628, 252 S.W. 582 (1923), that the giving of the instruction was prejudicial error, but we took the opposite view in Thompson v. State, 205 Ark. 1040, 172 S.W. 2d 234 (1943). Upon reconsidering the question we have concluded that the instruction ought not to be given against the wishes of the defendant. If the accused is to have the unfettered right to testify or not to testify he should have a correlative right to say whether or not his silence should be singled out for the jury’s attention.” Therefore, we must hold that in the circumstances the giving of this instruction, to which appellants objected, constituted prejudicial error. The appellants further urge for reversal that it was prejudicial error to admit in evidence appellants’ admissions in which each made statements and accusations against the other. According to their admissions, which were related to the jury, each appellant admitted being-present and participating in the robbery of Lovelace. The jury was told, however, that each confessor denied the murder and accused the other of actually' killing Lovelace following the robbery. The state argues that this variance of cross-implication is permissible because the distinction between an accessory and principal has been abolished and the accessory is equally as guilty of a crime as is his principal. Ark. Stat. Ann. § 41-118 (Repl. 1964); Lauderdale v. State, 233 Ark. 96, 343 S.W. 2d 422 (1961). Therefore, the state contends that since both the appellants confessed their complicity1- in the robbery-murder and the only difference in the two confessions being that one accused the other of the actual stabbing, no prejudicial error resulted from the introduction of their .confessions implicating each other. The trial court carefully instructed the jury that the admission of one . declarant could. not be considered as evidence against his codefendant. The state cites and relies upon People v. De Vine, 293 N.Y.S. 2d 691, 57 Misc. 2d 862 (1968). There the harmless error doctrine was applied. In view of a retrial, we deem it necessary to call attention to the recent cases of Britton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) and Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100. (1968). It now appears that the use of the cross- - implicating confessions in the case at bar is not permissible in a joint trial because of being in violation of the confrontation clause of the federal Sixth Amendment. The answer-to- the problem seems to be to delete any offending portions of the admissions with reference to a codefendant, if such deletion- is feasible and can be done without prejudice, or to grant separate trials. See dis- ■ senting' opinion of Mi1. Justice White in Bruton, supra. In Arkansas a separate trial, if requested, is mandatory in capital cases. Ark. Stat. Ann. § 43-1802 (Repl. 1964). Therefore, upon a retrial this problem of cross-implieat:-ing confessions would not arise if a separate trial is requested. The appellants- separately argue other points for reversal.' Since we do-not consider that-they are likely to occur on a retrial, we deem it unnecessary to discuss them. K-eversed and remanded. Bybd, J., not participating.

Mehaffy, J. On April 30, 1938, Bella Duty filed a complaint in the. Benton circuit court against the appellant, Metropolitan Life Insurance Company. Service was had on the insurance commissioner, and the appellant, after receiving the summons, communicated with Daily & Woods on May 6, 1938. Appellant directed Daily & Woods to appear and protect the company’s interests, and if necessary, to employ associate counsel to assist. The letter to Daily & Woods further stated that after they had had an opportunity to communicate with plaintiff’s attorney, to advise them as to the number of the policy involved, name of the insured, and nature of the action. When Daily & Woods received this letter, they, wrote to Mr. Fred Allred, clerk of the Benton circuit court, requesting that -he send a copy of the complaint and inquired about the time the court would meet with jury in the future. The letter to the clerk stated: “Also please notify us the date of the convening of the next jury term of your circuit court. ’ ’ They did not make a request to know when court would meet except to ask when it would meet with a jury. The clerk, on May 10, 1938, wrote to Daily & Woods as-follows: “No date set for court with jury. If you will write me later, maybe I will know. ’ ’ On May 31, 1938, judgment by default was entered against the appellant. On May 31, 1938, counsel for the Metropolitan Life Insurance 'Company forwarded to the clerk of the Benton circuit court by mail, the answer of the Metropolitan Life Insurance Company together with a check for $2.50 as a deposit for costs. This answer was received by the clerk of the Benton circuit court on June 1,1938, and was filed on that day. The clerk immediately wrote attorneys, for the appellant that he had filed the answer, hut that judgment was rendered against the Metropolitan Life Insurance Company in circuit court on May 31, 1938, in the amount of $3,000 and costs, and the clerk returned to the attorneys their check. After the default judgment, Daily & Woods employed Mr. Jeff Rice, an attorney at Bentonville, who examined the records to ascertain when court adjourned and what the record showed. Thereafter, on June 17, 1938, the Metropolitan Life Insurance Company filed suit in the Benton circuit court against Relia Duty to set aside and vacate the default judgment rendered on May 31, 1938. The suit was based on § 8248 of Pope’s Digest, which is as follows: “The proceedings to vacate or modify the judgment or order on the grounds mentioned in the fourth, fifth, sixth, seventh and eighth subdivisions of § 8246 shall bo by complaint, verified by affidavit, setting forth the judgment or order, the grounds tó vacate or modify it, and the defense to the action, if the party applying was defendant. On the complaint, a summons shall issue and be served, and other proceedings had as in an action by proceedings at law.” The appellant, in its suit against Relia Duty, prayed that the default judgment be vacated, set aside and held for naught. The appellant, in its complaint, set up the facts above stated and alleged that it had a valid and meritorious defense to the action and suit brought by Relia Duty against it. Appellant sets out in its complaint what it alleges the meritorious defense is. On September 19, 1938, the appellee, Relia Duty, filed answer to the complaint of appellant denying each and every material allegation contained in the complaint, and asked that the complaint be dismissed, and that she recover costs. On October 17, 1938, the court found that the appellant had no grounds for setting aside the judgment, and dismissed appellant’s complaint. Appellant was given ten days to file a motion for new trial. Motion for new trial was filed within the time allowed by the conrt, which motion was overruled. Appeal to this conrt was granted, and ninety days granted in which to prepare and file hill of exceptions. The bill of exceptions was filed and the case is here on appeal. Mr. John S. Daily, a member of the firm of Daily & Woods, testified that they received notice of the pen-dency of this suit by letter from the home office dated May 6, 1938; there was enclosed a copy of the summons and the general counsel of the home office wrote Daily & Woods to appear and protect the company’s interests, and if necessary' employ associate counsel; the letter asked for certain information and when the letter was received by Daily & Woods witness wrote Fred Allred, clerk of the Benton circuit court requesting information about the time court would meet and asked specifically when court would meet with á jury; the clerk, on May 10th, wrote Daily & Woods that there was no date set for conrt with jury, but if they would write him later ho would probably know. Witness further testified that the complaint was signed by Vol T. Lindsey as the sole attorney for plaintiff; witness was in Fayetteville on the 17th, 18th or 19th of May, does not recall which day: had planned to go on to Bentonville on that trip and confer with Mr. Lindsey, the attorney for Bella Duty; his business in coming to see him was to explain that he had not received the file from the company and was not prepared to file an intelligent answer; witness wanted to secure an agreement to defer the filing of an answer until he had full information; he learned while at Fayette-ville that Mr. Lindsey was ill and had left or was leaving immediately for the Mayo Clinic, and for that reason he did not go on to Bentonville; he later learned that Mi. Lindsey would not be back for several weeks; on May 28 he received the file from the New York office, and the following day mailed answer together with costs deposit to Mr. Allred, the clerk; the letter was mailed May 31st and returned to him with a note stating that the answer had been received, but that judgment had been entered the day before; this letter'was not received at the office of Daily & Woods until June 2. As. soon as witness received the letter from the. clerk he called him by long distance telephone and asked him why he had not notified him that court would meet on May 31st, 'and the clerk stated that he did not know it or he would have notified him; witness then called Mr. Jeff Rice, attorney inBen-tonville, requesting that he investigate the matter,.and then went to Bentonville and conferred with Mr. Lindsey; sought his consent to set aside the default judgment, and explained to him what had occurred; Mr. Lindsey refused to agree to set the judgment aside and thereupon complaint was filed in this case. He did not give witness any notice of any kind that court would be held on May 31st; first notice they had was on June 1st that a default judgment had been entered on the previous day; he wrote the insurance company on the 11th enclosing copy of complaint, and the next time he heard from the company was the 28th or 29th of May; when asked if there was anything unusual about the suit, he answered that there was; that this claim was in connection with a policy upon which a death benefit had previously been paid, and the claim and file had been closed almost a year previously, and the papers and records would not be in the active files of the company; he understood that answer was required to be filed by noon of the first day court is in regular or adjourned session, twenty days after service had; does not know that he told the company this; wrote them on the 11th sending a copy of the complaint and asked the company to send file immediately so answer could be filed before service matured. The answer filed was a general denial and was forwarded on May 31st; this answer did not have any allegations in it,, except a general denial; got the impression from Mr. All-red’s reply to his letter that he was speaking about when court would be back; did not write the clerk any more and made no further inquiry untii the letter of June 2nd was received; the reason he did not was that he did not have full information with reference to the claim, and was in no position to file an answer; he knew the plaintiff’s attorney was ill and out of the-state, and did not know that any other attorneys would appear in the case and ask for default judgment; this is the first time he has ever had any connection where the opposing side has sought a default judgment without giving advance notice; he was in Fayetteville on the week of the 16th; was informed that Mr. Lindsey was ill and had gone or was leaving for Mayo’s Clinic; he does not know who told him, hut there was a group of persons and one of them told him; called Mr. Nice on June 2nd; did not call Lindsey’s office in Fayetteville because he had no reason to question the correctness of his information; was authorized.'by the company to employ local counsel and did not call local counsel and ask him to look out for the day of adjourned court; there was no reason to prevent him from filing an answer between May 10th and May 21st; he could have prepared a general denial. The following letters were introduced in evidence: “May 6, 1938. “In Re: Relia Duty v. Metropolitan “(HDG-1537Í) “Daily & Woods, Esquires “Attorneys at Law “Merchants National Bank Building “Fort Smith, Arkansas “Gentlemen: “We enclose herewith summons in the above entitled action served upon the Insurance 'Commissioner of Little Rock, Arkansas, on May 2,1938. Please appear and protect our interests. If necessary, we suggest that you employ associate counsel to assist you in this matter. “After you have had an opportunity to communicate with plaintiff’s attorney, we should appreciate your advising us as to the number of the policy involved, the name of the insured and the nature of the action. ' Upon receipt of this information we shall promptly forward our file to you. “Yours very truly, “Harry Cole Bates ‘‘ Grenera! Counsel. ’ ’ “Harry P. Daily John P. Woods “Daily & Woods “Attorneys at Law “Merchants National Bank Building “Fort Smith, Ark. “May 9, 1938. “Mr. Fred Allred “Circuit Clerk “Benton County, “Bentonville, Ark. “In Re: Relly Duty v. Metropolitan Life Ins. Co. “Dear Sir: “Please send us copy of the complaint in the captioned case. “Also, please notify us the date of the convening of the next jury term of your circuit court. “For your convenience, we enclose a stamped addressed envelope. “Tours very truly,' “Daily & Woods “J. S. Daily. “ JSD :IB.” # * # # # “May 11,1938 “Mr. Harry Cole Bates, General Counsel “Metropolitan Life Insurance Company, “New York, N. Y. “Dear Mr. Bates: “Re: Relia Duty v. Metro. “ (HDG--15371) “We enclose herewith copy of the complaint filed in the captioned case. “The next reg-ular term of the Benton circuit court is the third Monday in September. The clerk notifies us that judge has made no announcement for an adjourned jury term before that date. However,, under a recent act of our Legislature, the judge can convene court on five days notice, and we, therefore, should file some pleading before the service matures. We, therefore, suggest that your file come forward immediately. “Yours very truly, “Daily & Woods “jsd ;a.” * # # # # “Metropolitan Life Insurance Company “Frederick H. Ecker, Chairman of the Board “Leroy A. Lincoln, President “New York City “May 24,1938 “In Be: Bella Duty v. Metropolitan “(HDG-15371) Policy No. 2770 “GLHD, Serial No. 5874, John B! Duty, Insured. “Daily '& Woods, Esqs., “Attorneys at Law, “Merchants National Bank Building, “Fort Smith, Arkansas. “Gentlemen: ‘ ‘We acknowledge receipt of yoiir letter of May 11th and are enclosing herewith our original file relating to the subject matter of this suit, together with a copy of the certificate issued to John B. Duty and a copy of the master policy. “Due to the absence of Mr. Guthrie, the attorney in charge of this case, we are unable to write you in detail regarding this matter. We will, however, write you more fully at the later date. “Meanwhile, we should appreciate receiving your comments and suggestions. “Yours very truly, “Harry Cole Bates “General Counsel “HDG:DS “Ends.” # * # # # Mr. Fred Allred testified that he was circuit clerk of Benton eounty, Arkansas; that he had in his hand law record “H” of the circuit court; when asked to turn to the record or adjournment order under which the court purported to have reconvened May 1,1938, he said: “May 16, 1938, order by the court that court adjourned until May 31, 1938.” He testified that on May 31st and on June 3rd, when Mr. Eice examined their records, those words were not on there; they were not that near up with their work, but had the calendar circled on that date; the typewritten words of the court order were written after May 31, 1938; the court did not make it a written order on his desk docket; they just circle the calendar to show when court is to meet again; he made the order on May 16th; witness does not know whether he heard it or whether the judge told him or the girl; they circled the calendar; there was nothing on the record to show that the court had adjourned until May 31st until it was put on the record, after May 31st; thinks they had it marked on the calendar when Mr. Eice came in. He was then asked if, when Mr. Eice examined the records on June 3rd or 4th, there was nothing on the record to show when court adjourned to; the court held this evidence incompetent. Mr. Jeff Eice, an attorney at Bentonville, testified that he was an attorney and that subsequent to May 31, 1938, made an inspection of the records in the office of Mr. Allred, clerk, for the purpose of finding the last adjourning order entered in that record; he made the inspection on June 3rd, when asked what was the last adjourning order of the court appearing on the record, objection was made and sustained.' The appellant then offered to prove that Jeff Eice, on June 3rd, inspected the record of the Benton circuit court, and the last adjourning order was one in which court adjourned until May 16th. Mr. Eice also testified that he did not know whether he was in Bentonville on May 31st, but does not believe he was in court; he heard there was a day of court; heard that Judge Combs was going to be there and hold court that morning. Mr. Allred was recalled and testified that Mr. Lindsey was absent from Benton county on May 31st, and he understood he was away then at the hospital; does not fainw when he left, hut sometime prior to May 31st, and returned sometime after that date. The appellant then offered to introduce the policy and other exhibits and other evidence to show that it had a meritorious defense, but the court declined to permit them to introduce any evidence as to a meritorious defense. ■ : Appellant first contends for a reversal because it ;says: “The plaintiff’s evidence established an unavoidable casualty or misfortune within the meaning of paragraph 7, § 8246, of Pope’s Digest.” Paragraph 7 of § 8246 of Pope’s Digest reads as follows:- “For unavoidable casualty or misfortune preventing, the party from appearing or defending.” The evidence shows that there was no record made either by the judge or the clerk to indicate that court had adjourned to the 31st day of May. No one could examine the record and tell what day court would convene. The clerk testified that when the court would adjourn to a certain date, there would be no notation or record on the judge’s docket indicating when court would convene, but that the judge would announce the date, and the clerk, instead of putting it on the record at that time, would circle his calendar. That evidently means that he would draw a circle around the day on the calendar when court would meet. But there is no evidence tending to show where he kept his caiéndar, and if there had been, it would not convey the information to any person that court would meet on a certain date because there was nothing on the calendar, according to the evidence, except a circle around the date. ‘ ‘ The law requires a party to- keep himself informed of the progress of the ease, and he must find out when his case is set for trial or when it is likely to be reached. However, the negligence of an attorney may be excusable when attributable to an honest mistake, an accident, or any cause which is not incompatible with probabilities on his part; and under such circumstances it is proper to set aside a judgment taken by default. 34 €. J. 309. This court, in the case of Leaming v. McMillan, 59 Ark. 162, 26 S. W. 820, 43 Am. St. Rep. 26, quoted with approval from the case of Tidwell v. Witherspoon, 18 Fla. 282, as follows: “ ‘The neglect of an attorney to prepare and file a plea, caused by his being summoned to a distant place on account of the serious illness of his wife, even though he might have made arrangements with another attorney to prepare it, or might have notified his client, yet did not do so because of his anxiety for his family, is not such neglect as should operate to the prejudice of his client.’ And in this case the judgment by default was opened up.” The court stated in the case of Leaming v. McMillan, supra: “It appears from the statements of the case, that the failure of the plaintiff, Darling, to appear at the term of the court when the judgment of dismissal was rendered was caused by an. unavoidable casualty, and that the non-attendance of himself and counsel was excusable under the circumstances.” Where a suit was brought under the section relied on by appellant here, the trial court set aside the default judgment, and said, among other things: “ ‘An Act of the court shall prejudice no man, is a mixim founded,’ says Mr. 'Broom, ‘upon justice and good sense. ’ Broom’s Legal Mixims, p. 99. And while the facts may not bring ■ the present case technically within this ancient maxim, the principle it announces should, by analogy at least, be and is applied here, to sustain the judgment of the court, which is accordingly affirmed.” Thweatt v. Knights & Daughters of Tabor, 128 Ark. 269, 193 S. W. 508. In the instant case the undisputed evidence shows that there was no record of the adjournment and no one could examine the records and ascertain when court would meet, or ascertain that there would be an adjourned term. Moreover, the evidence shows that the attorneys for appellant had information that the attorney for appellee was ill and had either gone to the Mayo Clinic at Rochester, Minnesota, or was going immediately. The attorney, also, testified that he talked with the clerk over the telephone after default judgment was had, and asked the clerk why he did not notify him that court was going to meet on that date, and the clerk said that he did not know it himself. A majority of the court is of the opinion that the evidence shows unavoidable casualty or misfortune preventing the appellant from appearing and defending. Mr. Justice Humphreys and the writer do not agree with the majority in this holding. As to whether the attorneys for appellant were guilty of negligence, it may he said that they were required to do just what a man of ordinary prudence would have done under the circumstances, and if they did this, they were not guilty of negligence. The court would not permit appellant to introduce evidence of a meritorious defense. Of course if there was no unavoidable casualty or misfortune, it would not be proper to introduce this evidence, but since a majority of the court holds that there was unavoidable casualty and misfortune, this evidence was proper, because, in order to get the judgment set aside it is necessary that the appellant show a meritorious defense. It follows from what we have said, that the judgment of the circuit court must be reversed, and the judgment is reversed and the cause remanded with directions to proceed with the trial of the case according to law and not inconsistent with this opinion.

Darrell Hickman, Justice. One James Leggins was convicted in the Pulaski County Circuit Court of two counts of aggravated robbery. The jury found he was an habitual criminal, having two prior convictions, and he was sentenced to 30 years imprisonment on each count, the terms to be served consecutively. The sole argument of error on appeal is that the trial court erred in permitting evidence of a prior conviction of one JAMES LIGION to be submitted to the jury as a prior conviction of this defendant who was named JAMES LEGGINS in the information. We agree this was error which requires us to reverse the judgment. A Mississippi County conviction, submitted to the jury as a prior conviction, read JAMES LEGGINS. To this conviction there was no objection. A Crittenden County Circuit Court conviction read JAMES LIGION. The only evidence of this conviction was simply a certified copy of the judgment and an order of commitment offered by the State with no explanation. The judge permitted it to go to the jury as evidence of a previous conviction of the appellant. There was no reference to an alias in any of the documents. Leggins’ counsel objected to the Crittenden County conviction being admitted but the trial court permitted it noting that the variation in spelling was a matter of weight to be attached to the document and not one affecting its admissibility. The prosecuting attorney argued to the jury that the two documents of previous convictions were uncontradicted, introduced in good faith by the State, allowed as evidence by the trial court as convictions of Leggins; none of this was rebutted by any evidence from the defendant. . On appeal the State argues the jury had other evidence which could justify their finding that JAMES LEGGINS and JAMES LIGION were the same person. A waiver of rights form was signed by this defendant as JAMES LEGGION. So was his statement. These documents were introduced during the trial of the case but were not referred to during the sentence phase of the trial. However, we have to assume that the jury had the benefit of this evidence when it found that the appellant had two previous convictions. Was the jury’s finding, that this defendant, charged as JAMES LEGGINS, is the same person as one convicted in Crittenden County Circuit Court, charged as JAMES LIG-ION, supported by substantial evidence? We think not. Proof of previous convictions is governed by Ark. Stat. Ann. § 41-1003 et seq. (Repl. 1977). The jury, or the trial judge sitting as a jury, hears evidence on this issue after the trial. A previous conviction must be proved by “ . . . any evidence that satisfies the trier of fact beyond a reasonable doubt . . . . ” Ark. Stat. Ann. § 41-1003. The following are sufficient to support such a finding: (1) The jury shall first hear all evidence relevant to the felony with which defendant is currently charged and shall retire to reach a verdict of guilty or innocence on this charge. (2) If the defendant is found guilty of the felony, the same jury shall sit again and hear evidence of the defendant’s previous felony convictions or previous findings of the defendant’s guilt of felonies. Defendant shall have the right to hear and controvert such evidence and to offer evidence in his support. (3) The jury shall retire again, and if it finds that the defendant has previously been convicted or found guilty of two [2] or more felonies, the jury shall consider the previous convictions or findings of guilt in determining the sentence to be imposed for the felony of which the defendant currently stands convicted. Ark. Stat. Ann. § 41-1005. A defendant may controvert such evidence and offer evidence to rebut the State’s. Ark. Stat. Ann. § 41-1005. However, the burden remains on the State at all times to prove such convictions beyond a reasonable doubt. The prosecuting attorney offered no evidence that this defendant was JAMES LIGION. He referred to the State’s good faith, the judge’s action in permitting the document to be admitted and the fact that the defendant could prove it was not he, if that was the case. We cannot stretch LEGGINS to be the same as LIG-ION. Nor can we stretch LEGGION to be LIGION. The doctrine of idem sonans, which is that absolute accuracy in spelling names is not required if the names, though spelled differently, sound practically identical, cannot work to support the jury’s findings. Some cases applying that doctrine support our conclusion. In Woods v. State, 123 Ark. 111, 184 S.W. 409 (1916), we held “Woods” was not the same as “Wood”, commenting that the “ s” at the end of a name is not silent and that the two names were not identical under the doctrine of idem sonans. In another case, “Jeffery” and “Jeffries” were not idem sonans. Marshall v. Jefferies, Fed. Cas. No. 9, 128(a) Hemp. 299 (Super. Ark. 1836). On the other hand, “Vaughn” and “Vaughan” were held to be identical. Goddard v. State, 100 Ark. 149, 139 S.W. 1121 (1911). “Forshee” and “Foshee” were held as idem sonans. Taylor v. State, 72 Ark. 613, 82 S.W. 493 (1904). The State argues on appeal that LEGGINS, or whatever his name is, signed an affidavit of indigency as LIGGION, but the State concedes this evidence was not presented to the jury. We have commented on the failure of a defendant to rebut the State’s proof, but those cases involved very minor variations in spelling. In Higgins v. State, 235 Ark. 153, 357 S.W. 2d 499 (1962), Lawrence John Higgins complained that the FBI document of previous convictions of one “Lawrence Higgins, also known as Lawrence John Higgins,” was erroneously submitted as evidence of a prior conviction. We had no problem in finding that Higgins’ argument was without merit. In Henson v. State, 248 Ark. 992, 455 S.W. 2d 101 (1970), Charles Eugene Henson was the named defendant. The previous conviction was of one “Charles Haggard, A/K/A Charles Henson.” We also found an objection to this evidence to be without merit. In both the Higgins and Hen son cases we commented that the defendant could have easily offered some proof to support the claim of mistake. However, in the Higgins case we adopted the rule that if the State offered evidence of a previous conviction of one of the same name, then a prima facie case was made of a previous conviction. That is sound law substantially incorporated in Ark. Stat. Ann. § 41-1003. But in both of these cases the name was the same or substantially the same. That is not true in this case. The State charged Leggins as the defendant in this case and without any other evidence offered, the jury found a conviction of a man named Ligion to be the same person. The names are not the same, are not pronounced the same and the jury would have to presume that the people were the same. There is no substantial evidence to support this finding. Undoubtedly our decision would be different if the affidavit of indigency had been submitted to the jury because there is not that much difference between LIGGION, as the defendant signed his name in that form, and LIGION, as the Crittenden County Circuit Court conviction read. Because this error relates to a previous conviction, we treat the matter as we did in McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1974). The sentence is reduced to 10 years imprisonment. If the State, through the Attorney General, desires to accept the reduction within seventeen calendar days, the judgment is affirmed as modified. Otherwise, the judgment is reversed and remanded. Affirmed as modified. Harris, C.J., not participating.

Frank Holt, Justice. Appellant, age 17, was found in contempt of court after her failure to appear in response to a subpoena as the victim-witness in a rape trial. Several months previously, she had sworn out a warrant for the arrest of three youths on that charge. The case was set for trial on May 31, 1979, at 9:30 a.m. When court was convened on that date, the state and defense announced ready for trial. The jury and all witnesses were present except the appellant who did not respond when her name was called to be sworn as a witness. Court was recessed for about an hour. Attempts to reach her by phone proved futile. The jury was dismissed and charges against the defendants were also dismissed. A petition for a contempt proceeding was filed against appellant by the state. She was picked up by the sheriff’s office about 11:30 a.m. and a hearing was held on the contempt charge at 4 p.m. at which she was represented by court appointed counsel. She was found in contempt, fined $50, assessed court costs of $460, and sentenced to 10 days’ imprisonment. Application for relief was made to this court on June 8, 1979, by a petition for writ of certiorari. On that date was granted the writ and ordered appellant released from jail upon $50 bail. Appellant contends here that the contempt proceeding did not meet due process requirements, the proof was insufficient, and her sentence was excessive. Appellant argues that she was too young, age 17, in view of her difficult circumstances, to act as a mature adult and her actions amounted to immature judgment, carelessness and negligence. We have the power to modify punishment imposed for contempt. Morrow v. Roberts, Judge, 250 Ark. 822, 467 S.W. 2d 393 (1971); and Garner & Rosen v. Amsler, Judge, 238 Ark. 34, 377 S.W. 2d 872 (1964). In Garner, we noted that the primary justification of punishment for contempt lies in the “need for upholding public confidence in the majesty of the law and in the integrity of the judicial system.” There we stated that it is our practice to modify a judgment for contempt when the ends of justice will be served despite a reduction or remission of the punishment. Here appellant has served 8 days of the 10 day jail sentence. Assuming, without deciding, that the requirements of the law were met, we think the “ends of justice” are fully met by a reduction in appellant’s jail sentence to that served and a remission of the $50 fine and $460 court costs. Affirmed as modified. Fogleman and Hickman, JJ., concur.

George Rose Smith, Justice. This action was brought by the appellee to recover $1,000 in benefits under a hospitalization policy which was applied for but never actually issued. The trial court, sitting as a jury, made a general finding of fact tliat a valid contract liad in fact been agreed upon. This appeal is from the ensuing judgment for $1,000, plus penalty and attorney’s fee. For reversal the insurer argues that the proposed agreement was never consummated. The facts, stated favorably to the appellee, are simple. On August 10, 1967, Fred Nolan, a soliciting agent for the appellant, called at Gatlin’s home and obtained his written application for a $1,000 hospitalization policy. For the first quarterly premium of $46.37 Gatlin gave a check, postdated September 1, which was eventually cashed by the insurance company. Nolan signed and issued a printed form of receipt which merely acknowledged receipt of $46.37 “as payment on insurance applied for” in the company. The application, which Gatlin signed without having read it, concluded with a paragraph reading in part: I hereby apply to Employers Protective Life Assurance Company at Little Rock, Ark., for a policy to be issued solely and entirely in reliance upon the written answers to the foregoing questions, and agree that it shall not be effective until a policy has been actually issued while all of the above members are alive and in sound health. (The pertinent clauses in the application and in the receipt are not set out in the appellant’s abstract, as they should have been, but they are quoted in the appellant’s brief, which is a substantial compliance with our Rule 9. Gott v. Moore, 218 Ark. 800, 238 S.W. 2d 754 [1951].) Gatlin testified that Nolan told him that the policy went into effect “as soon as I wrote you that receipt.” Nolan denied that statement, saying that he told Gatlin that the policy would go into effect as of the date of the application if it was approved by the home office. TTe accept Gatlin’s version, for that view was evidently taken by the trial court. On August 23 Gatlin was injured in an automobile accident and ultimately incurred hospital expenses exceeding the face amount of the policy. On September 13 the company sent Gatlin its check for the amount lie had paid and informed him that “we are not able to issue this coverage to you.” Gatlin refused the tender and filed this suit. AYe are unable to sustain the judgment. Gatlin relies on our holding in Union Life Ins. Co. v. Rhinehart, 229 Ark. 388, 315 S.W. 2d 920 (1958), but that case is not in point. There the company issued a “binding” receipt, which, when read along with the application, provided temporary insurance. AAre distinguished that case in Dove v. Ark. Nat. Life Ins. Co., 238 Ark. 1033, 386 S.W. 2d 495 (1965), where both the application and the receipt recited that the policy would take effect as of the date of the approval of the application at the company’s home office. Here the application states explicitly that “it shall not be effective until a policy has been actually issued.” Since, as we said in the Dove case, the application and the receipt are to be read together, the case at bar is substantially similar to the Dove case, where we held that there was no coverage until the application was approved at the company’s home office. AYe cannot distinguish that case from this one. It is immaterial that Nolan stated that the policy would be effective immediately, as a soliciting agent has no authority to agree upon the terms of the policy or to change or waive those terms. Holland v. Interstate Fire Ins. Co., 229 Ark. 491, 316 S.W. 2d 707 (1958). With respect to the effective date of the policy see also Appleman, Insurance Law & Practice, § 103 (rev. ed. 1965). Ee versed and dismissed.

Smith, J. Appellant was indicted for the crime of rape, alleged to have been committed upon the person of Dorothy Sutton, who was his daughter, “a female person under the age of sixteen years.” Upon his trial he was convicted of carnal abuse, and given a sentence of twenty-one years in the penitentiary, from which judgment is this appeal. It has been held that an indictment for rape will support a conviction for carnal abuse, Henson v. State, 76 Ark. 267, 88 S. W. 965, or an assault with intent to commit rape. Green v. State, 91 Ark. 562, 121 S. W. 949. For the reversal of this judgment it is insisted (1) that error was committed in excluding certain testimony and (2) that it was error to refuse to grant a new trial on account of the recantation by Dorothy of her testimony that her father had carnally known her. The excluded testimony was to this effect. Witnesses offered to testify that appellant’s wife — Dorothy’s mother — had said that she would be rid of appellant if she had to “frame up” on him and send him to the electric chair. In the case of Jenkins v. State, 191 Ark. 625, 87 S. W. 2d 78, the husband of the defendant was permitted to testify that defendant gave capsules supposed to contain quinine to their children, from the effects of which the children died during the night. We reversed the judgment of conviction in that case on account of the admission of this testimony, for the reason, there stated, that under the common law neither spouse was a competent witness against the other in any ldnd of case except insofar as that inhibition had been relaxed by statute. The reason which prevents one’s spouse from testifying against the other also inhibits favorable testimony in his behalf by his spouse. The admission of this testimony of the husband against the wife in the Jenkins .Case was sought to be justified under the provisions of § 3125, Crawford & Moses’ Digest {% 3950, Pope’s Digest), which reads as follows: “In any criminal prosecution a husband and wife may testify against each other in all cases in which an injury has been done by either against the person or property of either.” But’we held'that children were not “property” within the meaning of this statute. In this connection, it may be said that act 320 of the Acts of 1937, p.' 1218, may not be invoked,. as it applies only to civil actions. Upon the remand of the Jenkins Case, supra, for a new trial, she was again convicted, and that judgment was reversed because, at the second trial, reference was made to the incompetent testimony admitted at the former trial. Jenkins v. State, 193 Ark. 842, 103 S. W. 2d 37. It is true appellant did not offer to call his wife as a witness, but he did propose to prove her statements tending to corroborate his defense. This was testimony which the wife could not have denied had it been admitted. Statements between husband and wife, overheard by other.parties, may be used in evidence, and so also may statements of either spouse which are res gestae. Bibb v. State, 83 Tex. Cr. R., 616, 205 S. W. 135. But the excluded testimony was not of that character. At § 1192, vol. 3, Wharton’s Criminal Evidence, (11th Ed.), p. 2045, it is said: “The rule of exclusion also applies irrespective of the kind of testimony given by the witness.. Even the declaration of the accused’s spouse to a third person with reference to the accused’s guilt should not be received against the accused where it was not made in his or her presence or by his or her authority, although the rule is different if the declaration was made in his or her presence. However, res gestae declarations of husband and wife are admissible for or against each other, even-though each is incompetent to testify.” We conclude, therefore, that it was not error to exclude the testimony as to what appellant’s wife had said about his guilt. Attached to the motion for a new trial was the following affidavit: “Exhibit A. “Affidavit. ‘ Statement of Dorothy Sutton, wherein she retracts and recants the testimony given by her in circuit court in the trial of her father, David Garland Sutton, on the 12th and 13th days of May, 1938, on a charge of rape: “My name is Dorothy Sntton. I am 13 years old and will be 14 the 8th day of next August. I testified at my father’s trial that he had raped me; but this is not true. “He never did have anything to do with me that way. I hurt myself riding my cousin Junior Henry’s bicycle and this is the reason that the doctor found something the matter with me. (This being a ruptured hymen.) “I am making this statement because I want to. Nobody has made me do it, or threatened me to get me to do it, or. promised me anything for doing it. “Dorothy Sutton.” This writing bears upon its face the conclusive evidence that Dorothy herself did not write this statement, although she signed it. Quite obviously it was dictated by some other person. Nor did she appear before the judge for his examination of her, on hearing this motion, as to the time when, place where, or circumstances under which the affidavit was made. The case of Roath v. State, 185 Ark. 1039, 50 S. W. 2d 985, is cited and relied upon as authority authorizing and requiring the granting of a new trial. In that case it was said: “In considering the recantation made by Mrs. Griffin of her testimony in the case at bar, it may be said that it is the better rule that the recantation of testimony of a material witness made after the trial and verdict is not sufficient to authorize the setting aside of the verdict and granting of a new trial where the verdict is justified on other testimony than that of the recanting witness, and in such cases we have consistently refused to reverse for a new trial. Osborne v. State, 96 Ark. 400, 132 S. W. 210; Brown v. State, 143 Ark. 523, 222 S. W. 377; Little v. State, 161 Ark. 245, 255 S. W. 892. However it is equally well settled in cases where the material evidence upon which a verdict is grounded, and without which it would not have been justified, is given by a wit ness who subsequently repudiates this testimony, a new trial ought to be granted. Bussey v. State, 69 Ark. 545, 64 S. W. 268; Shropshire v. State, 86 Ark. 481, 111 S. W. 470; Meyers v. State, 111 Ark. 399, 163 S. W. 1177, L. R. A. 1915C, 302, Ann. Cas. 1916A, 933.” It is true in this case, as it was true in the Eoath case, supra, that a conviction would not have been had without the retracted testimony, but there was manifested in the Eoath Case no purpose to modify or change the rule regarding’ the duty of the trial judge in passing upon the effect to be given the retraction. In the three cases first cited in the quotation from that opinion the judgments were affirmed notwithstanding the retraction; in the last three cases there cited the judgments of conviction were reversed on that account. In the first of these last three cases — the Bussey case — Judge Eiddick said: “The circumstances under which she made this written retraction of her former testimony are such as to raise the belief that the retraction, and not the testimony, is true, . . . .” In the second of those cases — the Shropshire Case— ■ one of the state’s witnesses swore to defendant’s guilt under a misapprehension that defendant’s brother was on trial. In holding that this newly-discovered evidence required the granting of a new trial it was there said: “If any issue of fact had been made on it, or his affidavit had been in conflict with any of the established facts of the case, or had been made under circumstances- throwing suspicion upon it, then the circuit judge should be sustained in disregarding it.” In the third of those cases — the Myers Case — the question was more elaborately considered than in either of the other cases. The prosecutrix and other witnesses in that case appeared in open court at the hearing of the motion for a new trial. It was there made to appear —and we found the fact to be — that the prosecutrix had testified under coercion, and that she had voluntarily retracted her false testimony. In the Boath Case itself the facts were that subsequent to that trial, and within the time allowed for filing a motion for a new trial, the recanting witness was placed on trial for the same crime. In her trial, where she was subjected to examination and cross-examination, she repudiated the testimony given by her at Boath is trial, and stated that she had been coerced by the officers while in jail into giving the false testimony at his trial, and that it was false. The original testimony of this witness may or may not háve been given under duress, but her recanting testimony was entirely voluntary, and, as stated in the opinion in the Boath Case, “her recantation presents such a state of case that makes us believe that a grave injustice might be wrought by suffering the judgment based on her evidence to be sustained, and that the ends of justice would best be served by a new trial.” As has been stated, there was nothing in the opinion in the Boath Case impairing the authority of the first three cases there cited in the quotation from that opinion, the latest of which is Little v. State, 161 Ark. 245, 255 S. W. 892. This Little Case, supra, reviewed a large number of our cases and cases from other jurisdictions on the subject, and we there quoted with approval from the case of People v. Shilitano, 218 N. Y. 161, 112 N. E. 733, L. R. A. 1916 F, 1044, as follows: “ ‘In determining the weight to be given to the statements of these witnesses affirming the guilt of the defendant and recanting their testimony, we must endeavor to discern the motives which actuated them. If, upon examination, it should appear that their testimony upon the trial was given without any motive to falsify, and that their statements recanting their testimony were prompted by corrupt or unworthy motives, but little weight should be given to the recanting statements. ' There is no form of proof so unreliable as recanting testimony. In the popular mind it is often regarded as of great importance. Those experienced in the administration of the criminal law know well its untrustworthy character.’ ” A large discretion abides in the trial judge in granting or in refusing to grant a new trial on account of newly-discovered evidence, and we review and reverse his action in that "behalf, only where it is made to appear that this discretion has been abused. Clayton v. State, 186 Ark. 713, 55 S. W. 2d 88. In view of the fact that the recanting witness was not brought into court for examination as to the circumstances relating to her recantation, and that no showing was made that this action was voluntary on her part, we are unable to say that the trial judge so far abused .his discretion that the judgment must be reversed on that account. As no error appears the judgment must be affirmed, and it is so ordered.

Marian F. Penix, Judge. Defendant was charged with Burglary and Theft of Property in violation of Ark. Stat. Ann. §§ 41-2002 and 41-2203, respectively. Allegations were on November 4, 1978 the defendant and two companions broke into Couch’s Exxon Station in North Little Rock and took tools valued over $100.00. Also alleged was the defendant had previously been convicted of more than one but less than four other felonies, and his sentence should be made greater, accordingly. Defendant pleaded not guilty. Defendant was tried by a jury, found guilty, sentenced to fifteen years on the burglary charge and five years on the theft charge, the terms to run consecutively. Before trial, a Denno hearing was held on the defendant’s motion to suppress an in-custody statement which he made. The court allowed the statement introduced into evidence. From this ruling, the defendant appeals. From the record we find State Police Investigator Lynn Chachere interviewed the Defendant at the Prairie County jail on November 9, 1978 at 11:30 p.m. Present was Chief Deputy Sheriff of Prairie County, Bruce Roe. Prior to the interview of the defendant, Trooper Chachere interviewed two other defendants, Mills and Edwards, who were the defendant Elmore’s accomplices in several burglaries and had been arrested with Elmore. Trooper Chachere took down a lengthy statement from defendant Elmore. However, Elmore refused to sign the statement. Both Chachere and Roe testified Elmore’s statement was freely gi-ven. They also testified Chachere read Elmore his rights from the State Police standard rights waiver form and Elmore initialed each separate right and signed the form. The defendant Elmore testified in his own behalf. He denied having made the statement. He also stated his requests for an attorney were refused and alleged the officers threatened to “bust his head” if he didn’t talk. The defendant also denied ever having read the statement. At the conclusion of the Denno Hearing, the trial court found the defendant’s statements to have been voluntary and that he had been advised of his rights. The defendant was 23 years old. The trial judge had the opportunity to personally observe him during the Denno Hearing and also at the time of his testimony during the trial. There are several factors to be considered, by the trial court in determining whether a defendant’s confession was voluntarily given. These include the age of the accused, lack of education, low intelligence, lack of advice as to his constitutional rights, length of detention, repeated and prolonged nature of questioning, and the use of physical punishment. Perkins v. State, 258 Ark. 201, 523 S.W. 2d 191 (1975); Watson v. State, 255 Ark. 631, 501 S.W. 2d 609 (1973). There is conflicting testimony as to what occurred at the time Trooper Chachere interviewed the defendant. The defendant testified he was threatened into making a statement, and also was denied the opportunity of calling an attorney. Both Trooper Chachere and Deputy Sheriff Roe testified the defendant was informed of his rights, that defendant voluntarily waived his rights, and that the defendant gave the statement to Trooper Chachere even though he wouldn’t sign it. This court must uphold the finding of the lower court unless such finding is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 518 S.W. 2d 515 (1975); Rouw v. State, 265 Ark. 797, 581 S.W. 2d 313 (1979). The fact the statement was unsigned does not render it inadmissible where the defendant is shown to have understood the substance of the statement. Wong Sun v. U.S., 371 U.S. 471. See also, Scott v. State, 249 Ark. 967, 463 S.W. 2d 404 (1971). Affirmed. Hays, J., dissents.

George Howard, Jr., Judge. The central issue in this enormously emotional and sharply controverted divorce proceeding is whether the trial judge’s decree awarding custody of the parties’ four-year-old daughter to the father is in the best interest of the child. The pertinent facts are: Appellant instituted an action for an absolute divorce. She also requested custody of the parties’ minor child. Appellee filed his counterclaim for divorce and custody of the child. On July 18, 1978, temporary custody of the child was given to the father. The court found it would be in the best interest of the child to do so. On December 27, the trial court conducted a final hearing which was replete with charges and countercharges of improprieties of language and conduct on the part of each parent. Appellant testified that during the parties’ five years of marriage, she has been required, although against her will, to permit appellee to indulge in oral sex during their personal and intimate relations. Relative to the relationship between appellee and the parties’ minor daughter, appellant stated: A. He wouldn’t never let me have anything hardly to do with my child. And he wouldn’t allow me to sleep with her and he wouldn’t allow me to give her a bath. Q. Who did give her a bath? A. He did. And he got in the bathtub with her and he bathed her and he slept with her. Q. Now, when you say he got in the bathtub with her, describe his condition with reference to whether he was clothed or unclothed when he got in the bathtub with her. A. He was totally naked. Q. Now, how frequently did this occur? A. Every night. A. Yes, sir. I have seen him a many of times in the living room floor playing with Leigh. He has kissed her face and kissed her stomach as if she were a grown woman. And he would absolutely get up out of the floor with [an erection] . On the other hand, appellee testified that appellant has threatened to kill the parties’ child and has stated that she wished the child had died at birth; that appellant “jerk her around . . . holler at her and she did cuss around her.” Appellee also cited an incident where appellant purportedly threw a portable typewriter at appellee and the child. The trial judge, at the conclusion of the trial, entered his decree, dismissing appellant’s complaint for divorce and awarded appellee an absolute divorce on his counterclaim. The decree, as it relates to custody of the parties’ minor child, provides: 6. There was born of the marriage of the parties one child, being Elizabeth Lee Lenderman, now age 4 years, which child is in the custody of the defendant, Jerry Lenderman. It will be for the best interest of the minor child that her custody remain and be with the defendant, Jerry Lenderman, subject to visitation by the plaintiff . . . . . . [TJhat the custody of Elizabeth Lee Lenderman should be and it is hereby awarded to the defendant subject to the rights of visitation on the part of the plaintiff as hereinabove set forth; . . . It is well recognized that chancery cases, including child custody cases, are tried de novo on appeal and the action of the trial court will not be disturbed unless it is against the preponderance of the evidence. Moore v. Smith, 255 Ark. 249, 499 S.W.2d 634. Moreover, when the record is not fully developed and the appellate court cannot determine what the equities are, the appellate court will remand the proceedings to the trial court instead of proceeding to consider the merits and rendering a decree as should have been entered below. Arkansas National Bank v. Cleburne County Bank, 258 Ark. 329, 525 S.W.2d 82; Crease v. Lawrence, 49 Ark. 312, 3 S.W. 196; Picket v. Ferguson, 45 Ark. 177, The record contains charges about appellee’s alleged sexual proclivities, which were not refuted. In Matthews v. Lanier, 33 Ark. 91 (1878), the Arkansas Supreme Court held that when the parties to a lawsuit offer testimony as to matters within their knowledge, and material evidence of one party is not contradicted by the other, it must be presumed to be true. See also: Miller v. Jones, Adm’r., 32 Ark. 337 (1877). The trial judge made no findings regarding the charges. We are unable to say that the court’s decree is supported by a preponderance of the evidence; nor are we in a position to find that custody of the parties’ minor child should be awarded to appellant. Under these circumstances, we deem it appropriate to remand this proceeding to the trial court so that a hearing may be conducted in order to determine the merit of the charges made by appellant regarding appellee’s alleged sexual propensities so that the court may satisfy himself that it is in the best interest of the parties’ minor child to vest custody with appellee. The proceeding may encompass, but not be limited to, a detailed investigation of appellee’s living accommodations by the State Department of Social Services and consideration of the possibility that neither parent is suitable for custody of their child. Moreover, the court may consider the feasibility of vesting custody with a grandparent or the State Department of Social Services. In awarding custody of an infant, the court must keep in view primarily the welfare of the child. Perkins v. Perkins, 266 Ark. (Decided October 3, 1979); Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978); Walker v. Walker, 262 Ark. 647, 559 S.W.2d 716 (1978). The custody decree should not be framed or designed simply to conform to the wishes of a parent, nor should it be used as an instrument to reward or punish a parent. The public has a vested interest in seeing that custody of a minor child is based on what is, in fact, the best interest of the child. Indeed, a child who is exposed to an environment which enhances his development, both physically as well as psychologically, is not only rewarding to the child, but is equally rewarding to his peers, as a role model, and to society as a whole. Accordingly, we reverse the trial court and remand for proceedings not inconsistent with this opinion. This, however, does not mean that the trial court should divest the father of the custody of his minor child without affording appellee an opportunity to be heard. Reversed and remanded. Penix, J., dissenting.

Cart.eton Harris, Chief Justice. On February 17, 1968, an election was held in Calion, a second class city located in Union County, on a proposal to annex some 1500 acres to the city. One hundred and sixteen votes were cast for the proposal, and 107 votes were cast against it. Only one polling’ place was provided for the election, and the polls were closed at 6:30 P.M., one hour before the time provided by statute . The record reflects that there were 303 qualified to vote in the election, and 78 of these did not vote . The election result was announced about 7:00 P.M. Appellants filed an election contest within the proper time, but, on hearing, the complaint was dismissed by the trial court. From the judgment so entered, appellants bring this appeal. For reversal, it is asserted that Ark. Stat. Ann. § 3-908 (Supp. 1967) is mandatory; that Ark. Stat. Ann. 19-1101.3 (Repl. 1968) (which requires a polling place for each ward in a city of the second class), is also mandatory, and finally it is contended that the failure of election officials to follow the directions of a mandatory statute, results in placing the burden of proof in an election contest on the contestees, instead of the contestants. We find no merit in any of the points raised by appellants. It is argued by appellants that the failure to strictly comply with the aforementioned statutes had the effect of invalidating the election. It might first be said that such a provision is not included in the statutes under discussion, and the contention is absolutely contrary to several of our cases. As to closing the polls one hour early, this court held such a contention to be without merit as long ago as 1880. In Holland, as Collector, v. Davies, 36 Ark. 446, the polls at a district school election were closed two and one-half hours early; the validity of the election was challenged on several grounds, including this particular averment, but this court held to the contrary, stating: “The provision of the statute fixing the time of closing the polls of an election is directory and not mandatory. Manifestly an election should not be set aside and the object for which it was held defeated, though the law has not been strictly complied with, where no obstruction or impediment to a fair expression of the will of the electors is Shown” . Here, only three witnesses testified. The County Clerk testified as to the number of persons voting, the number of qualified electors not voting, the result of the election, and the fact that only one polling place was provided. It was stipulated that the polls were closed at 6:30 P.M. Robert D. Walker testified that he was present at the polling place from 6:30 P.M. until 7:00 P.M., and no one came to vote during that period. He said that his wife announced the result of the election at approximately 7:00 P.M. Otis Williams testified (hat lie was also present at the polling place in Calion, and that no one came there between 7:00 and 8:00 P.M. It will be noted that not a single individual testified that he went to the polling place to vote, and found the polls closed, or that he did not go to vote because he had already learned that the polls had closed. In other words, there is no evidence that anyone who desired to vote was deprived of that right. Though appellants, in answering interrogatories (unverified and not introduced), listed 88 persons (10 more than the record reflects were eligible) as having been denied the right to vote, no such testimony was offered . Surely, if the early closing resulted in denying the privilege of the vote to numerous people, some would have come forward to so testify. likewise, the contention that the election was invalid because there was only one polling place open is without merit. The same general rule covers this situation. In Orr v. Carpenter, 222 Ark. 716, 262 S.W. 2d 280, this court, quoting an earlier case, said: “To hold that all prescribed duties of election officers are mandatory, in the sense that their nonperformance shall vitiate the election, is to ingraft upon the law the very powers for mischief it was intended to prevent. If the mistake or inadvertence of the officer shall be fatal to the election, then his intentional wrong may so impress the ballot as to accomplish the defeat of a particular candidate or the' disfranchisement of a party. And it is no answer to say that the offending officer may be punished by the criminal laws, for this punishment will not repair the injury done to those affected by his acts. It is the duty of the courts to uphold the law by sustaining elections thereunder that have resulted in full and fair expression of the public will, and, from the current of authority, the following may be stated as the approved rule: All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to affect an obstruction of the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provision affects an essential element of the election or unless it is expressly declared by the statute that the particular act is essential to the validity of the election, or that its omission shall render it void.’! As to proof, the discussion under Point 1 also applies here, i.e., not a single person testified that he or she was deprived of voting because only one polling place was provided. While we do not condone irregularities, it is, we think, quite evident that no voter was deprived of the constitutional right to express himself in this election. We recognize, as mentioned by appellant, that it would have been well nigh impossible for a court order to have been obtained at 6:30 P.M., requiring that the polling place remain open until 7:30 P.M. However, the italicized language in both Holland, as Collector v. Davies, supra, and Orr v. Carpenter, supra, makes clear that where the failure to observe the statute affects an essential element of the election or prevents a fair ex pression of the will of the electors, the rule is different . Appellants are in error in stating that the burden of proof should have been placed upon the contestees, ri Ilier than the contestants. In Pogue v. Grubbs, 230 Ark. 805, 327 S.W. 2d 4, we pointed out that, in an election contest, the official returns are prima facie correct, and the burden is on the contestant to show to the contrary by affirmative proof. Affirmed. Ark. Stat. Ann. § 3-908 (Supp. 1967): “The polls shall be opened at eight (8) o’clock a.m., and shall remain open continuously until seven-thirty (7:30) o’clock, p.m.” This provision, changing tile closing time from 6:30 P.M. to 7:30 P.M., was enacted by the General Assembly in 1967. It is evident that one of the figures appearing in the record is incorrect, for the total of the votes for, votes against, and persons not voting, actually totals 301. Emphasis supplied. There was no allegation of how these people would have voted, i.e., whether they favored the proposal or were against it. Emphasis supplied. In Bingamin v. City of Eureka Springs, 241 Ark. 477, 408 S.W. 2d 607, the statute relative to the manner of applying for and voting an absentee ballot, was violated. Though the suit was not filed until after the election, we invalidated the votes of six persons, finding, in effect, that the violations were such as to obstruct the free and intelligent casting of the vote, and that the challenged ballots affected the result; in other words, the violations concerned an essential element of the election. The invalidation of the six ballots changed the election result.

Smith, J. On January 6, 1936, appellee, as trustee for the Union Trust Company, filed suit to foreclose a deed of trust executed to the trust company by W. K. Oldham and wife. On February 18, 1936, an amendment to the complaint was filed alleging that appellant, C. W. McAllister, claimed some interest in the lands described in the deed of trust sought to be foreclosed in which amended complaint it was prayed that McAllister be summoned to answer and that his interest, whatever it may be, be adjudged junior and subordinate to the lien of the deed of trust. On February 26, 1936, McAllister filed a separate answer and cross-complaint, in which he alleged ownership of some of the lands described in the deed of trust, under a purchase from the state in January, 1936, as “forfeited lands,” and he exhibited deeds therefor from the State Land Commissioner. The deeds to McAllister from the 'State Land Commissioner were based upon the forfeiture and sale of the lands to the state on June 12, 1933, for the nonpayment of the taxes due thereon for the year 1932. The plaintiff trustee filed a “Separate answer to the cross-complaint of defendant McAllister,” in which it was alleged that this tax sale was void for numerous reasons, and it was prayed that the deeds from the State Land Commissioner to McAllister, based thereon, be canceled as clouds upon plaintiff’s title, full tender having been made McAllister. It very clearly appears that the sale of these lands for the .1932 taxes due thereon was void for one or more of the several reasons alleged by plaintiff trustee; but. Act 142 of the Acts of 1935, page 402, was in effect when the pleadings, ■ above referred to, were filed, and, as was said in the recent ease of Kansas City Life Insurance Co. v. Moss, 196 Ark. 563, 118 S. W. 2d 873, “said Act was applicable in this case, because its provisions were in force and had been invoked, or were available, for the defense in the pending suit at the time of its repeal by and under the doctrine announced in the case of Carle v. Gehl, 193 Ark. 1061, 104 S. W. 2d 445. The defense under said act was not destroyed but continued in force, under § 13284 of Pope’s Digest.” We have a number of cases construing* this act 142 of the Acts of 1935, the first being the case of Carle v. Gehl, cited in the.casé of Kansas City Life Insurance Co. v. Moss, from which we have just quoted, and which is one of the latest cases in which that act was construed. These and the other eases are to the effect that “irregularities, informalities or omissions” in a tax sale which do not “go or extend to the power to make the sale of the property, or prevent the exercise of that power to sell,” are cured by this act 142. Section 1 of Act 142 provides that “Whenever the state and county taxes have not been paid upon any real or personal property Avithin the time provided by laAV, and publication of the notice of the sale has been given cinder a valid and proper description, as provided by laAV, the sale of any real or personal property for the nonpayment of said taxes shall not hereafter be set aside by any proceedings at laAV or in equity because of any irregularity, informality or omission by any officer in the assessment of said property, the levying of said taxes, the making of the assessor’s or tax book, the making or filing of the delinquent list, the recording thereof, or the recording of the list and notice of sale, or the certificate as to the publication of said notice of sale; provided that this Act shall not apply to any suit now pending seeking to set aside any such sale, or. to any suit brought Avithin six months from the effective date of this Act for the purpose of setting aside any such sale.” Without revieAving the defects alleged and sIioavu to .exist in the sale for the taxes of 1932, it may be said that they Avere such “irregularities, informalities and omissions” as would be cured by Act 142 if that act applies to the sale here under review. It will be observed that for this act to apply to and cure a tax sale which would otherwise be Amid, it is essential that the taxes have not been paid and that “publication of the notice of the sale has been given under a valid and proper description, as provided by law.” Here, the testimony shows that no record Avas made shoAving publication of the notice of sale, and the undisputed testimony of the. Deputy County Court Clerk, the custodian of the tax records, and that of an experienced abstractor of land titles who had intimate knoAvledge of the tax and other - records of that county affecting land titles, confirms this fact. There is no record which shows when the delinquent list was filed, or when it was recorded, and there is no record showing that any notice of the sale was published. It is true that §§ 5 and 6 of Act 250 of the Acts of 1933 were in force when the sale was made. The effect of these sections was considered and announced in the recent case of Hirsch and Schuman v. Dabbs and Mivelaz, ante p. 756, 126 S. W. 2d 116, and what was there said need not be here repeated. Under the portion of this Act 250 held valid in the case of Matthews v. Byrd, 187 Ark. 458, 60 S. W. 2d 909, it was not required that the “notice of delinquent tax sale” should describe the lands which were delinquent, but they were referred to as being “contained and described in the list or record on file in the office of the clerk of the county court.” Whether this was a “valid and proper'description” of the delinquent lands within the meaning of Act 142 is a question which we need not here decide, as no notice of this sale was published. It is argued that under Act 250 it is no longer necessary to make a record showing the date and manner of the publication of the notice of sale. This contention was made in the Hirsch 'Case, supra, but that contention was not sustained. On the contrary, it was held that the provisions of § 10085, O. & M. Digest, requiring the clerk of the county court to record the list and notice of sale, stating “in what newspaper said list was published and the date of publication, and for what length of time the same was published . . had not been repealed, and this record was not made. In the recent case of Emerson v. Voight, 196 Ark. 129, 116 S. W. 2d 348, the notice of sale of delinquent lands was published, but the date of the last publication of the notice was less than two weeks before the day of sale. It was there held that as there was no publication of the notice conforming to law, this failure was not cured by Act 142. It is argued that upon the production of the deeds from the State Land Commissioner based upon the sale for the 1932 taxes, a presumption arises that the sale was conducted in a manner conforming to law. This is true. But this presumption is only prima facie, and may be shown to be untrue, and, as we have said, the testimony shows, as the court below found, that there was no publication of the notice of sale. This fact alone would render the sale void, and operates to prevent the curative provisions of Act 142 from applying’. The right of the trustee to question the validity of the sale is raised. The trustee made tender to the tax purchaser, the sufficiency of which is not questioned, and the title of 'the trustee to the lands described in the deed of trust sufficiently supports his right to question the tax sale. Upon filing the suit to foreclose, a receiver was appointed, who has since been in possession of the land, and this possession is, of course, for the benefit of all parties in interest. The case of Britt v. Harper, 132 Ark. 193, 200 S. W. 787, is authority for granting the relief by canceling the deeds from the State Land Commissioner, as was done, based, as those deeds were, upon an invalid tax sale. In that case' it was held that “A mortgagee in possession has the right to take the necessary and proper action to protect that possession, and may maintain an action to cancel an invalid sale of the land for taxes.” This suit is, in effect, one to redeem, and when a sufficient tender for that purpose was made and refused, nothing remained to do but to file suit to cancel the deeds and thus enforce the right of redemption, and the effect of canceling the commissioner’s deeds was to permit a redemption. This relief was prayed by the owner of the equitable title to land which had been forfeited to the state for the non-payment of the taxes due thereon in the case of Woodward v. Campbell, Commissioner, 39 Ark. 580. The lands there forfeited to the state had been purchased from the state with levee bonds. The sale by the state was held ineffective for the reason that payment for the lands of the state in levee bonds was no payment and the purchaser acquired no rights thereby. In holding that, the equitable owner had the fight to redeem and have the sale'by the state canceled, it was there said: “Statutes providing for redemption from tax sales always receive a liberal construction. Almost any right, either at law or in equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or incumbrance on the land, amounts to such an ownership as will entitle the party holding it to redeem. Certainly a party claiming the land under an executory contract to purchase it is the owner within the meaning of .the act. Cooley on Taxation, 366; Rice v. Nelson, 27 Iowa 148; Rogers v. Rutter, 11 Gray 410.” See, also, McMillen v. East Arkansas Investment Co., 196 Ark. 317, 117 S. W. 2d 724, and also Emerson v. Voight, supra, in which last cited case a deed of the Commissioner of State Lands was canceled because the sale on which the deed was based was void. The decree of the court below, from which is this appeal, conforms to the views here expressed, and it is, therefore, affirmed.

M. Steele Hays, Judge. This case involves conflicting claims of certain real property along the Red River in Little River County, Arkansas. The dispute is between Mr. and Mrs. Temple, the appellees, and the successors in interest of Mr. Kelly Budd, the appellants. Kelly Budd bought his farm along the Red River in 1951. The property was west of the river which ran along a high bank fence but subsequently the river moved to the east, creating accretions to the property of both Kelly Budd and the Temples. The Temples did not reside on their property but had leased their farmland during this time (from the early 1950’s through 1977). The property in dispute was controlled exclusively by the Budd family. Many of their farming activities were carried out on the property in dispute, i.e., building roads, erecting fences, and running cattle on the property. Mr. Budd died in 1970, but the property continued to be exclusively controlled by his heirs. On January 30, 1978, the Budd family filed a complaint in equity to quiet title to the disputed area in their name. The trial court found that although the disputed property was in the exclusive control of the Budd family and had been since the early 1950’s, the appellant’s claim of ownership by adverse possession was without merit because Mr. Budd had acknowledged the Temple’s interest in the property and therefore lacked the required element of hostility for a valid claim of adverse possession. The appellants bring this appeal from the judgment. The appellants allege three points for reversal, but, for purposes of this opinion, they may be combined into a single question. The central issue raised by this appeal is whether the appellants have acquired title to the disputed property through adverse possession. We concur in the trial court’s decision on the issue and therefore hold that title did not vest in the appellants. It is well settled that in order to acquire title by adverse possession, the possession must be hostile and adverse. Utley v. Ruff, 255 Ark. 824, 502 S.W. 2d 629 (1973); Arkansas Commemorative Commission v. Little Rock, 227 Ark. 1085, 303 S.W. 2d 569 (1957). If the possession is in subordination to the rights of the true owner, whenever asserted, then the statute of limitations will not begin to run. Bayles v. Dougherty, 77 Ark. 201, 91 S.W. 304 (1905). 3 Am. Jur. 2d Adverse Possession § 32 (1962) states: While occupancy of the premises, the payment of taxes, and the making of improvements are circumstances favorable to the claim of adverse possession, they do not in and of themselves establish title by adverse possession; in addition there must be a hostile title or claim. Thus title is not to be overcome by evidence of entry and occupation alone, but the hostile intent must be clearly demonstrated. In a claim of adverse possession, the intention is the controlling factor. Arkansas Commemorative Commission, supra. The intention to hold must be clear, distinct and unequivocal. In the instant case, there was testimony at trial which indicated that Mr. Kelly Budd had once told his son that he recognized some interest of the Temples in the disputed property. This occurred one afternoon when Kelly Budd and his son were walking along the high bank fence and Mr. Budd told his son that the Temples had some interest in the land above the area where they were standing, pointing in a southeasterly direction. In Sloan v. Ayres, 209 Ark. 119, 189 S.W. 2d 653 (1945), a case with a similar fact situation, the plaintiff brought an ejectment action to determine ownership of approximately five acres of land which accreted to the west bank of the Little River. The defendant was an adjoining riparian landowner who had been in exclusive possession of the land. However, the plaintiff attacked his claim of adverse possession by offering evidence of a letter to him from the defendant which stated he would be glad to cooperate with the plaintiff as to boundary lines, roads, etc. This letter was written in response to a request by the plaintiff to leave open a road which the defendant was about to close. The jury returned a verdict for the defendant and plaintiff appealed. The Arkansas Supreme Court upheld the jury verdict, stating that the letter was not a conclusive admission. Such evidence is admissible on the question of whether claimant’s possession was in fact hostile, but it is for the jury to consider along with all the other facts and circumstances. [See also Shirey v. Whitlow, 80 Ark. 444, 97 S.W. 444 (1906).] Similarly, in Sanders v. Baker, 217 Ark. 521, 231 S.W. 2d 106 (1950), plaintiff brought an action to quiet title to a strip of land and to cancel a deed to the land in possession of the defendants. Plaintiff asserted ownership of the property in question by adverse possession. He had title to four lots which he had purchased. The disputed property concerns two other adjoining lots. The chancellor dismissed the complaint, stating that although he had told friends that he owned all the land, other testimony revealed that he had made an effort to purchase the disputed property from the defendant. On appeal, plaintiff contended that title by adverse possession had already vested when these negotiations took place. Hence, title could not be divested out of the plaintiff by admission of a better title. Stroud v. Snow, 186 Ark. 550, 54 S.W. 2d 693 (1932). The Arkansas Supreme Court rejected this argument, stating that although such testimony is inadmissible for the purpose of divesting title out of the adverse occupant, it is admissible for the purpose of showing that possession was not adverse. Hence, the court held that in light of this testimony, the chancellor’s findings were not against the preponderance of the evidence. In the case before us, the testimony of Joe Kelley Budd indicated that both he and his father had recognized the Temples’ interest in the disputed property. It is clear from the cases cited above that mere possession is not enough to sustain a claim of adverse possession. Possession will not ordinarily be presumed to be adverse, but rather subservient to the true owner. Hence, there is every presumption that such possession is in subordination to the legal title. 3 Am. Jur. IdAdverse Possession § 34(1962). The intention to hold adversely must be clear, distinct and unequivocal. We believe the chancellor could reasonably find that this testimony was an indication that Mr. Budd lacked the hostile intent. Although there was testimony that one of Mr. Budd’s employees had once “run-off’ some surveyors sent by Mr. Temple; Mr. Temple also testified that, subsquently, in telephone conversation between Mr. Budd and him, Mr. Budd had reaffirmed that they would work out their boundary line. This evidence again indicates a lack of hostile intent. One other point should be mentioned. It is claimed by the appellants that if not the entire tract of the disputed property is determined to have been adversely possessed, then all of the property south of their north accretion line should be held to have been in adverse possession by the appellants. However, we find no substantial evidence on which to base this claim of adverse possession for a portion of the disputed property. We believe the chancellor’s division of the land was reasonable under the facts and the applicable law of - accretions. Moreover, Kelly Budd’s statements, both to his son and to Mr. Temple, indicated that he recognized the Temples’ interest in the property. Hence, the chancellor’s decision to divide the property according to its true boundary lines was not against a preponderance of the evidence. Therefore, we affirm the decision of the lower court.

Marian F. Penix, Judge. This case was appealed to the Arkansas Supreme Court and by that court assigned to the Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3). The appellant, former wife of the appellee, brought action in the Yell County Chancery Court for a partition sale of 27 acres of land the parties owned in Yell County. A Florida divorce decree, dated May 16, 1974, as partial lump sum alimony awarded the wife use and possession of the property for life or until she should remarry. She was directed to make the mortgage payments, and the decree provided she would receive equity credit for all payments made by her and also equity credit for any increase in the value of the property during her use and possession. The defendant appellee was served in Texas by notice from an attorney ad litem and and filed an answer in the case by his Texas attorney, Roland J. Bellard, in which it was stated the attorney was a part owner of the property. The answer was on behalf of both the appellee and Mr. Bellard, although Mr. Bellard had not been made a formal party. Subsequently an agreed partition decree for sale of the property was ordered and the finding made that appellant and the appellee’s successor were the owners of the property, the land was not susceptible to division in kind without prejudice, and the property should be sold at public auction by a commissioner appointed in the decree. At the sale the appellant purchased the property for $28,100 and the sale was confirmed by the court by order filed February 14, 1978. A separate order filed on the same date directed payment of attorney fee and costs out of the proceeds, allowed appellant reimbursement for mortgage payments, taxes, insurance premiums and part of her expenditures for bushhogging and clearing. However, there was error in the net figure stated in the order for disbursement for appellee’s interest. No pleading attempted to set out the respective interests of the parties and the order of sale did not definíate the interests. Appellee petitioned the court to correct the order for distribution to increase the amount of his one-half of the net proceeds to $8,040.98 from the figure of $1,126.73 previously ordered. An amendment to that petition requested the name of Roland J. Bellard, attorney for appellee, be included along with the name of the appellee. As a commissioner’s deed had already been issued to appellant the petition asked that both Bellard and appellee be deemed to have an equitable lien on the property for their distributable share. In a response to the petition filed on April 7, 1978 the appellant conceded there was an additional balance distributable for the appellee’s interest in the land, but alleged appellee was more than 12 weeks in arrears on the weekly child support payments the appellee had been ordered to pay to appellant for the support of the three children born of the marriage. The response alleged the deed from appellee to his attorney, Bellard, dated September 19, 1977, purporting to convey an undivided one-half interest in the property was given after appellee was served with notice of this action, that the court should declare a constructive trust for the use and benefit of the children over the monies representing the net proceeds for appellee’s interest in the property. The report of the attorney ad litem reflects the appellee received the notice of suit with copy of the complaint three days prior to the date of the deed to Bellard. On July 11, 1978 the court entered judgment correcting the prior order of distribution by awarding Roland J. Bellard judgment for the net additional sum of $6,914.25 with interest at 6% from February 14, 1978, declaring a lien on the land and ordering sale of the land if the judgment should not be paid in thirty days. The judgment made no order as to the appellant’s petition to have a constructive trust declared upon the net funds from the sale of appellee’s interest in the property. We find the final order of the court, dated July 11, 1978 accurately corrected the amount distributable for appellee’s net interest in the sale proceeds except for any set-off to which appellant was entitled for any arrears in child support due appellant from the appellee. This appeal, being from the chancery court, is heard de novo in this court. The court should have treated the petition for a constructive trust as a petition to permit appellant to have a set-off for any delinquent child support payments to date of judgment against the $6,914.25 balance of net proceeds distributable to appellee and/or his successor in title. Roland J. Bellard received the deed from the appellee for the latter’s interest in the property after the commencement of this action and represented both the appellee and himself in the action. It can be fairly inferred from the record Bellard took his deed with knowledge of the pendency of the action and burdened with such charges against the net proceeds as might arise out of the action. Also, the record is not clear as to whether Bellard took the deed in trust for appellee or just what are the respective interests of appellee and Bellard in the net proceeds. One pleading filed by Bellard prayed that both the appellee and Bellard be granted an equitable lien on the property and the names of the two be treated jointly in the action. The case is reversed and remanded with the following directions: (1) The amount of arrears in child support, if any, be determined as of July 11, 1978 and set-off against the distributable sum of $6,914.25 found in the judgment. Any delinquent amount of child support should be determined by stipulation of the parties or after hearing evidence. (2) Any residue of the amount distributable should be ordered disbursed jointly to the appellee and Roland J. Bellard, unless a written stipulation executed by said parties providing for some other method of distribution is filed or unless a hearing is held to determine who should receive the net remaining sum to be awarded. (3) Any further court decree shall reflect the sale and commissioner’s deed so as to convey all the interest of the appellee and Roland J. Bellard in the property to the appellant, Paula Dier Baldwin, and so that the pleadings filed by Bellard operate to make him a party to the suit and give the court jurisdiction over him and his interest in the property. Reversed and remanded. Pilkinton, J., concurs. Howard and Newbern, JJ., dissent.

Lyle Brown, Justice. This is an eminent domain case wherein appellee, Martha P. Darr, was awarded $50,000 for lands taken by the Arkansas State Highway Commission. The Commission appeals on the singlo, ground that there is no substantial evidence to support the verdict. Mrs. Dari', a widow, owns a farm in Conway County consisting' of 280 acres. Interstate 40 right-of-way traverses the southwest corner of her property at an angle. The taking' of 9.55 acres left a strip of 6.6 acres in the extreme southwest corner isolated from the remainder of the lands. The taking cut off Mrs. Darr’s oidy means of public access. Prior to the taking a public road led from Highway 64 to the farm and connected with it at the southwest corner. After the taking she has access by that route only to the 6.6 acres and can go no farther upon her lands because of Interstate 40. The remaining unit of 264 acres is completely surrounded by the right-of-way and other landowners. Future access to the large tract would have to be by permission of neighboring landowners or by condemnation proceedings brought by Mrs. Darr to establish a public road across her neighbors’ property. Two expert witnesses testified on behalf of Mrs. Darr. It was C. V. Barnes’ opinion that appellee had been damaged $38,500. Lloyd Pearce fixed her damages at $43,250. The only other landowner testimony considered on damages was that of Mrs. Darr. She fixed her damages at $98,500. So a verdict of $50,000 must stand or fall on the strength of Mrs. Darr’s testimony. We are committed to the majority rule that a landowner is permitted to testify because of his status as an owner. Arkansas State Highway Comm’n. v. Fowler, 240 Ark. 595, 401 S.W. 2d 1 (1966); reaffirmed in Arkansas State HighWay Comm’n. v. Drennen, 241 Ark. 94, 406 S.W. 2d 327 (1966). But as pointed out in Fowler, the weight of the landowner’s value testimony is affected by his knowledge of values. Before Mrs. Darr’s conclusion on damages can pass the substantial evidence test, her testimony must be examined to see if she gave a. satisfactory explanation for her conclusion. Arkansas State Highway Comm’n. v. Byars, 221 Ark. 845, 256 S.W. 2d 738 (1953). We also said in Byars that the determination of substantial evidence is a question of law and not of fact. Mrs. Darr’s testimony on- her damages is clearly not substantial. Her husband owned this property when they were married in 1941. She has been a, registered nurse since 1933 and presently resides and works in Bussellville, some twenty miles distant. It is not disclosed- when she resided on this land, if ever. She showed no reasonable knowledge of market values of lands in the community. She was never asked if she had an opinion as to the fair market value of her lands; she was merely asked the worth of the lands without any restriction on the meaning of “worth.” It is apparent that she had a sentimental attachment for the farm. She frankly stated tliat she would not sell it for any price “because my husband told me to keep it.” She reduced the value of the remainder from $400 to $50, whereas her expert witness, C. V. Barnes, placed a value of $220 per acre on the remainder. It was her theory that her lands were hopelessly locked off from any possible access. She forecasted no reasonable cooperation from her neighbors. That attitude was in the face of the fact that one neighbor had offered her access if she would contribute to the cost of construction. Another neighbor was permitting Mrs. Darr’s present tenant to use that neighbor’s private road for ingress and egress. Having concluded that Mrs. Darr’s testimony was not substantial, we must hold the verdict to be excessive. We have on many occasions offered the landowner in eminent domain cases the opportunity to enter a remittitur. The allowance of remittiturs by our Court is almost as old as our jurisprudence; however, the rule is not the same in all cases. We think it would be helpful to the bench and bar if the two general rules governing remittiturs were here stated in the hope that such a statement will contribute to clarity. 1. There are those cases in which no error is committed in the trial court which might affect the verdict. Yet it is sometimes shown by the record before us that a verdict clearly goes beyond the limit of just compensation. That may be caused, for example, wherein a jury misconceives the proper standard of measuring damages; or the jury may be “prompted by sympathy for the plaintiff or prejudices against the defendant.” That situation was before the Court in St. Louis, I.M.&S. Ry. v. Snell, 82 Ark. 61, 100 S.W. 67 (1907). There we find the general rule: In this case there is no error of the court to cure, and we require the plaintiff to remit down to an amount that we would be willing to approve if the jury had returned a verdict for that amount. The Snell case was cited with approval in Missouri Pac. R.R. v. Newton, 205 Ark. 353, 168 S.W. 2d 812 (1943); and in Louisiana & Ark. Ry. v. Rider, 103 Ark. 558, 146 S.W. 849 (1912). Since 1907 the same general rule enunciated in Snell has been applied in a multitude of cases. 2. A second and different rule applies where there is error in the trial court which enhances the award. The rule in such a case is exhaustively treated in St. Louis, I.M.&S. Ry. v. Adams, 74 Ark. 326, 86 S.W. 287 (1905). Succinctly stated, the holding in that case is that if the injured party is entitled to recover this Court may, in its discretion, fix an amount which it can see is clearly not excessive. This guideline and reasoning is recited: The court must be certain not to put the amount too high; for, as before stated, the defendant has no option in the matter, and must submit to the judgment allowed by the court, while the plaintiff has the right to reject the offer if he chooses to do so. There is, then, little danger in putting the amount low, and the court should always go down to a sum which it can feel certain that the defendant should pay, and which under the evidence the plaintiff is clearly entitled to recover. If it should be less than the plaintiff is entitled to under the evidence, the defendant is not injured; for, if the plaintiff accésits it, defendant then gets off with less than he was liable to pay. On the other hand, as plaintiff is not compelled to accept the amount offered, he has no ground for complaint that the court, instead of reversing the case outright on account of an error for which he is partly to blame, and forcing him to undergo a new trial, gives him the privilege of faking the sum named, and by doing so of getting some substantial compensation without the trouble and expense of further litigation. Aclams goes on to state that the Court “will be less inclined to grant this privilege [remittitur] where the errors at the trial have been gross, or where improper conduct on the part of plaintiff or his counsel has been such as to excite the prejudices of the jury.” The Adams case was cited with approval as late as the case of Ark. State Highway Comm’n. v. Watkins, 229 Ark. 27, 313 S.W. 2d 86 (1958). It was cited to support “established procedure.” The case before us fads within the second rule. That is because Mrs. Darr was not qualified to give value testimony and it is clear that her award was enhanced as a result of her opinion. The verdict was in excess of her highest value witness by $6750. This brings us to the most difficult problem of the ease and one which has given us no little concern. Can we fix an amount which (1) we are certain is not too high and (2) fix it at a figure which under the evidence the defendant should pay and the landowner is clearly entitled to recover? When we speak of being certain we are in the realm of being unmistakably correct, free from doubt, infallible. It is our conclusion that we cannot so arrive at such a figure. First, we consider the value testimony of four expert witnesses, two for each side. Mrs. Darr’s witnesses fixed damages at $43,250 and $38,500; the Commission’s witnesses fixed just compensation at $23,500 and $22,750. The testimony of her highest value witness, Lloyd Pearce, is subject to some doubt and uncertainty because he was not sure about the actual acreage in woodland; further, he did not calculate the possibility of Mrs. Darr gaining access over a ramp being built by one of Mrs. Darr’s neighbors. The testimony of her other witness, C. Y. Barnes, is more impressive and particularly so because uo serious attack is made on Ms evidence on appeal. Yet, to accept Ms figure with the certainty and clarity required by law, we would have to shut our eyes to the testimony of witnesses Mashburn and McMurroug’h for the Commission. Their qualifications are impressive and their evidence reflects a professional study of the involved lands and surrounding farms; and they fortified tlieir conclusions by what appeared to be fairly comparable sales. Summarizing, the testimony of Barnes, Mashburn, and McMurrough can all be classed as substantial; yet they arrived at different conclusions. For that, reason and additionally because we did not have the advantage of hearing the witnesses, we would have to speculate to fix a remittitur. Reversed and remanded.

GteieeiN Smith, C. J. From a verdict directed against appellant, who was plaintiff below, this appeal is prosecuted on the theory that the trial court erred in finding that A. .D. Froman (appellant’s brother) had independently contracted with J. R. Kelley Stave & Heading Company to operate a mill owned by the latter. The'injury occurred while appellant was standing back of an employee who was operating* an equalizing saw. Appellant testified that he had worked for the Stave Company about ten years. Just before the injury was inflicted he observed that the operator of the equalizing saw was behind' with his work. This caused a general slowing down. It was customary, in such circumstances, to help out. In the process of manufacturing staves, bolts were conveyed in a small wagon immediately behind the sawyer. The sawyer, .if unassisted, had to turn partially around to pick up the bolts, but if they were handed to him time was savécl. Appellant, on his own volition, undertook to speed the output by lending a helping hand. He says the sawyer negligently fed a bolt too rapidly against the saws. This would cause the teeth to clog, and dust which ordinarily followed past the carriage and into a chute beneath the carriage table would be misdirected; or, in the alternative, if errant sawdust did not in the manner thought probable by appellant cause his injury, then bark or a splinter was thrown from the bolt with such violence that appellant could not avoid being struck in the left eye, as a consequence of which the sight has probably been lost. Ordinarily the equalizing- saws were manned by Hall or Brown. Fred Froman (another brother) testified that at the time in question the saw was being operated by Hall. In a statement signed by appellant, Brown was mentioned as the operator. Although appellant testified he could not read or write, and that the statement was prepared by an insurance representative, he did not allege any specific inaccuracies. When asked if he had “told them those facts recited in the statement,” appellant replied: “I won’t say, because I don’t remember; part of it might be true and.part of it might not.” The part that might not be responsive was not explained. On direct examination A. D. Froman testified that he was working for the Stave Company; payrolls were made up and the men -were paid at Shackleford’s store at DeWitt, not far from the mill; witness was doing piece work for the Stave Company; had no-contract for a definite period; was not. employed to maké any specified number of staves; the Company had a right to discharge him at any time; Hudkins Avas general manager for the Stave Company; staves Avere made according to Hudkins ’ instructions. On cross-examination Froman testified he Avas paid $5 per thousand for staves; the Company bought the bolts; Avitness hired the men who Avorked under him, and could discharge them. The question was asked: “Did Hudkins have anything to do with [employing and discharging] the men?” His reply was: “'Not a thing.” “Q. Who owned the property — the stave mill? A. J. R. Kelley Stave & Heading Company. Q. You operated it? A. Yes, sir. Q. Mr. Hudkins had nothing to do Avith the operation of it? A. No, sir. Q. What did he do? A. He Avas supervisor of the mill; he bought the bolts and timber and loaded out the staves. Q. You did have charge of running, the machinery and making the staves out of the bolts? A. Yes, sir. ... I paid my men by the thousand. ... I made out the payroll and [the men] were paid off at the store. Q. You stated a while ago that the J. R. Kelley Stave & Heading Company paid them; was that for your 'benefit? A. They paid off the employees. Q. They were your employees? A. Yes, sir.” The same witness further testified that the Stave Company charged him with amounts paid employees “against the total.amount [I] received under [my] contract,” and the difference between the total sum due at $5 per thousand and deductions for the payroll would be A. H. Froman’s profit. During the week in which the accident occurred, 17,250 staves were made. The payroll was $68.97, and the Stave Company “paid the payroll off and paid me the balance. A weekly time sheet was made out, showing the names of the men who were working under witness. All were paid on a per thousand basis. Continuing his testimony, A. D. Froman said that C. M. Froman’s duties were those of a filer and millwright. [A millwright] “keeps the machinery in working order and sees to it that it is all working; files saws. He would go around over the mill from place to place looking after the machinery.” “Q. Did he supervise the men in their work? A. If they didn’t know how to do their work he showed them how. Q. Did he do that while you were gone, and while you were at the mill also? A. Yes, sir. Q. All Mr. Hud-kins did around the mill was to look after the timber and staves, and see that you turned out staves according to requirements? A. Yes, sir.” On redirect examination appellant’s attorney asked: “You didn’t pay these men at all out of your money?” The answer was: ‘ ‘ Certainly; out of my contract. ’ ’ It is conceded that the saws were in good condition. Defects with respect to any of the machinery are not alleged. Other testimony shows that at the end of each week (or when payment was desired for a specified number of staves), A. D. Froman would draw on the Stave Company at $5 per thousand. The instrument by which a transfer of funds was effectuated is referred to as a draft, and as a check; but under any classification— whether draft or check — it evidenced the amount due for a finished product manufactured by A. D. Froman; and Froman had a contract to operate the mill with means and by methods of his own adoption. Hudlrins visited the plant about once a week. It is true there is testimony that Hudlrins was superintendent of the mill, but immediately the witness amplified this assertion by explaining that such supervision consisted of buying the bolts and timber, and loading the staves. Fred Froman thought that under a contract made by the Stave Company similar to the one here shown, Hudlrins had discharged two men “some few years ago at Hunter.” Arrangement with the Stave Company at Hunter, and the plan of operation at DeWitt, were “practically the same — I know, because that was the only way my brother would .take a contract. ” ' Facts in the instant case are so similar to the facts in C. M. Farmer Stave & Heading Company v. Whorton, 193 Ark. 708, 102 S. W. 2d 79, that the rule there announced must control here. Farmer, president of the Company, testified to ownership of a number of mills. These mills were turned over to parties with whom contracts were made for their operation. The Farmer Company furnished money for use in purchasing timber and staves — “paid a certain price for staves delivered on board the cars.” It was held that Whorton was not entitled to recover for personal injuries alleged to have occurred because of faulty equipment. In a more recent case — Moore mid Chicago Mill & Lumber Co. v. Phillips, ante, p. 131, 120 S. W. 2d 722, we held that where one was employed to perform on specified terms, in a particular manner, and for a fixed compensation, and where the employer was interested only in the result to be obtained, and the method or manner of accomplishment was left solely with the party who was to perform, such employer was not liable in damages under the doctrine of respondeat superior to persons injured through negligence of the person whose duty it was to produce the results contemplated by the contract, unless, by actions subsequent to the contract, the employer’s conduct amounted to an abandonment of the relation of OAvner and contractor and created that of master and seiwant. See, also, Wilson v. Davison, ante p. 99, 122 S. W. 2d 539. The special judge correctly directed a Amrdict on •the ground that A. D. Froman Avas an independent contractor, and that appellant Avas his employee, and not the servant of appellee. We are also of the opinion that appellant assumed the risk. The judgment is affirmed. Humphreys and Mehaeey, JJ., dissent. An equalizing saw is described as “a couple of saws on each side with arms out this way [indicating']. They work on hinges. A man picks up a bolt and lays it on the arm and pushes it through there and cuts the ends off.” The effect of this operation would seem to be that the 'bolt is pushed in such manner that it passes against saws which simultaneously cut off each end. Appellant’s partial description of the accident is: “I passed [the equalizing saw operator] the bolt. It was not such a large bolt. The best I remember, he took the bolt and laid it in the carriage and the carriage went back to the trip. It was more of a swing fastened overhead, and it had two arms. He tripped this bolt. . . . When he tripped this it fed into the saw too fast, which clogged up the teeth and carried the stuff over and threw it out over the top and it hit me in the' eye. ... If the bolt had been pushed into the saw properly the accident likely would not have occurred. They have run for years and I never knew them to hurt anybody before. . . . If you don’t feed the timber in there properly it will throw dust. I have never seen one- that won’t do it.” In the Farmer Stave & Heading Company Case, Farmer had testified: “We hired these men; they took it by contract, and we would furnish them the mills and the money, and contract for them t'o make staves and heading; I was superintending the operation at the time and furnishing the mills and the money and they were operating the mills for us; we made an agreement with them to go and make these staves and give them so much a thousand for them delivered on board cars.” Asked to explain further, Farmer said: “Well, I meant this: we bought these mills; we turned these mills over to fellows to operate, and furnished them money; we gave them a certain price for staves delivered on board the cars; now, that is to what extent we operated the mills.” Again testifying, Farmer said that he or some one acting for him would occasionally go out to the mill to see how Wharton was getting along and to see that the heading was being manufactured properly; that his company did not, directly or indirectly, exercise any control or superintendency over Wharton in the operation of the mill further than to see that the heading was sawed according to specifications; that Wharton was paid no salary and thát he used the mill after suit was filed making heading and selling it to other parties.

John I. Purtle, Justice. Appellant was convicted of four separate counts of aggravated robbery. Since he had three prior felony convictions, he was sentenced to four life sentences to run consecutively. On appeal it is urged that the trial court erred in refusing to direct a verdict on two counts and that the four consecutive life sentences were an abuse of discretion and amounted to cruel and unusual punishment. The sentences were individually within the limits set by Ark. Stat. Ann. § 41-1001 (Repl. 1977) and within the trial court’s discretion as set out in Ark. Stat. Ann. § 41-903 (Repl. 1977). Also, the sentencing was in accordance with Ark. Stat. Ann. § 51-1005 (Repl. 1977). Therefore, the sentences were not invalid. We have many times held that so long as a sentence is within the statutory limits, it is not ordinarily cruel and unusual. In our opinion the trial court did not commit error as alleged and we must affirm. Appellant and a companion entered Brannen’s Fish Market in Little Rock on March 6, 1978, and pulled a handgun on one of the four persons present. They proceeded to take the money from the cash registers as well as from the individuals. It is true appellant pointed the gun only at the first victim and then became a sort of gentleman robber by standing back with the gun partially concealed under his arm while his confederate proceeded to round up the cash wherever he could find it. The four individuals were herded into another room where they stayed a few minutes. Upon their return to the original area, it was discovered the two ladies’ purses had been pilfered and money and other items were missing, as were the gentlemen robbers. Before having the victims leave the cafeteria area, the intruders had relieved the two men of their billfolds. The facts are hardly in dispute other than all of the victims described appellant in slightly different terms and perhaps did not agree precisely on the scenario as it progressed. He was positively identified by at least three of the victims. Appellant contends that due to the fact that he was courteous and did not point his pistol at the ladies, there was no aggravated robbery. Ark. Stat. Ann. § 41-2102 (Repl. 1977) states: (1) A person commits aggravated robbery if he commits robbery as defined in Section 2103 (§ 41-2103) and he: (a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or Therefore, there is no validity to this contention. Also, see Rust v. State, 263 Ark. 350, 565 S.W. 2d 19 (1978). Circumstantial evidence is sufficient to support a conviction if it excludes every other reasonable hypothesis. Henley v. State, 255 Ark. 863, 503 S.W. 2d 478 (1974). We think the evidence here fits that category. Four life sentences are not cruel and unusual if two death sentences are not, and we have so held. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978). Appellant’s contentions are all fully answered in Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800 (1965), where we held against all points argued here. Affirmed. Harris, C.J. not participating.

John I. Purtle, Justice. Appellee was awarded judgment in the Polk County Circuit Court for damages to automobiles allegedly caused by the negligence of the Kansas City Southern Railway Company. The appellant contends the court should have directed a verdict at the close of the appellee’s case and, further, that the verdict is not supported by substantial evidence. Appellant’s motion for a directed verdict was renewed at the close of all the evidence and again denied. The two questions to be answered by this Court are whether the court erred in refusing to grant appellant’s motions for directed verdict and whether or not the verdict was supported by substantial evidence. We find that the court did not err in refusing to grant a verdict in favor of appellant but there was error in the manner of awarding the judgment. Therefore, the case will be reversed and sent back for further proceedings. Appellee claims his automobiles were damaged during the summer of 1977 by the agent, servants, or employees of the railway causing gravel and railroad spikes to be thrown from their track into the windshield and the bodies of three automobiles. The automobiles were situated about 75 feet from the railroad in Mena, Arkansas. At this point the track is about 25 feet higher than the lot. The automobiles, which have been described as special interest automobiles, were apparently damaged when gravel and spikes from the railroad were thrown into them. Two of the automobiles were 1939 models and one was a 1957 model. There is no dispute that the spikes and gravel were in, on and around the automobiles when inspected by the appellee in October of 1977. Neither is it disputed that the gravel was the same type as that on the nearby railroad or that the spikes were those commonly used in the maintenance and upkeep of railroads. The evidence relating to damages is quite confusing. The automobiles apparently were not antiques but were what is termed special interest vehicles. This would tend to increase their value over automobiles which were not of special interest. During the trial evidence of the estimated cost of repairs was introduced. Also testimony from witnesses giving a value of the automobiles some two or three years prior to the accident and up to one year after the accident was presented. At the close of the appellee’s case the appellant moved for a directed verdict which was denied. Thereafter the appellant presented testimony which, in fact, showed the railroad had operated a bush hog along its tracks in that area about one month before the damages were discovered. We first discuss the question of whether the court erred in failing to direct a verdict for the appellant. The motion was first made at the close of the appellee’s testimony. The motion was overruled by the court. Thereafter the appellant presented evidence in defense of the claim. On appeal it is not important whether the court was right or wrong in refusing to grant the first motion for a directed verdict because the appellant subsequently presented evidence. If there were evidence produced by the appellant, or which grew out of the defense of the case, sufficient to support a verdict, the court was correct in overruling the motion for a directed verdict at the close of all the evidence. Such an issue was considered by this Court in the case of Grooms v. Neff Harness Co., 79 Ark. 401, 96 S.W. 135 (1906). In a rehearing on the Grooms case this Court stated: The defendant may, however, at the close of the plaintiff’s evidence, test its legal sufficiency by a request for a peremptory instruction in his favor. If, after a denial of the request, he introduces evidence which, together with that introduced by the plaintiff, is legally sufficient to sustain the verdict, he waives the error of the court in refusing to give the instruction. To the same effect see Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S.W. 2d 306 (1963). The appellant introduced evidence showing it had operated a bush hogging machine in the area shortly before the damages were discovered by the appellee. Facts introduced by the appellee indicated the vehicles were damaged by spikes and gravel from the railroad. These facts, and other evidence, are sufficient to support a verdict even though the facts were all circumstantial. It is not necessary to have direct evidence in order to support a verdict. We have on numerous occasions held that a well-connected train of circumstances is as valuable to the jury in reaching a verdict as that of direct evidence. We have even stated that such circumstantial evidence sometimes outweighs opposing direct testimony and any issue of fact may be established by circumstantial evidence when the circumstances are such that reasonable minds might draw different conclusions. Woodward v. Blythe, 246 Ark. 791, 439 S.W. 2d 919 (1969). We have also held, in determining the legal sufficiency of evidence, the testimony of a party to an action who is interested in the result will not be regarded as undisputed. Bridges v. Shapleigh Hardware Co., 186 Ark. 993, 57 S.W. 2d 405 (1933). We view the evidence on appeal in the light most favorable to the appellee and under the circumstances we cannot say as a matter of law that the evidence in this case is insufficient to support a verdict. The measure of damages used by the court presents a different situation. The trial court, sitting as a jury, was obviously aware of the correct measure of damages and stated it to be the value of the vehicles immediately before the loss, less the value of the vehicles immediately after the loss. However, in reaching a decision on the amount of damages, the court failed to abide by this rule. We are not sure as to the exact method used by the court in reaching the verdict on damages. However, there was evidence concerning the value of the automobiles two or three years prior to the accident and their value a year after the accident. Also, there was evidence of the cost of repairs. At one point the court sustained the objection of the value prior to the accident because of remoteness in time. However, in reaching a decision it appears this testimony was actually considered. We do not find anywhere in the testimony evidence of the value of the vehicles immediately before and immediately after the accident. Ark. Stat. Ann. § 75-919.1 (Supp. 1977) provides that in all cases involving damages to motor vehicles the measure of damage shall be the difference between the value of the vehicle immediately before the damage occurred and after the damage occurred, plus a reasonable amount of damage for loss of use of such vehicle. We have reaffirmed this measure of damages in cases too numerous to mention. We have no alternative but to reverse the case on the measure of damages. Reversed and remanded for a new trial on all issues. Harris, C.J., and Fogleman and Hickman, JJ., concur in part and dissent in part.

Frank Holt, Justice. The appellants, Avho are brothers, were jointly charged by information with the offense of assault with intent to kill. A jury found them guilty and assessed the punishment of Bobby Gene BalleAv at fifteen years and Rodger Huey Ballew at twelve years imprisonment in the state penitentiary. From the judgments on these verdicts comes this appeal. For reversal, the appellants, through court appointed counsel, contend that the evidence is insufficient to support the verdicts. On appeal Ave must review the evidence in the light most favorable to the appellee and if there is any substantial evidence to support these verdicts then the Arerdicts must be sustained. Finley v. State, 233 Ark. 232, 343 S.W. 2d 787 (1961). The appellant, Bobby Ballew, had been “dating” Omega "Wallace Ooots, the prosecutrix, for about a year. FAentuallv, Mrs. Cools informed him that she desired to return to her children’s father from Avhom she Avas divorced. The appellant threatened, on several occasions, to kill her, if this should happen. The night before the alleged assault, she and this appellant argued most of the night at her house about her intention to return to her former husband. Bobby Ballew again repeated his threat to kill her. About noon the following day he left her house. Both appellants had spent the night there. About 2:00 A.M. tire next day both appellants, appeared at a friend’s house and borrowed his shotgun and some shells Avith the explanation that they Avere going to use it to go rabbit hunting. They were given several shells. Among the shells were some old ones and one containing a deer slug. They A\rere told that the latter would fire since it was a new shell. They knew that "Mrs. Coots was not at her residence and was spending tlie night at her father’s. Appellants parked their car about three blocks from the father’s house. They took the gun and walked this distance to his house where Rodger Ballew blocked on the door and called Mrs. (loots to the door telling her that his brother wanted to talk to her. Bobby Ballew then asked the prosecutrix if she was going hack to her former husband. When she ’replied affirmatively, Bobby Ballew told his brother, Rodger Ballew, “Go back of the house and make damn sure nobody comes around front where I’m at.” Rodger Ballew complied. Mrs. Coots went hack in the house and closed the door. The appellant, Bobby Ballew, shot through the door. Mrs. Coots’ father found her lying on the floor suffering from a wound from the deer slug that penetrated her side and stomach. Bobby Ballew heard what appeared to be “her scream.” The appellants fled the scene and went to a relative’s residence, got some breakfast, and prevailed upon the relative to take them to a nearby river boat landing. They were apprehended later in the day in this vicinity. In Nunley v. State, 223 Ark. 838, 270 S.W. 2d 904 (1954), we find the applicable rule of law governing- the sufficiency of the evidence in this case. There it is said: “While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would bo calculated to produce death, or great bodily hami. In determining whether or not the intent to kill should be inferred, the trier of the facts may properly consider the character of the weapon employed and the way it was used, the manner of the assault and the violence attendant thereon; the nature, extent and location on the body of the wound inflicted, jf any; the state of feeling existing between the parties at and interior to the difficulty; statements of the defendant, if any; and all other facts and circumstances tending to reveal defendant’s state of mind. [Citing cases.] It is not essential that the intent should have existed for any particular length of time before the assault, as it may be conceived in a moment. ’ ’ ’ To the same effect see Murry v. State, 209 Ark. 1062, 194 S.W. 2d 182 (1946). The distinction between an accessory and a principal is now abolished and an accessory is equally as guilty of a crime as is his principal. Ark. Stat. Ann. § 41-118 (Repl. 1964); Rush v. State, 239 Ark. 878, 395 S.W. 2d 3 (1965). In the case at bar we are of the view that there is ample evidence of a substantial nature to support both verdicts rendered by the jury. It follows that the court correctly refused to direct a verdict of not guilty requested by the appellant, Rodger Ballew, and property denied the motion of both appellants for a new trial based upon insufficiency of the evidence. Nor reversal it is further urged that the trial court erred in denying the motion to suppress the introduction of the shotgun as evidence. We cannot agree. When the officers discovered the appellants they were ordered to stop running and walk toward the officers from a distance of approximately 500 feet, with their hands raised. It was necessary for the appellants to wade a shallow “seep ditch” at a levee. At times the weeds and brush were of such a height that the appellants were partially obscured. When the appellants were approaching the. officers one of them stooped down. They were asked the whereabouts of the shotgun. The officers were told that it was nearby in a “hollow log.” It was found there contemporaneous with the arrest. It is argued that this procedure is in violation of Miranda v. Arizona, 384 U.S. 436 (1966), which requires that the accused must be warned of his constitutional rights against self-incrimination before any interrogation is begun. In other words, it is insisted that a Miranda warning should have preceded the inquiry. We have recently held that a Miranda warning is not required to be given in every instance the moment asuspect is taken into custody. Edington v. State, 243 Ark. 10, 418 S.W. 2d 637 (1967); Haire v. State, 245 Ark. 293, 432 S.W. 2d 828 (1968). In those cases we held that a spontaneous statement was admissible. In the case at bar, we think the statement that the shotgun was in a “hollow log” was in the nature of a spontaneous admission. Wo do not agree that Miranda can be construed or is intended as being applicable in these circumstances. Further, in the case at bar the officers, based upon probable cause, were effecting the legal arrest of the appellants who were fleeing from the scene of an alleged crime which had recently been committed by the use of a shotgun. In the circumstances it must be said that officers had a right to inquire of the presencio or whereabouts of the weapon for their own safety as well as to prevent escape and the destruction of evidence as being incidental to a lawful arrest. We find no merit in appellants’ contention that there was an infringement of any constitutional right, by the shotgun being thus discovered aucl used as evidence in the case at bar. It is asserted that the court erred in denying appellant Bobby Ballew’s motion to suppress his confession. The appellants both testified that they wore wet, cold, hungry, and sick; that the police told them it would go easier on them if they made a statement; that they were interrogated and signed a waiver of rights and confessions in a police dominated atmosphere, all of which rendered their statements coerced and involuntary. There was evidence contradicting these assertions. Evidence was adduced by the state that the Miranda warning was given and that appellant, Bobby Ballew, signed a “waiver of rights” before he was questioned and thereafter voluntarily signed the questioned confession. The trial court, in a Denno procedure in chambers, found that appellant, Bobby Ballew, was thirty-one years- old and had made a. voluntary statement with the knowledge and intelligence to understand the Miranda warning with reference to his constitutional rights. From our independent review of the record, we think the trial court’s ruling is sustained by the evidence. Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968); Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311 (1969). Therefore, we find no merit in this contention. It is next contended that the trial court erred in denying appellant Rodger Ballew’s motion for a severance. In his motion he asserted that he was only sixteen years of age and that a joint trial would he prejudicial to him because of his confession which contained inadmissible references to himself as well as cross-implicating references to his codefendant. The trial court ruled his statement inadmissible in the Denno proceeding. The motion for severance was denied. It is within the discretion of the trial court to permit a severance or a separate trial when defendants are jointly charged with a felony less than a capital offense. Ark. Stat. Ann. § 43-1802 (Repl. 1964). We do not disturb the refusal of a severance unless there was an abuse of discretion. Finley v. State, supra. We find no abuse of discretion in the case at bar. It is further asserted that the trial court erroneously refused appellant Bobby Ballew’s motion to discharge appellant, Rodger Ballew, as a defendant - in the case under the provisions of Ark. Stat. Ann. § 43-2118 (Repl. 1964). This motion seeks dismissal of the charges against his codefendant on the basis that his codefendant took no part in the alleged crime and that his codefendant was needed by him as a witness. In support of the motion is the affidavit of the appellant, Rodger Ballew, that he, in effect, was not guilty of the crime with which he was charged and that his codefendant desired him as a witness. Suffice it to say that this statute provides that if "the court is of [the] opinion that the evidence in regard to a particular individual is not sufficient to put him on his defense,” then the trial court is authorized to grant appellant’s motion to discharge his codefendant in order that he could be a defense witness. Trial courts must have much latitude and discretion in conducting the trial of a cause and we do not interfere unless there is a clear abuse of discretion. Pixley v. Stale, 203 Ark. 42, 155 S.W. 2d (1941). Certainly it cannot be said that the trial court abused its discretionary authority in view of the evidence adduced bj7 the State. The appellants argue that it was error for the trial court to permit, over appellants’ objection, medical testimony relative to and photographs of the wound on the victim’s body. The doctor testified about the nature and extent of the wound and identified the accuracy of the photographs portraying the same. His testimony and the accompanying photographs were proper to show the corpus delicti and to corroborate the testimony. Stewart v. State, 233 Ark. 458, 345 S.W. 2d 472 (1961). Photographs are admissible when they fairly represent the objects portrayed and aid the witness in his testimony and the jury in understanding' the evidence. Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965). In the case at bar the medical testimony and the photographs were properly admissible in evidence. It is urged for reversal that it was error for the .court to permit evidence of appellant Rodger Ballew’s "prior juvenile convictions.” The appellant took the witness stand in his own behalf. He was asked when he was last convicted of any crime. In overruling appellant’s objection, the court told the jury that if answered in the affirmative it must be considered only as affecting the credibility of appellant as a witness. This admonition was proper. Ark. Stat. Ann. § 28-605 (Repl. 1962); Stewart v. State, 240 Ark. 701, 402 S.W. 2d 116 (1966). The appellant answered that three or four years ago he had stolen a truck and burglarized a cafe. An objection was again overruled. The disposition of those acts was not elicited. We have often held that the general rule is that a defendant, on cross-examination, can be asked about specific acts of misconduct for the purpose of discrediting his testimony, subject to the right of .the witness to make an explanation in justification. Wright v. State, 243 Ark. 221, 419 S.W. 2d 320 (1967); Sullivan v. State, 171 Ark. 768, 286 S.W. 939 (1926); Trotter v. State, 215 Ark. 121, 219 S.W. 2d 636 (1949); and Skaggs v. State, 234 Ark. 510, 353 S.W. 2d 3 (1962). These inquiries and the responses given were pennissible when considered within the limitation placed upon the testimony b)' the court. In answer to a further inquiry the appellant stated that he had been sent to the Arkansas Boys’ Industrial School by his mother. Ark. Stat. Ann. § 45-205 (Repl. 1964) provides that the disposition of a juvenile case in a juvenile court proceeding cannot be used as evidence against the juvenile for any purpose in aim other court. We cannot determine from the record whether the appellant was sent to the Industrial School from the circuit court imrsuant to Ark. Stat. Ann. § 46-306 (Repl. 1964), or the juvenile court. Further, since no objection was made to this latter inquiry, we cannot consider appellant’s contention. Randall v. State, 239 Ark. 312; 389 S.W. 2d 229 (1965). The appellants finally argue that the punishment as to each appellant is excessive. We hold, as in other cases, that since there was substantial evidence to support the verdicts which were within the limits prescribed by law [1-21 years, Ark. Stat. Ann. § 41-606 (Repl. 1964)], the jury had the right and the authority to as sess those penalities. Affirmed. Fogleman, J., not participating.

Smith, J. In a suit filed April 23, 1937, appellant, Dillard, prayed the restoration of an alleged lost deed, and from a decree denying that relief is this appeal. In an excellent opinion prepared 'by the chancellor denying that relief the court correctly declared the law to be that “To establish a lost deed, evidence of the execution must be clear, concise and satisfactory.” The chancellor, being of the opinion that the testimony did not measure up to that high standard, denied the relief prayed Now, while it is true, as said by the court below, that the testimony must be “clear, concise and satisfactory,” it is not required that it be undisputed. It is sufficient if the testimony which we credit and accept as true shows clearly, concisely and satisfactorily that the deed sought to be restored had in fact been executed and delivered. We have many cases on the subject, which we shall not review and distinguish the conditions under which this relief was granted in some cases and denied in others. There are conflicts in the testimony which cannot be reconciled, but, upon a consideration of this testimony in its entirety we think the following facts clearly appear and are shown tp be true to our entire satisfaction. Over a period of several years, Dillard loaned ap-pellee, Harden, large sums of money, to secure the payment of which annual mortgages were given on several separate tracts of land the title to which was in Harden. R. D. Jones, a young inexperienced married man nineteen years old, desired to buy one of the farms owned by Harden, containing 52 acres, known as the Parsonage Place, and he applied to Dillard to assist him in its purchase. An arrangement was made whereby Harden conveyed the Parsonage Place to Jones. The deed was not delivered to Jones 'by Harden, but was delivered to Dillard for Jones, who bad paid Dillard $100 when tbe arrangement was made and tbe additional sum of $100.00 when tbe deed from Harden was delivered to Jones by Dillard. Whether the transaction occurred in this manner is the question in the case. That it did so occur appears to us to be very conclusively shown. The undisputed testimony is to the effect that the circuit clerk produced from .the court files in his office a note which had been an exhibit filed in a foreclosure proceeding brought by Dillard in January, 1929, to foreclose the last mortgage given him by Harden. Indorsed on this note were a number of-credits, one under date of January 21, 1927, as follows: “Credit 52 acres of laird to R. D. Jones, $1,000.” Upon this fact and the effect thereof the chancellor commented in his opinion as follows: “This land, with other, was mortgaged to plaintiff by Harden for a considerable sum of money. Upon transfer of title, as is contended by plaintiff, Harden was credited with $1,000, the purchase price of the land. This credit would not have been made unless plaintiff had not felt sure that Harden had, in fact, sold the land to Jones. No substantial advantage moved to plaintiff in substituting' one debtor for another where the debt was secured by the same collateral. Plaintiff would not have done this if he had not honestly believed that Harden and his wife had not conveyed a good and sufficient title to R. D. Jones.” There appears to us to be no escape from the effect of this action. Dillard had a mortgage on all of Harden’s land to secure his entire debt. He did not foreclose the mortgage as to the Parsonage Place; on the contrary, he credited the note on which the foreclosure suit was based with a thousand dollars, which was the price Jones agreed to pay for this 52 acre tract. Of course, Dillard did not convey to Jones, for he did not have the title, only Harden could convey. Dillard testified that when this credit was given, Harden delivered to him a deed, signed by Harden and wife, and properly acknowledged, to Jones, which deed he delivered to Jones when the second payment of one hundred dollars was made, leaving a balance of $800 due by Jones as purchase money. Another fact of convincing’ significance is that when the deed from Harden to Jones was delivered, thereby vesting title in Jones, a mortgage on this tract of land was given by Jones to Dillard, and the land there mortgaged was described as being the same land which Harden had that day conveyed to Jones. This mortgage was placed of record a few days after its execution. Thereafter, Jones entered into possession of the land, and remained there during the major portion of that year, .when his wife died, and he conveyed his interest to R. L. Hill. That deed was never placed of record. Hill testified that his purchase from Jones was evidenced by the indorsement and transfer to him by Jones of the deed to J ones, and he was under the impression that his deed had been made by Dillard, and not by Harden. It must be remembered that the transaction was eleven years old when the witnesses testified concerning it, and the infirmity of memory accounts, in part, for the contradictions appearing in it. Jones’ testimony is very positive to the effect that he burned the deed given to him by Harden, and he was equally positive that the deed received by him was signed by Harden and his wife. We do not regard the manner of conveyance from Jones to Hill as of controlling importance. Both testified that Jones sold the land to Hill, and that Hill entered into the possession of the land under this purchase, and remained in possession of the land for one year and paid the taxes on it for two years. Neither Jones nor Hill now claims any interest in the land. They both concede the sale and conveyance by them of their respective interests. But we regard the testimony of Jones as second in importance only to that of Dillard. That Jones was a disinterested and truthful witness is expressly conceded by appellee, and Jones’ testimony is very definite to the effect that when he purchased the land he received from Dillard a deed signed by Harden and Harden’s wife. The mortgage given by J ones to Dillard and immediately placed of record before any question had arisen, recites the facts to be, as Dillard testified they were, that Jones was giving the mortgage on lands which he had that day bought from Harden, and, as has been said, the controlling question in the case is whether Harden had conveyed the land to Jones. The testimony is undisputed to the effect that Hill bought the land from Jones or or about January 1, 1928, and paid Jones $200 in cash, which was the amount Jones had paid Dillard. On January 11, 1928, Hill and wife executed to Dillard a mortgage, on the same land for a consideration of $864. Hill did not record his deed from Jones, but Dillard did record his mortgage from Hill. The only reasonable explanation of these transactions is the one offered by Dillard — that he permitted his mortgagors to sell their interests in the Parsonage Place, but in each-instance he required their vendees to renew the security first given him by Harden against that land. On October 10,1929’, Hill and wife conveyed the land to M. K. Roberts, and on the same day Roberts and wife executed to Dillard a mortgage to secure the sum of $774.48, thus continuing the policy of permitting the mortgagors to convey the land and of requiring, their vendees to preserve Dillard’s lien on the land for the balance due on the credit which Dillard had given Harden. On January 21, 1932, Roberts and wife conveyed the land to Dillard by warranty deed for the recited consideration of $974.34, which deed was duly recorded. In the fall of 1936 Harden gave E. D. Wright a lease on the land, and Wright took possession thereof. Dillard negotiated a sale of the land and caused an abstract of the title thereto to be prepared, an examination of which disclosed that the deeds from Harden to Jones and from Jones to Hill were not of record. Dillard then attempted to procure a quitclaim deed from Harden and, failing to do so, brought this suit to have those deeds restored as muniments of title and to have his title quieted and confirmed. Harden and his wife denied that they had ever executed a deed to Jones. They testified that they had reserved this Parsonage Place as their homestead, and not only denied selling the land, but denied also that they had mortgaged it. They testified that Dillard took the acknowledgments to tlie mortgages to himself, and they denied acknowledging the mortgage or that they appeared before the officer whose certificate of acknowledgement appears on the mortgage. We do not recite the testimony relating to the acknowledgements of the various mortgages from Harden and his wife to Dillard. The Honorable Patrick Henry, later and at the time of his death the Judge of that circuit, executed the certificates of acknowledgement to three of these mortgages as a Notary Public. We entertain no doubt whatever that Harden and his wife executed and acknowledged the mortgages. However, the proper time to have raised and litigated that question was in the foreclosure proceeding in the Chancery Court when the foreclosure decree was rendered pursuant to which the lands were sold except the Parsonage Place for which the credit of a thousand dollars had been given as hereinbefore recited and which, for that reason, was not included in the foreclosure decree and sale. It does not appear that any question was then made that the mortgage had not been duly acknowledged. Harden’s testimony and that of his wife to the effect that they did not execute a deed to Jones, when considered apart from the opposing testimony carries but little weight when considered in connection with Harden’s subsequent conduct. That he owned the Parsonage Place at the time of the foreclosure decree is a fact which no one disputes,- and that it was not included in the foreclosure decree is equally certain. Yet, without objection, he permitted Jones to take possession as owner. Hill succeeded Jones in possession, and Hill was succeeded by Roberts, who conveyed the land by warranty deed to Dillard. These parties occupied .the land for ten years, during all of which time Harden made no demand for possession, or any. demand for rent, nor did he subsequently pay the taxes. Harden lived in the community for two years after Jones took, possession. He then removed to an adjoining county where he lived for five years when he returned to the vicinity of the land where he resided for two years when he ivas requested and refused to execute a quitclaim deed. It was this request for a quit claim deed winch furnished Harden with the information that there was no deed of record from him to Jones, and, in our opinion, inspired his denial that he had executed such a deed. The court helow evidently attached much importance to the statement of Dillard that he — Dillard—knew nothing about a sale 'by Harden to Jones until Jones approached him with a proposition to buy the land, and the failure of the testimony to show the circumstances of the execution of the deed by Harden and wife. 'But the testimony does show that, while the title was in Harden, Dillard had a mortg’age oil all the lands for its value; indeed, the thousand dollar credit and the proceeds of the foreclosure sale did not suffice to pay the mortgage debt. We regard it as unimportant who negotiated the sale to Jones from Harden. The controlling and undisputed fact is that Dillard gave credit for a thousand dollars on the note upon which his foreclosure proceeding was based. It is true also that the circumstances of the execution of the deed from Harden to Jones were not shown, but Dillard testified that Harden delivered to him a deed from Harden and wife to Jones, properly executed and acknowledged. Dillard did not remember definitely the name of the acknowledging officer, but stated his recollection, and Jones testified positively that Dillard gave him a deed to which the names of Harden and wife were signed. The opinion of the court recites that Jones knew, “as did most of Ms neighbors that Dillard had been the financial backer of the Hardens for some time and as such held mortgages on the real property OAvned by Harden. ’ ’ Jones was an inexperienced buyer and eAudentlv trusted Dillard to consummate the deal he — Jones—had made Avith Harden, and the delivery of the deed from Harden to Dillard for delivery to Jones was, in. legal effect, a delivery to Jones. There are certain apparent contradictions between the testimony of Dillard and Jones as to the circumstances attending the delivery of the deed by Dillard to Jones, but that may be accounted for by a consideration of the length of time Avhich had elapsed since that event oc curred. Tlie controlling question is whether Harden executed a deed to Jones, and the testimony, above recited, convinces ns that he did. Harden attempted to explain his inaction during all. die years the land was being adversely held by saying that he consulted an attorney, who "Advised me to keep quiet and see what would take place, and I acted under his instructions.” It does not appear when this advise was given, nor was the attorney called to corroborate Harden, but Harden admits that he left the county where the land is located, and removed, in 1929, to an adjoining-county where he resided for five years, and then returned to the neighborhood from which he had removed in the Pall of 1936 and placed a tenant in possession of the land, an action he could have taken years before if he, in fact, had not sold the land and was during all these years the owner thereof. In the case of Jacks v. Wooten, 152 Ark. 515, 238 S. W. 784, suit was brought to establish a title based upon an alleged lost deed which had never been recorded. In granting the relief prayed the court there said: "In determining whether a deed claimed to have been lost was executed the court might consider how long the parties asserting the claim had been in possession of the land, its value, whether the land had been held adversely to such claim, and all the surrounding circumstances. Carpenter v. Jones, 76 Ark. 163, 88 S. W. 871.” So, here, the long continued adverse possession of the land since the time when Dillard and Jones testified a deed from Harden was delivered strongly confirms the conclusion that such a deed was made and delivered. In the case of Hospital & Benevolent Ass’n. v. Arkansas Baptist State Convention, 176 Ark. 946, 4 S. W. 2d 933, relief similar to that here prayed was granted, although the testimony was as sharply conflicting as in the instant case. There the secretary of the association, who signed the deed as secretary for the association, denied having signed the deed alleged to have been lost without having been recorded, but we announced our conclusion to be that the good lady — the secretary — had merely forgotten the incident, and we found the fact to be that she had signed the deed notwithstanding her denial that she had doiie so. We have the same certainty in the instant case that the deed was executed notwithstanding numerous contradictions in the testimony. The decree of the court below must, therefore, be reversed, and it is so ordered, and the case will be remanded with directions ■ to quiet the title of Dillard against any and all claims of title on the part of Harden and his wife.

James H. Pilkinton, Judge. This is a workers’ compensation case, and the issue here is whether a claim for additional medical expenses incurred by appellee-claimant should be paid by appellants or by appellee. A hearing was held on January 31, 1979, to determine if appellee was entitled to such additional compensation benefits. At this hearing it was stipulated that appellee had sustained a compensable injury on November 15, 1972. The appellee contended that the claim was initially accepted as compensable and appellants paid benefits through August 11, 1977; that appellee incurred additional medical expenses within one year with the knowledge and consent of the appellant-employer in May 1978. Appellee contended that appellants should pay for the additional medical treatment. The appellants contended that the claim was barred by the statute of limitations. Subsequent to the hearing the law judge filed an opinion dated March 30, 1979, and this opinion was adopted by the full commission by an opinion rendered August 2,1979. It is from the decision of the Arkansas Workers’ Compensation Commission rejecting appellant’s argument that this appeal is taken. The commission held that appellee was entitled to the additional compensation benefits under the law and facts of this case. The question on appeal is whether there is substantial evidence to support the decision of the commission, resolving all inferences and doubts in favor of the claimant. Aluminum Company of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480; Jacob Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W. 2d 200; Southwestern Bell Telephone Company v. Brown, 256 Ark. 54, 505 S.W. 2d 207. The claimant-appellee introduced two statements from Dr. G. P. Schoettle. These.verify that the claimant was seen in the doctor’s office on June 1, 1977 and May 26, 1978. There was also in evidence a doctor’s report form dated September 20,1978, indicating that claimant had a myofacial strain of the back; that the treatment was heat, rest and medication; and that the patient was not discharged. The claimant testified that she had not experienced any injuries to her back other than the compensable injury in 1972. She also stated that Dr. Schoettle had been her doctor during the entire period of time, and that there was no year that she had not seen Dr. Schoettle at least once during the year for treatment. Claimant further testified that the appellant-employer was aware that she was going to the doctor because it was a requirement that she report to the employer each time before she actually went to the doctor , and that she did so report. On the particular occasion in May 1978, claimant testified she contacted the Personnel Manager, Ms. Charlsey Garrison, and advised her that she was going to the doctor. This testimony is not contradicted. The record also shows that appellee-claimant testified that Dr. Schoettle treated her with rest, medication and advised her to apply heat to her back. She stated that she carried out his instructions and applied the heat treatment at her home, and took prescription medication given by the doctor. Appellants have cited no case in point to support their contention that the statute of limitations would run in a case such as we have before us. The appellant company furnished appellee medical treatment in May 1978, as it had done since 1972. Clearly this was within one year from the date of last treatment which was in June 1977. Therefore, this case is governed by the holding in Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S.W. 2d 211. See also Heflin v. Pepsi Cola Bottling Co., 244 Ark. 195, 424 S.W. 2d 365. The commission found that the medical treatment afforded claimant in June 1977 and again in May 1978 effectively tolled the running of the statute of limitation under the facts of this case. We hold that there is substantial evidence to support the findings and decision of the commission. Therefore we affirm.

Conley Byrd, Justice. Pursuant to jury verdicts, appellant Leroy Hair was given consecutive sentences of 5 years for kidnapping, 10 years for first degree battery and 40 years for rape. For reversal he raises the issues hereinafter discussed. The record shows that appellant was the boyfriend of the victim’s sister. While the victim was baby sitting for her sister, appellant broke into the apartment, struck the victim over the head and shot her in the shoulder. He then told the children that he was going to take the unconscious victim to the hospital. When the victim regained consciousness she was in appellant’íí car at Sweet Home. When the victim was later examined at the hospital the tests performed to determine whether male sperms were in the victim’s vagina proved positive. The victim testified that she had not consciously had intercourse with a man in the last 30 days. POINT ][. Upon the foregoing evidence, we hold that the trial court correctly denied appellant’s motions for a directed verdict upon the rape and kidnapping charges. POINT II. Count III of the information charged appellant w;ith the “crime of violating Ark. Stat. Ann. § 41-1803, RAPE, committed as follows to-wit: the said defendant . . . did unlawfully and feloniously engage in sexual ¡intercourse with Eartha Phillips, by forcible compulsion against the peace and dignity of the State of Arkansas.” After the proof at tria'l showed that the victim was unconscious from being struck on the head and shot in the shoulder at the apartment until she regained consciousness at Sweet Home, the trial court in addition to instructing the jury on “for cible compulsion” also instructed the jury on rape where the: victim is “incapable of consent because he is physiucally helpless” in accordance with Ark. Stat. Ann. § 41-1803(l)(b). Since the proof came in without objection, we cannot say that the trial court abused its discretion in giving the instruction over appellant’s objection. See Ark. Stat. Ann. § 43-1006 (Repl. 1977). Furthermore, appellant has not shown any prejudice from the court’s action. POINT III. Appellant contends that the trial court erred in not instructing the jury on Sexual Abuse in the first degree, Ark. Stat. Ann. § 41-1808 (Repl. 1977), which provides: “(1) a person commits sexual abuse in the first degree if: (a) he engages in sexual contact with another person by forcible compulsion ... .” We find no merit to this contention because under the proof the victim was either raped or not raped. See Ark. Stat. Ann. § 41-105 (3) (Repl. 1977). POINT IV. Since the trial court instructed the jury upon battery in the first degree and battery in the second degree and the jury returned a verdict finding appellant guilty of battery in the first degree, any alleged error of the court in refusing to instruct on battery in the third degree is rendered harmless by the jury’s verdict. Affirmed. We agree: Harris, C.J., Holt and Purtle, JJ.

George Rose Smith, Justice. This is a workmen’s compensation proceeding involving a work-connected injury that was ultimately diagnosed as a ruptured lumbar disc. When the case was heard by the referee the claimant’s injury had healed to the greatest extent that the attending physicians thought to be possible without surgery. Morrison, the claimant, refused to submit to an operation. The commission made an award of a 60% permanent partial disability, which was affirmed by the circuit court. On appeal the question is one of first impression in Arkansas: Under our statute does the workmen’s compensation commission have discretionary authority in making an award of benefits to a claimant who refuses to undergo surgery? That question turns upon the correct interpretation of this language in our compensation law: “...where an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least two qualified physicians and where such recommended operation does not reasonably involve risk of life or additional serious physical impairment the Commission may, in fixing the amount of compensation, take into consideration such refusal to submit to the advised operation.” Ark. Stat. Ann. § 81-1311 (Repl. 1960). The claimant, a laborer, was 54 years old when his case was heard. He was using crutches at the time and testified that he was unable to return to work. Dr. Christian, an orthopedic surgeon, was similarly of the view that, without- surgery, the claimant was totally disabled: “Since [the claimant] refuses surgical treatment and this is what I think he should have I have no alternative except to release him from care. He is, as of this time, totally disabled. I would anticipate with successful disc excision and spine fusion to have reduced his disability to partial permanent disability of an estimated 15 to 20% of the body as a whole.” There was also medical testimony that the claimant’s disability, without surgery, was 20% of his body as a whole. TCe should stress at the outset that the medical testimony had reference only to functional physical disability and not to the economic disability that results From a workman’s partial or total inability to earn a living. That distinction was explained in Wilson & Co. v. Christian, 244 Ark. 132, 424. S.W. 2d 863 (1968), in this language: Thus, an injured employee who suffers a permanent partial loss of the use of his body is entitled to payment of compensation for the number of weeks the percentage of such loss bears to 450 weeks. This loss of use may consist of physical functional loss only, and its duration and extent may best be measured through physical examination by competent medical specialists. This permanent partial loss of use to the body may or may not also result in incapacity to earn the same wages received at the time of injury. An accidental injury under this subsection may result in a permanent partial disability consisting only of a partial loss of use of the body as a whole and with no change in earning capacity at all. An injured employee is entitled to the payment of compensation, however, for this loss oj use whether his earning capacity is diminished by the injury or not. Dockery v. Thomas, 229 Ark. 984, 320 S.W. 2d 257. Where the permanent partial disability consists also of an incapacity, because of the injury to earn wages as defined and set out in § 81-1302 (e), supra, such disability includes, blends in with, and is usually greater than the disability occasioned by loss of functional use only. In the ease at bar the commission’s problem was that of fixing the claimant’s compensable disability in the light of his refusal to submit to corrective surgery. Tn a carefully prepared and excellently reasoned opinion the commission first expressed the view that Morrison’s refusal to undergo an operation upon his back was not unreasonable, within the terms of the statute. We quote pertinent parts of the commission’s opinion, with the preliminary observation that we find its statements of fact to be supported by substantial evidence: From this brief review of the evidence including the testimony of claimant himself and of the doctors who examined him, it is apparent that without surgery claimant is permanently and close to totally disabled within the meaning of the Arkansas "Workmen’s Compensation Law. Claimant himself testified that he is unable to work and ... Lr. Christian, in effect, agreed with him. It is strongly insisted, however, by respondents that through successful excision of the disc material and a successful spinal fusion, claimant’s disability would be greatly diminished, and that because of his refusal to submit to such surgery, he should not be given a disability rating greater than 15 per cent to the body.as a whole. This leads us to a more careful consideration of the evidence with respect to such surgery. It is true that all three of the doctors strongly advise such surgery; but it is equally true that they are not so certain or positive as to the outcome of such surgery. For example, in his deposition, Dr. Watson was asked how much, in his opinion, surgery would improve claimant’s condition. He answered, “We are dealing with speculation. I might think that I had done a good job on him, a technically good job, and I might feel that his bona fide demonstrable physical residual disabilities were very minor. But what his attitude might be afterwards, I do not know.” • Also, Dr. Fletcher, in his deposition, while strongly urging surgery, testified that it would have been his objective with claimant, had he performed the operation, to return him to gainful employment. But, following this same testimony, he further testified in answer to the question whether he would assume that it was probable that such would be the results, “You could probably tell at the time of surgery, as to the degree of involvement and particularly the disc next to it and I think it might be determined by the findings at the time of surgery, probably, ivhether he could or couldn’t return”. In fact, respondents, on Page 7 of their brief filed with the Commission, frankly state: £ £ That is, no one — not even the examining doctors — could say with any degree of certainty what the claimant’s possibility of returning to work following an operation would be. ” Our Statute, Ark. Stats. § 81-1311, provides that where an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least two qualified physicians and where such recommended operation does not reasonably involve risk of life or additional serious physical impairment, the Commission may, in fixing the amount of compensation, take into consideration such refusal to submit to the advised operation. Respondents have asked us to construe this provision of our workmen’s compensation law to mean that in the present case claimant is not entitled to an award for any disability in excess of 1 c/o to the body as a whole. For at least two reasons we are unable to agree with respondents in this contention. The first of these, reasons is that we do not consider that this provision of our law should be con->trued as being so highly penal as to deprive in all cases an injured workman of the small compensation benefits to which the law otherwise entitles him. We must bear in mind that our statute, which is to be liberally construed in favor of the injured employee, does not itself make it mandatory that a claimant undergo a surgical operation, even upon the advice of qualified physicians, but leaves it permissive for the commission to consider such fact in fixing the amount of compensation. The statute does not require that the commission shall take such refusal into consideration, but uses the permissive term may. The only time when the commission may take such refusal into consideration is when the injured person unreasonably refuses to submit to such surgery. When can it be said that an injured person has unreasonably refused to submit to the operation? It would appear to us that we must weigh the obvious possible involvement of additional serious physical impairment, and the discomfort and inconvenience to claimant, as well as the additional cost to respondents, against the benefits to be gained from such operation. It is not only a question of whether the operation would rea sonably involve additional physical impairment, but does it hold out probable promise of improvement? It is admitted by one of the witnesses, Dr. Watson, that there arc instances of disastrous results from any kind of surgery due to many factors beyond the physical control and “it is possible that such could happeu in any given case.” As to the favorable results to be obtained from such operation, it was the opinion of both Dr. Watson and Dr. Fletcher that this would have to await the operation itself and that pending' the operation, it was problematical or speculative in this case as to whether claimant would be benefited. It was the opinion of the doctors testifying' on the question that claimant’s fears were honest and genuine. It was also their opinion that this honest and genuine fear could influence the results insofar as this claimant is concerned, even though the operation might be a technical success when judged by surgical standards. In view of all these factors and considerations, we are unwilling to say that claimant’s refusal to submit to surgery was unreasonable within the meaning of our law. Thus it will be seen that the commission first reached at least a tentative conclusion that Morrison’s refusal to submit to an operation was not unreasonable, within the meaning of the statute. Although we might end our review of the case at this point, we are not quite satisfied to do so, because the commission then wont on to base its ultimate conclusion upon the assumption that Morrison’s distaste for surgery was unreasonable. This excerpt from the opinion of the commission makes its position clear: But even if we should say that claimant’s refusal to undergo surgery was, under all the circumstances, unreasonable, this does not mean that under the statute we should arbitrarily say that his permanent partial disability does not exceed 15% to the body as a whole. To hold this we would have to be arbitrary for the simple reason that the statute itself does not enjoin this duty upon us. It merely provides that we may take such refusal into consideration. Without making it mandatory that we do so, it permits or authorizes us, if in our. judgment the facts warrant or justify, to take this into consideration and to give to it such weight as we feel from a consideration of all the facts and circumstances should be given to it. Furthermore, to agree with the contention of respondents that claimant should be given a permanent partial disability rating not to exceed 15% to the body as a whole based upon the testimony of respondents’ medical witnesses in the case would be to confuse the terms, “permanent impairment” and “permanent disability,” and would be to misconstrue the role and scope of medical responsibility in the evaluation of permanent disability. Permanent impairment, which is usually a medical condition, is any permanent functional or anatomical loss remaining after the healing period has been reached. While permanent impairment is always an important consideration in the evaluation of permanent disability, yet it is only a contributing factor and is not the sole thing to be considered. Permanent disability means incapacity because of injury, or permanent impairment, to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury. It is based upon an injury or permanent impairment which is usually a medical condition, but it is also affected by non-medical factors such as age, education, occupational skills and training, and the economic environment. The American Medical Association in its “Guides to the Evaluation of Permanent Impairment to the Extremities and Back” points out in the preface the important distinction between permanent impairment on tbe one hand and permanent disability on tbe other band. It is there stated that tbe physicians’ role in tbe evaluation of permanent disability is limited in its scope to tbe evaluation of permanent impairment or an appraisal of tbe nature and extent of tbe patient’s illness or injury. It is further pointed out that tbe evaluation of permanent disability, which is an appraisal of tbe patient’s present and probable future ability to engage in gainful activity, is an administrative and not a medical responsibility and function. See Special Edition of tbe Journal of tbe American Medical Association, Second Printing 1965, on “Guides to tbe Evaluation of Permanent Impairment to tbe Extremities and Back.” It is not tbe role or function of a doctor to state what a claimant’s permanent disability is, as. that term is defined in our law; but bis role and tbe scope of his duty are to evaluate permanent impairment. It may well be that a person has a permanent physical impairment of say 15% ; yet because of age, education, training, experience and skills may have a much greater disability when measured in terms of diminished capacity to work and earn wages. We, therefore, are of tbe opinion that respondents’ contention, that because of claimant’s refusal to undergo surgery he should be given a disability rating of not to exceed 15% to tbe body as a whole, is without merit. It was the opinion of at least two of tbe doctors testifying in this case that without surgery claimant is totally disabled. Claimant himself states that be is unable to perform any kind of gainful employment. Tbe referee, after a consideration of claimant’s age, bis lack of education, bis absence of vocational training or skill, and bis physical impairment, came to tbe conclusion that claimant suffers a permanent partial disability of 60% to the body as a whole. We are of the opinion that this finding is supported by a preponderance of the evidence and that the award of the referee should be, and is hereby, affirmed. In commenting upon the commission’s reasoning we think it appropriate to make two observations. First, we share with other courts a genuine reluctance to disturb the findings of the commission upon a matter that lies especially within the discretion of that tribunal. Larson has summarized the cases: The problem of unreasonableness of refusal, and of weighing risk against probable benefit is encountered in its most acute form when the treatment takes the form of surgery. If the risk is insubstantial and the probability of cure high, refusal will result in a termination of benefits. But if there is a real risk involved, and particularly if there is a considerable chance that the operation will result in no improvement or even perhaps in a worsening of the condition, the claimant cannot be forced to run the risk at peril of losing his statutory compensation rights. In the commonest operations presenting this problem — hernia, intervertebral disc, and amputation — -most courts will not at present disturb a finding that refusal to submit to the operation is reasonable, since the question is a complex fact judgment involving a multitude of variables, including claimant’s age and physical condition, his previous surgical experience, the ratio of deaths from the operation, the percentage of cures, and many others. The matter cannot be determined automatically as a matter of medical statistics and expert testimony. The surgeon who sees several operations every day and who testifies that the chance of fatality is only 5 percent naturally has a different point of view than the claimant who has never had a major operation and might quite und erstandably prefer to enjoy life as best lie can with Iris injury rather than take a one-in-twenty chance of being dead. [Larson, Workmen’s Compensation, § 13.22 (1968).] Secondly, we are firmly of the view that the commission did not exceed its authority in fixing the claimant’s award at a 60% permanent partial disability. It is true that the witnesses, including the claimant himself, estimated his disability as being at one or the other of two extremes: Either a 100% disability or a 20% disability. It is fair to say that there is no direct evidence fixing his disability, either functional or economic as we have heretofore explained those terms, at any percentage between the .extremes of 100% and 20%. Nevertheless, we uphold the commission’s award of a 60% permanent partial disability. Our reasoning is simple. The statute declares that when the claimant unreasonably refuses to submit to surgery the Commission may, in fixing the amount of compensation, take into consideration such refusal to submit to the advised operation. Ark. Stat. Ann. § 81-1311. We think the legislature, in saying that the commission “may” take the refusal into consideration chose its words with care. The intangible elements entering into the decision are many as both the commission and Larson supra have pointed out. In view of such considerations we are of the opinion that the commission acted within its delegated authority in choosing a middle ground between the extremes of 100% disability and 20% disability. If that is not .a correct interpretation of the statute, then we are at a loss to understand what it really means. When the claimant’s refusal to submit to surgery is reasonable, there is no problem. It is only when the refusal is unreasonable that the commission’s discretion comes into play. If the commission is absolutely bound by the opinion of the respondents’ doctors, that the operation promises a fair degree of success and involves only a slight risk, then the discretion lies with the doctors and not with the commission. That is not what the statute says. We do not think that is what it means. No doubt cases might arise involving an abuse of the commission’s wide discretion in the matter, but this is not such a ease. Affirmed. Harris, C.J., and Jones, J., dissent. Carleton Harris, Chief Justice. I disagree with the result reached by the majority. Doctors Robert Watson and Thomas Fletcher both estimated Morrison’s permanent partial disability at 20%. Dr. Waison, in his final report, stated that, if the estimate of disability were based upon Morrison’s own statement, and upon actions strictly under Morrison’s own emotional control, claimant would, presently, be considered totally disabled. He further stated, however, that an estimate of disability based on findings that can be substantiated by neurological examination would be more in the field of 20% permanent partial disability. This opinion by these doctors was a rating of disability without surgery. With surgery, all doctors, including Dr. Christian, were of the opinion that the permanent partial disability would be even less. The only evidence I find to the effect that there was total disability without prospects of any improvement, was that of the claimant himself, a man with no medical knowledge, and apparently prejudiced against doctors. Dr. Christian did state that, as of the time of the examination, Morrison was totally disabled; however, he added: “* # * I would anticipate with successful disc excision and spine fusion to have reduced his disability to partial permanent disability of an estimated 15 to 20% of the body as a whole.” Of course, no doctor can guarantee results from an operation, but it is clear that all were of the opinion that surgery would be beneficial. Doctors Watson and Fletcher both considered claimant’s refusal to have surgery to be unreasonable, and while Doctor Christian did not use those particular words, it is apparent from the record that he too holds the same view. Morrison was adamant on the subject of an operation, and said that he wouldn’t submit to surgery if “a million” doctors recommended it. Claimant testified that he was told by the doctors that there was a possibility that he might lose the use of his legs, if he had the operation. However, no doctor testified to that effect. It is apparent that Morrison does not have much use for the medical profession, and his refusal to submit to the operation is somewhat predicated on that fact. When asked why he felt that the doctors recommended surgery, he replied: “Well, they are getting paid for it. They just operate on your back and then say, Mr. Morrison, we have done all we could for you. They might do their best but they already said some do and some don’t. That was plain enough for me.” Dr. Watson commented on the proposed operation, as follows: “It is looked upon as being a simple task that one of us might do once or twice a day, or maybe do several of them a week. Time has proved it is a perfectly safe procedure. The muscles at the hack are split in a longitudinal fashion, so that they are retracted away from the backbone. There is a little ligament that runs from one lamina, which is the back of a vertebra up to the next lamina, covers an area about the size of the ball of a man’s thumb. One can remove this little piece of ligament and give an opening about the size of the ball of a man’s thumb, and through this wo work' to retract the nerve root and to take ont these pieces of fragmented disc. Sometimes the evidence of surgery is so scant that it cannot be recognized by x-ray. And as far as time of operation, it can be from thirty minutes to an hour and a half. “As far as being bedridden, we let them out of bed to go to the bathroom the next day if they want to. We customarily send them home from the hospital from five to seven days. Rarely more than seven days after surgery. Their intervals for healing depend considerably on the type of work they do and their own personalities. Some people anxiously want to return to work too soon. Maybe in a matter of four weeks, six weeks. Some are very hesitant about ever wanting to return to work. “I have so much faith in this I’ve done this surgery on personal friends, on hunting companions, on business acquaintances, and on other doctors that we are associated with.” The majority say, “If the commission is absolutely bound by the opinion of the respondents’ doctors that the operation promises a fair degree of success, and involves only a slight risk, then the discretion lies with the doctors and not with the commission. That is not what the statute says.” I agree that the discretion lies with the commission, but where all the medical proof is in accord, he., all agree that the operation involves but little, if any, risk to the patient, it seems to me that the ruling was arbitrary. Had there been medical evidence also offered that the operation was dangerous, and would result in only slight benefits to the patient’s condition, then a fact question would have been presented. But when the opinions of outstanding’ specialists are contradicted only-by the statement of the claimant, I can see no justification for awarding 60% permanent partial disability to the body as a whole. It- is my view that Morrison’s refusal to submit to the operation was completely unreasonable, and entirely unsupported by substantial evidence that such, an operation might aggravate or worsen his condition. I would reverse. J. Fred Jones, Justice. I do not agree with the majority opinion in this case. All the doctors who have examined the appellee agree that he has a rupturtd disc and is in need of surgical removal of the disc material for relief of pain, and is in need of spinal fusion for stability of the spinal column. None of the doctors say that appellee is able to do any kind of work in his present condition and the appellee says that he is not. The ■final medical estimates of functional disability leave little incentive for the appellee to accept the proposed surgery. Dr. Christian reported, on May 5, 1966, as follows: “This patient has a herniated disc and I think quite likely a ruptured disc with nerve root compression on the right side. He has x-ray evidence of almost complete collapse of the lumbosacral disc of long duration. His current disc trouble may be at that same level but I would think more likely from the level above. In any event, he has had back and severe leg pain for a month and has not responded to conservative treatment. I have recommended to him that he be hospitalized and that a lumbar myelogram be carried out to confirm the diagnosis of the disc protrusion and to determine tlxe level at which it has occurred and that this be followed by surgical excision of the disc. A man who does the type of work that he does, I should think, should have a fusion of the involved joint at the time of the disc excision and if the disc protrusion is at L-4, 5 the fusion should be extended to include the lumbosacral joint.” After the disc lesion was confirmed on myelogram and the appellee had refused the recommended and tendered surgery, Dr. Christian, on May 18, 1966, reported as follows: “Since he refuses surgical treatment and this is what I think he should have I have no alternative except to release him from care. He is, as of this time, totally disabled. I would anticipate with successful disc excision and spine fusion to have reduced his disability to partial permanent disability of an estimated 15 to 20% of the body as a whole.” Dr. Robert Watson reported on July 8, 1966, as follows: “I have been furnished with a copy of Dr. Christian’s letter of May 18, 1966, describing the myelograpliic studies as showing a likely ruptured intervertebral disc at the lumbosacral interspace on the right, and, to me, this man’s present physical picture would certainly indicate such. This man, seemingly, has been seriously disabled for an interval now of four months’ time, and I do not see much hope for any spontaneous recovery. In my opinion, this man should be operated upon. ... I agree with Dr. Christian that should this man cooperate and have surgery, likely then his disability could be reduced to an estimated 15 to 20 per cent affecting the body as a whole.” On January 24, 1967, Dr. Watson reported as follows : “My last report to you regarding this man was dated July 8, 1966. In that report, I stated to you that, based on my neurological examination and the report of Dr. Christian’s myelographic studies, this man did have a ruptured lumbar disc and should be operated upon. Also, in my report to you at that time, 1 stated this man was very firmly opposed to the thought of surgery. I have since seen and examined this man at your request in our office on January 23, 3967. Now this man enters the office on crutches. He tells me his condition is not appreciably changed over that when I saw and examined him last summer. Again, when I discussed surgery with him, he firmly refused it. If one based an estimate of disability strictly upon this patient’s own statement and upon the actions strictly under his own emotional control, one would then say this man was, at this time, totally disabled. However, if one bases evidences of disability on bona fide findings that can be substantiated by neurological examination, the estimate of disability is much less, and more in the field of 15 per cent affecting the body as a whole. Actually, I feel that much of this man’s so-called ‘disability’ is under his own emotional control. This man refuses surgery, and with his emotional makeup, one can speculate as to what sort of subjective benefit he might obtain following surgery. I feel it would be perfectly fair to the man to estimate his present permanent residual disability as being 15 per cent affecting the body as a whole, and set this present time as the interval for maximum healing. By doing so, we will give him almost a full year’s interval for healing.” There is no question, according to the record in this case, that the appellee has a herniated or a ruptured disc, and there is no question that he needs surgery. The medical reports, however, are somewhat confusing. Dr. Watson first agreed with Dr. Christian, that appellee’s total disability could be reduced to 15 or 20% by surgery, and Dr. Watson did not see much hope for any spontaneous recovery. After appellee finally and unequivocally refused to have surgery, Dr. Watson found that much of the “so-called disability” was under the appellee’s emotional control and he estimated appellee’s true permanent partial disability to be 15% affecting the body as a whole. The appellee had a perfect right to refuse the proposed surgery, but with the risk of statutory penalty to be assessed by the Commission if he unreasonably did so. Under Árk. Stat. Ann. § 81-1311 (Eepl. 1960) pertaining to medical and hospital services and supplies, is found the following: “... [W]here an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least two [2] qualified physicians and where such recommended operation does not reasonably involve risk of life or additional serious physical impairment the Commission may, in fixing the amount of compensation, take into consideration such refusal to submit to the advised operation.” In my opinion there is substantial evidence that the appellee was totally disabled for employment when he was last seen by Dr'. Watson. He was on crutches, said he ivas about the same as when last seen and this would confirm Dr. Watson’s previous opinion that he saw little hope for any spontaneous recovery. No witness has indicated that the appellee is not totally disabled from performing gainful employment in his present condition without surgery. It has almost become a matter of common knowledge that a truly ruptured disc does not heal spontaneously and that a person who has suffered one is more likely to wind np in a wheel chair without surgery than he is if he has surgery. In such a situation, when does such disability become permanent ’! Arkansas Statutes Annotated § 81-1313 (liepl, 1960) provides as follows: “The money allowance payable to an injured employee for disability shall be as follows: (a) Total Disability: In case of toted disabiliiy there shall be paid to the injured employee during the continuance of such total disability sixty-five per centum [65%] of his average weekly wages. Loss of both hands, or both arms, or both legs, or both eyes, or of any two [2] thereof shall, in the absence of clear and convincing proof to the contrary, constitute permanent total disability. In all other eases, permanent total disability shall be determined in accordance ivith the facts. (b) Temporary partial disability: In case of temporary partial disability resulting in the decrease of the injured employee’s average weekly wage, there shall be paid to the employee sixty-five peí- centum [65%] of the difference between the employee’s average tveekly wage prior to the accident and his ivage earning capacity after the injury. (c) Scheduled permanent injuries: An employee who sustains a permanent injury scheduled in this subsection shall receive, in addition to compensation for the healing period, sixty-five per centum [65% ] of his average weekly wage for that period of time set out in the following schedule: (1) Arm amputated at the elbow, or between the elbow and shoulder, two hundred [200] weeks; (22) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member. (d) Other cases: A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole which shall have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury. * * *” (Emphasis supplied.) 1 only differ with the Commission and the majority opinion as to the extent and permanency of appellee’s disability in this case. There is substantial evidence that appellee is totally disabled for gainful employment at the present time, but there is no evidence that this disability will be permanent. While appellee’s refusal to have surgery may have been unreasonable at the time he first refused, it would appear to be more reasonable now if he does only have 15% permanent partial disability in his present condition without surgery and can, at best, anticipate a 15 to 20% permanent partial disability following surgery. I am convinced that much of the difficulty arising from the use of medical reports in evidence in compensation cases lies in a difference in terminology employed. The statute distinguishes between injury and disability. Injury may result only in compensable permanent loss of use of the body or any scheduled part thereof, or injury may result in permanent total disability or temporary partial disability in addition to, and including, permanent loss of use of the body or a scheduled member. Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685; Wilson & Company, Inc. v. Christman, 244 Ark. 132, 424 S.W. 2d 863; Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S.W. 2d 41, (opinion delivered April 7, 1969). I have concluded that some confusion in the cases has been brought about by the medical examiner, the Workmen’s Compensation Commission and by this court deviating from the statutory terminology in distinguishing between permanent disability and permanent injury. In my opinion, so-called “functional disability” is not disability at all within the meaning of the statute, but is “partial loss or loss of use” within the scheduled injury section of the statute. The statute itself is somewhat ambiguous and confusing. The statute is clear on total disability, permanent total disability and temporary partial disability. It is also clear on twenty separately numbered scheduled permanent injuries. The statute then provides in separate numbered»paragraphs (21) and (22) for “total loss of use” and for “partial loss or partial loss of use” of the members of the body designated under the twenty-scheduled injuries. In recognition of injuries to parts of the body not scheduled, the statute relates those injuries to the body as a whole under a separate subsection designated “other cases” and provides that “a permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole which shall have a value of 450 weeks.” It is noted that disability is not what is scheduled under subsection (c). Permanent injuries, including partial loss or loss of use, are what is scheduled under subsection (c). So the phrase, “permanent partial disability,” as it relates to the body as a whole under the scheduled injury section of the statute, could only mean permanent injury to the body as a whole resulting, not in total or partial loss by amputation as in the case of an arm or leg, but resulting in a permanent partial loss of use of the body as a whole, the same as loss of use of an unamputated leg or arm. Tile phrase “permanent partial disability” was not inadvertently used in this section. It simply means that permanent injury resulting in a loss of use as it relates to the body as a whole, as well as permanent partial disability as it relates to the body as a whole, are both compensable and are both covered by this same section. That was the effect of our holdings in the Edens case and the Christ-man case, supra. Now returning to the case at bar, the highest estimate of permanent disability is 20% to the body as a whole on a functional, or loss of use basis, and there is substantial evidence that would sustain an award in that amount. There is no evidence at all as to appellee’s future earning capacity, and therefore, no evidence as to the extent of his actual permanent disability. If the appellee’s condition becomes worse, he should have the benefit of surgery if and when he should desire surgery at any time within the statutory period of limitations. If the appellee should decide to have surgery and his disability is greatly reduced thereby, both the appellee and the appellant should be afforded the benefit of such procedure. Appellee’s disability may or may not become partial, and it may or may not become permanent. There is substantial evidence that would support an award of 20% and certainly an award of 15% based on the loss of use of the body as a whole, but I find no evidence that would sustain an award of permanent disability at all or of temporary disability less than total. If the Commission was convinced that the appellee was unreasonable in refusing the operation, it is my opinion that it had a perfect right, in the exercise of its discretion, to award the appellee a 60% permanent disability if, and only if, there has been any substantial evidence that the appellee had a permanent disability greater than 60%. In my opinion the Commission would have the right, in the exercise of its discretion, to order a reduction in weekly benefits for an unreasonable refusal to have surgery. If the Commission did award the 60% in this case on the basis of appellee’s refusal of surgery, it is my opinion that the appellee was rewarded for refusing the surgery, rather than being penalized as the statute intended, for I find no evidence in the record that appellee’s disability, other than the 20% in the loss of use of body function, is permanent. I would reverse and remand to the Commission for an award of weekly compensation for temporary total disabilitj^ subject to change if it becomes partial, and subject also to the Commission’s right to the exercise of its proper discretion as to the unreasonableness of appellee’s refusal to have corrective surgery. (Sometimes referred to as “functional loss,” “functional disability,” “clinical loss” or “clinical disability.”)

Baker, J. In the discussion of the matters arising on this appeal the appellant will be referred to as such, or as the . Goodrich Company, and each of the appellees will be referred to generally by name, or the whole number of them as appellees. This litigation arose out of an effort on the part of all the parties concerned to revive and rehabilitate a local corporation, Finley-Turner, Inc. This corporation was doing business at tbe corner of Broadway and Capitol avenue, in the city of Little Rock, and had somewhat advantageous contracts with the Goodrich Company. The Goodrich Company supplied tires and other automobile accessories and maintained a large warehouse or distributing center in Little Rock to supply merchants in other communities. During the depression years the indebtedness owing by the Finley-Turner, Inc., to the Goodrich Company gradually built up until the result was depressing upon both creditor and debtor. The Goodrich Company became uneasy, sent representatives from the home office to make investigations, increased the line of credit, extended times of payment, made many investments, but without satisfactory results. Finley-Turner, Inc., instead of responding to the efforts made by all the parties to operate upon satisfactory business principles, continued each year to lose money and to become somewhat more greatly indebted than before. Finally Finley and Turner, two members of the Finley-Turner, Inc., extended themselves by borrowing money individually and finally by putting up their capital stock in the Finley Turner corporation. The Goodrich Company, in an effort to keep Finley-Turner, Inc., a going concern, bought the capital stock from the stockholders of the Finley-Turner, Inc., and finally the stock of both Finley and Turner was delivered over and canceled in satisfaction of debts made by them individually for the benefit of the company. Before this was done, or about that time, Finley-Turner, Inc., was owing the Goodrich Company more than $40,000. The Goodrich Company elected a majority of the directors of the Finley-Turner corporation. The operators, however, of the Finley-Turner corporation, both Mr. Finley and Mr. Turner, continued in the management and control of the company. The situation grew worse until a critical condition existed, wherein the corporation owed the Goodrich Company fifty or sixty thousand dollars, the exact figures being immaterial. Auditors of the Goodrich Company were sent to audit the books of the local corporation and at that time the entire stock of merchandise and other properties of the local corporation were gone over and valued according to what was then believed to be a true market value of all the property. It was found at this time that a considerable part of the stock of the local corporation had depreciated by reason of obsolescence. As an illustration it is said many automobile rims, which at the time of their purchase represented substantial values, had, by reason of changed devices and models, become of no practical value, except for the amount of metal that might be regarded as junk. A few of their radios were still carried upon the books of the company at their original price, though it was determined that they could not be sold for anything near such sum. Finley and Turner, the men who had originally owned a larger part of the capital stock and who had operated this establishment, helped fix this new assessment of values. This audit of the books of the company, at that time, discloses the fact not known prior to that date that even without this new assessment of values, the corporation was insolvent. This new assessment of values, however, reduced the book value of the assets nearly $25,000. There is nobody in this whole controversy that takes issue with this account on the part of Finley and Turner and the officers, or agents of the Goodrich Company, in the revaluation of the assets of the company, and in an effort to determine the true value of such assets. We think it must be conceded by all who have any knowledge of the situation that the assets of the corporation, after this revaluation process, were worth at least $25,000 less than the admitted liabilities. At that particular time business had not revived to the extent that anyone could be sure of any very great development in any new business that would aid in paying off the indebtedness. Goodrich Company was by far the largest creditor. Debts owing by Finley-Turner were canceled out by the surrender and cancellation of their stock. While this may not have been entirely proper, yet at the time it was done, nor within any reasonable time thereafter was any complaint made by any interested party. In truth it was one of the ineffectual efforts to place the local corporation upon some kind of profit-earning basis. . The corporation owed one of the local banks about $12,500 which it was unable to pay. Tbe Goodrich • Company advanced money and compromised -this indebtedness by paying for it $8,000 and increased in that manner tbe indebtedness owing it. All tbe appellees mentioned in this suit were owners - of preferred stock in tbe Finley-Turner, Inc. No dividends bad been paid them in some time. In fact, if we understand tbe record, tbe last dividends declared or paid were in 1929. It was finally decided that tbe corporation could never pay tbe Goodrich Company and pay any dividends even upon preferred stock, and that tbe only way to rehabilitate tbe corporation and put it upon a profit-earning basis was to cancel off a large part of its indebtedness and to take a large part of tbe indebtedness not canceled off and convert that into capital stock as representing tbe investment in tbe corporation by tbe Goodrich Company. 'But this plan was subject to certain objections, one of which was that it would place tbe Goodrich Company, which at that time was a creditor of tbe local corporation, in an inferior position if it took its debt in stock. One effect was to increase tbe value of tbe preferred stock without any new investment or aid from tbe preferred stockholders. Tbe Goodrich Company was unwilling to assume this inferior position and argued that either tbe preferred stockholders must surrender their stock in order that tbe corporation might be reorganized or that they would have to take such steps as might be necessary for their protection as a creditor. Finley, who bad been to that time one of those in actual control and management of the local corporation, undertook to secure a surrender of all tbe preferred stock to him as a trustee. In this be was aided by tbe officers and agents of tbe Goodrich Company. They helped him work out, prepare and deliver a letter to tbe stockholders which was accepted by tbe preferred stockholders and who in response thereto surrendered their stock. This letter written by Joe Finley was more than it purports upon its face, as a proposition from him, and that fact is so admitted and acknowledged by tbe Goodrich Company at this time. The Finley letter is as follows: “Little Rock, Arkansas “June 7, 1933. “Dr. F. W. Carriithers, “Exchange Bank Bldg., “City. “Dear Sir: “This acknowledges receipt from you of Certificate No. 102 for 40 shares of preferred stock of Finley-Turner, Inc., upon the following understanding: This stock will be transferred to my name and will he pledged with the B. F. Goodrich Rubber Company to secure advances made by the B. F. Goodrich Rubber Company to or for use of Finley-Turner, Inc. “At the present time all of the Common Stock of the Company is pledged with the B. F. Goodrich Rubber Company, and if all the outstanding Preferred Stock of Finley-Turner, Inc., can be delivered, upon the same basis, to the B. F. Goodrich Rubber Company, they have indicated their willingness to co-operate with Finley-Turner, Inc., in revamping the financial structure of our Company, by writing off a proration of the indebtedness due the B. F. Goodrich Rubber Company and by capitalizing some of Finley-Turner’s indebtedness to the B. F. Goodrich Rubber Company, in order that Finley-Turner, Inc., will be in position to again show a net profit on its operation. “From these net profits the net obligation to the B. F. Goodrich Rubber Company will be liquidated. If and when said indebtedness has been paid, the stock will be returned to me and 40 shares of new Preferred Stock will be issued to you. “Assuring you of the appreciation of all concerned for your co-operation in this instance, I am “Respectfully yours, “(signed) J. F. Finley.” Without attempting to analyze the Finley letter, which will 'be referred to hereafter as such, it is perhaps better that the subsequent developments be stated. After the preferred stock had been surrendered, leaving the Goodrich Company in the dominant position of creditor, which it had occupied at all times, it then charged off about twenty-eight or thirty thousand dollars of its indebtedness. It issued $40,000 of capital stock which was paid for by indebtedness due it by the local corporation. There was still an indebtedness of little more than $3,000 not charged off or converted into capital stock. When this development had been reached in the process of reorganization it was discovered that the new corporation had approximately thirty-one or thirty-two thousand dollars in property and merchandise assets and that its admitted indebtedness was less than $4,000. This condition would have shown an increase in assets of approximately the same value as the indebtedness charged off, and the value of the local assets, which upon a statement of assets and liabilities, would have subjected the local corporation to a large income tax, according to the experts to whom the problem was submitted, when considered upon the so-called book earnings or.increase of assets over liabilities. Such increase did not in fact exist and the company was no more able to pay a large sum in income taxes than it had been at any time previous to that date for the several years past. It was finally determined, when this situation arose, that the best method of showing and expressing the true condition of the corporation, was a complete reorganization, and in furtherance of that plan there was organized by the Goodrich Company and by Finley and Turner, the moving forces of the old corporation, a new corporation known as the Finley-Turner Tire Company, and to this new corporation was transferred the assets of the- old corporation and it did not assume any of the old debts or liabilities except the net sum of money then due Goodrich Company. About 51 per cent, of this stock was, sold after issue, as we understand the record, by the Goodrich Company to J. F. Finley and it was the understanding and agreement that after this stock was paid for by Finley from his share of the net earnings in the new corporation, or otherwise, it should be delivered to him for himself and as trustee for the preferred stockholders in the Finley-Turner, Inc. This new corporation continued for nearly a year, hnt notwithstanding the fact of its advantageous position, in that it was able to buy gasoline at lc a gallon cheaper than other local gasoline dealers, and in that it had the advantage of buying as a favored unit in the Goodrich organization, it was unable to make any profits, and during the period it functioned it lost almost an additional $10,000. There was nothing with which to pay debts. It had practically an unlimited credit with the Goodrich Company and was unable to show any progress or development during the entire period it attempted to operate as a new organization. According to the record, it seemed unreasonable to expect the Finley-Turner Tire Company to continue in business except at a loss to itself and a loss to the Goodrich Company, which had stood by and served its every requirement for additional credit, merchandise and supplies. With this loss continuing to mount and repeating the experiences of the former corporation, the Goodrich Company, which had now become practically the sole creditor and whose employees were its stockholders, took over the corporation and operated' it thereafter as the Goodrich Silvertown Stores. The several appellees filed their suits against the Goodrich Company, alleged the Finley letter and explanations made of it by officers and agents of the Goodrich Company, as a contract fixing and establishing their rights, and a breach of that contract by the Goodrich Company, and the consequent loss by such preferred stockholders of the values of the respective shares owned by each of them. The defense of the Goodrich Company was a denial of the breach of the contract and insistence upon its part that it had substantially in all respects performed each part of the agreement as set forth in the so-called Finley letter, and further that inasmuch as the capital stock of the Finley-Turner, Inc., was without value even though there had been a breach of the agreements set forth in the Finley letter, such breach had not contributed to any loss to said stockholders, inasmuch as said stock was at no time of any value for a considerable length of time prior to the surrender of it by the preferred stockholders to J. F. Finley. The foregoing statements and facts and conclusions are substantially correct, though no effort has been made to show or give any exact figures for the reason that such minute detail will in no manner be helpful in the solution of the problems presented. A considerable volume of evidence is found in the record and only that portion will be considered in stating our conclusions which we think necessary to a complete understanding of the matters in controversy. The issues were tried resulting in a jury verdict for 25 per cent, of the face value of the preferred stock owned by each of the appellees. The appeal of the Goodrich Company is a challenge to the correctness of the verdict and consequent judgments. The issues presented are largely those arising out of admitted facts and not of disputed questions of fact. Indeed, we think it may be said that every substantial fact affecting the rights of the parties to this suit is fairly stated by counsel for the respective parties' and without dispute, except the resulting declarations of law arising out of such facts as a determination of the rights of the parties. Our conclusions, therefore, will be stated as concisely as we are able after having expressed this view of the melancholy results of these large but unprofitable investments of all the parties. The Finley letter copied above is one written to Dr. F. W. Carruthers. A similar letter or receipt was delivered to each of the appellees. The only difference in the letter copied in this opinion and the one delivered to the other parties is in the name of the addressee and in the number of the stock certificate and designated shares of stock owned by the addressee. This letter or contract, as it is called in the briefs, shows that it was the intention that the preferred stock delivered over to Finley after it was transferred to J. F. Finley, would be pledged to the Goodrich Company to and for the use of Finley-Turner, Inc., so if we assume that these transfers were made in good faith, then the stock was pledged from and after the date of the transfer in 1933 to the creditor, the Goodrich Company. All the common stock had already been pledged or sold to it, and it was then agreed that if the outstanding preferred stock he delivered upon the. .same basis,'the Goodrich Company had expressed its willingness to co-operate with the Finley-Turner Company in revamping its financial structure and in writing off a proration of the indebtedness to the Goodrich Campany and in capitalizing some of that indebtedness.' We understand that the parties meant that after a surrender of this .stock, by pledging it so that it became subservient to or under the control of the Goodrich Company, the Goodrich Company would be willing to cancel or charge off as an actual loss a part of its indebtedness. The exact amount was not agreed upon, but it must be said that the understanding was such that a sufficient amount would be charged off so that Finley-Turner, Inc., would be in a position to show net profits or earnings without having to devote all such earnings to the payment of the large amount of indebtedness that had accrued, but still another unnamed amount owing to the Goodrich Company would be paid by the issuance of capital stock by the Finley-Turner Company, and this amount, though not stated, was to be a sufficient amount to leave not an unreasonable or extremely large indebtedness which would continue the insolvency of the corporation. Complaint is not made, as we understand from the argument of all the parties, that the Goodrich Company did not act in the utmost of good faith in the amount charged off, or in the amount that it considered paid by the issuance of capital stock to it. Nor is there any objection made that the amount of indebtedness remaining unpaid was out of proportion to the capital stock issued, or to the amount of assets owned by Finley-Turner, Inc. That amount was $3,865.66, which, of course, showed quite a material reduction from the more than $75,000 indebtedness that was owing at the time the Finley-Turner Tire Company was incorporated. The alleged breach relied upon by the appellees is that the agreement was from the net proceeds, the net obligation, that is to say, the $3,865.66 owing to the Goodrich Company would be liquidated and that the Goodrich Company had no right, in its operation or control of the Finley-Turner Company or the Finley-Turner Tire Company to take over the assets of the company to satisfy this net indebtedness. We do not agree with that theory or contention made on the part of appellees, who insist that it is expressed or undisputed in the language used in the contract. In the first place, all the facts disclose that Finley-Turner, Inc., was indebted in so large an amount that it was wholly insolvent and it was recognized that its ability to pay the indebtedness was hopeless. The Goodrich Company refused to charge off this indebtedness in a way that even the preferred stockholders would be in position to be preferred or have the advantage over it as a creditor. At that time, as a creditor, it had an advantageous position over even preferred stockholders and this method of having a surrender of this preferred stock and pledging the same to the Goodrich Company was intended, as to this particular part of the proceeding, to make the Goodrich Company safe as to the remaining or net indebtedness not charged off or capitalized and also by the express terms of the contract to justify the extension of further credit to enable this faltering company to continue in business. It must appear, when these facts are considered with others, including the admitted fact that during the succeeding months, almost a year after the reorganization of the Finley-Turner Company, and which operated as the Finley-Turner Tire Company, there was an additional loss of approximately $10,000. It will be remembered that J. F. Finley was one of the owners, the manager, and almost in sole or. exclusive charge of Finley-Turner, Inc., but he was the trusted agent of the preferred stockholders, in whose hands the preferred stock was delivered to be by him pledged. No bad faith, mistake, or even bad judgment is urged as to the conduct of J. F. Finley in acting under the express authority given him. It is not urged that there were any earnings by which these net debts might have been paid or that would have entitled -any stockholder to a return of his capital stock. Instead of these net debts being the only amount due, Goodrich Company was confronted with a situation whereby the advanced money added to the enormous sum charged off and represented by capital stock as unpaid indebtedness, there was a loss of about $10,000 and another year would have represented perhaps a similar amount or sum of money for continued operation. It is not urged that the .company was not permitted to operate for a sufficient length of time to be in a position to earn money upon the investment, but it is urged, for some unaccountable reason, that since the Goodrich Company could have been paid only from net earnings, as to the past-due indebtedness, it could not cease to support or continue the losing or failing corporation. There was no agreement for such continuation or indulgence on the part of the Goodrich Company, nor is there any legal obligation on the part of any creditor of the corporation to continue to support and maintain it as a losing investment or adventure in the absence of a contract so to do. At most, in this case there was an understanding or contract arising out of the Finley letter that such advances would be made as were made under the advantageous position occupied by the new corporation to enable it, if it were possible to do so, to show its ability to rehabilitate itself. J. F. Finley, the trusted agent of the preferred stockholders, continued in charge of the business and there was still no charge of bad faith or improper conduct on the part of the Goodrich Company or its officers, or agents. . We do not think any act of bad faith is proven or established in any respect against the Goodrich Company. It abused no legal right or privilege, but at that time did only what it was authorized by law to do having’ control of all the capital stock. Rightful possession of assets was delivered to it in satisfaction of the indebtedness owing to it. Finley and Turner, as individuals, have lost perhaps more than anybody else. They had been in actual charge and control. They knew all the facts and circumstances. They have charged no bad faith, but bowed to the inevitable result following the depression and lack of profitable business. Certainly at no time before the pledge of this preferred stock, for a number of years, was the capital stock worth anything at all. It is argued that the common stock was sold for 25 cents on the dollar as a book value, but it seems now to be admitted that this book value was fictitious for the reason that much obsolete merchandise was carried at original invoice prices and not at any thing approximating its actual value at the time the common stock was deemed worth,25 per cent. There never was a time after the surrender of this stock, during the continued existence of Finley-Turner, Inc., that that company was solvent. It could not have paid its debts. There was' more than a $40,000 deficit. In the reorganization the Goodrich Company put up the entire capital stock and the method of capitalizing these enormous debts is not questioned, perhaps could not be by the preferred stockholders, who, through Mr. Finley, their agent, participated therein. It was all pledged for such advancements as were made by the Goodrich Company, and if it had had any value, no doubt Goodrich Company would have resorted to that value first to have satisfied its claim. No effort has been made to show by any proof in this . record that from and after the day of the pledge of this stock by the several preferred stockholders it ever had any value whatever and appellees ’ case has wholly failed because it has shown no loss in that .respect. We present as conclusive of the factual controversy the admitted proposition that the preferred stock amounting to $6,000, was pledged for the advances, after the new organization, to. June, 1935, and that these advances amounted to several thousand dollars more than the face value of the stock. These advances have not been paid. Further, after that date, when the Goodrich Company had attempted to continue operations in its own name and right, it offered in proof the fact that it continued to lose money. This proof was held inadmissible. This state of the record, as shown by the foregoing admitted facts, must be such as to be determinative of the rights of all parties, without serious consideration of the interesting questions of law presented and argued. Appellees do not seriously urge that tire Goodrich. Company should have continued to make advances in the face of continued losses, but argue only that when it took over the assets, such taking over was a breach of the contract. We do not think so, but we consider that the foregoing factual presentation conclusively shows that even if there were such a breach, the preferred stockholders . suffered no loss as their stock was pledged for these advances and there is no way to avoid the effect of that pledge. We think the Goodrich Company, in the exercise of good business discretion, had the right to elect whether it would continue to face large losses of operation, to rehabilitate a constantly losing and failing corporation, and that the law justified it, under the facts, since it was the . owner and holder or, at least, in control of all the capital stock, in taking over all assets to apply on liabilities. The following authorities seem- to support that contention: 4 Thompson on Corporations (3rd Edition), § 2505; Phillips v. Providence Steam Engine Co., 21 R. I. 302, 43 Atl. 598, 45 L. R. A. 560; Rhea v. Newton, 262 Fed. 345. Under similar conditions the authorities seem to be practically unanimous and to the same effect. We think it clear the judgments of the circuit court are not supported by any substantial evidence; that the court erred in not directing verdicts for the appellant as to each of the appellees. The judgments are, therefore, reversed, and the actions dismissed.

George Howard, Jr., Judge. This appeal involves the construction of Article IX of the Last Will and Testament of the late Mrs. Hazel Ferguson providing for the compensation to be paid the executor for services rendered in connection with the administration of her estate. Article IX, in relevant part, provides: The appointment of my said Executor and Trustee, and the power and authority vested in him shall include also the right to receive reasonable compensation often per cent (10%) of the total gross estate as finally determined for federal estate tax purposes for his services and expenses as shall be deemed by the Probate Court to be just and equitable, ... The trial court, pursuant to a petition filed by the executor for construction of the pertinent part of Article IX held: The will is construed to provide or direct the payment of ten percent of the gross estate for estate tax purposes. ... It is ten percent of the amount claimed there, which includes expenses, for which no claim was made for that matter. ... The Federal Estate Tax Return computes the total gross estate at $624,253.44. Afee of $62,425.34 was allowed the executor which was claimed as a deductible item on the estate tax return. In Mills’ Heirs v. Wylie, 250 Ark. 703, 466 S.W. 2d 937 (1971), our Supreme Court made the following pertinent observation: . . . [T]he purpose of construction is to arrive at the intention of the testator; but that intention is not that which existed in the mind of the testator, but that which is expressed in the language of the will. Our Supreme Court has also emphasized that words and sentences used in a will are to be construed in their primary or ordinary sense so as to arrive at the real intention of the testator. Morris v. Dosch, 194 Ark. 153, 106 S.W. 2d 159 (1937); Morgan v. Green, 263 Ark. 125, 562 S.W. 2d 612 (1978). Moreover,, in interpreting a will, it is the duty of the court to apply its best judgment consistent with applicable rules of construction. Morgan v. Green, supra. Giving the following relevant words a construction in their usual and customary meaning: The appointment of my said Executor and Trustee, and the power and authority vested in him shall include also the right to receive reasonable compensation of ten per cent (10%) of the total gross as finally determined for federal estate tax purposes for his services and expenses as shall be deemed by the Probate Court to be just and equitable, . . . we are persuaded the testatrix intended that the executor shall receive ten percent (10%) of the gross estate as finally determined for federal estate tax purposes as a fee which she deemed to be reasonable compensation for services to be rendered by the executor in the administration of her estate. We are further persuaded that the words “as shall be deemed by the Probate Court to be just and equitable” modify the word “expenses” and were not meant to confer any discretionary authority on the Probate Court in setting the executor’s fees. We believe that the construction rendered by the trial court was correct as well as reasonable. Accordingly, we affirm. Affirmed. The bulk of decedent’s estate consisted of real estate located in Oklahoma. The executor was directed to reduce all assets — both real and personal property — to cash within two years. However, a parcel of land, 56 feet by 120 feet together with all buildings located on the property in Russellville, was specifically devised to two nieces. Appellants are the heirs of the testatrix’s husband, A. H. Ferguson, who predeceased the testatrix. In addition, appellants’ interest in the estate is approximately 26.8%.

George Rose Smith, Justice. Roger Dale Parker was convicted of having raped two young women who, according to the proof, were at the time college students living together in an apartment in Jonesboro. Parker received two 50-year sentences, to run consecutively. We find no merit in his six points for reversal. I. It is first argued that the court erred in refusing to permit Parker to represent himself without the assistance of counsel. At a pretrial conference on March 30, 1978, the court denied Parker’s request, as the court did not feel that it would be in Parker’s best interest to represent himself. We need not decide whether that ruling was contrary to our holding in Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975), because the court raised the point again immediately before the trial began on May 10. By that date Parker had consulted with his two attorneys for some time. After his rights had been explained Parker stated that he wanted the two attorneys to represent him. It is now argued that Parker was entitled to a reasonable time in which to make up his mind. There was no such request either by Parker or his counsel. Since Parker had been consulting with his attorneys, apparently for some weeks, and had had an opportunity to make up his mind about the desirability of their services, we find that in the circumstances he voluntarily and intelligently accepted the services of counsel in preference to attempting to represent himself. II. Before the trial court granted a defense motion that the witnesses for the State not be permitted to testify to any facts indicating that Parker was engaged in an attempted burglary when he was arrested 47 days after the asserted offenses of rape. An officer was nevertheless allowed to testify that Parker was in a “crouching” position when he was arrested. The officer further testified, however, that a pair of gloves (which were later introduced in evidence) were on the ground right in front of Parker when he was arrested. We do not see how the jury could have drawn an unfavorable inference merely from Parker’s crouching position, and it was relevant to connect him with the gloves. There was no error. III. One of the victims testified that she did not see Parker’s face during the rapes, but she identified him at a line-up by his voice. After she had pointed him out in the courtroom, defense counsel objected to this question (and inferentially to the answer) as being leading: Q. Is there any question in your mind about it? A. No, there is not. We do not regard the question as objectionable, for we do not see how it could have been asked in any other way. It can hardly be classed as leading, because, even though it was answerable yes or no, it did not suggest the answer. Jim Fork Coal Co. v. Rhotenberry, 183 Ark. 319, 35 S.W. 2d 590 (1931). IV. The asserted rapes occurred on a bed at the victims’ apartment. The investigating officers carefully folded the sheets and sealed them for delivery to the crime laboratory. When Parker was arrested 47 days later, the officers took possession of his outer clothing and the gloves that were in front of him. An expert witness for the State testified that the sheets and the clothing and gloves all contained microscopic metal flakes that were compared and found to be indistinguishable. It was argued below that the evidence should not be admitted, because it was not shown that Parker was wearing the same clothing both at the time of the rapes and at the time of his arrest. The expert testimony was relevant, however, as circumstantial evidence tending to show that the metal flakes on the sheets came from Parker’s clothing, even though it may not have been the saíne clothing that he was wearing when he was arrested. In fact, the State apparently expected to prove that similar metal flakes were obtained at the manufacturing plant in Paragould where Parker worked. No similarity was established, however, with regard to the particles found at the plant. The jury was later instructed to disregard the evidence about the particles at the plant. Even so, the similarity between the microscopic particles found on the sheets and those found on Parker’s clothing when he .was arrested had a tendency to make his identity as the rapist more probable than it would have been without that evidence. The evidence was therefore relevant. Rule 401, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Supp. 1977). It is argued, however, that the State’s failure to introduce more complete proof, such as that similar particles were found where Parker worked, was so prejudicial as to deny him a fair trial. The trouble is, there was no proper objection below to support the argument now made. There was no motion to strike the expert’s testimony about the similarity between the particles, nor was there a motion for a mistrial after the court had instructed the jury to disregard the testimony about the finding of particles where Parker worked. Apparently the defense was satisfied with the court’s rulings and thus is not now in a position to argue a point not supported by an objection. V. Before Officer Westmoreland testified about finding metal particles where Parker worked, defense counsel asked that such testimony be prohibited, on various grounds such as that a search warrant should have been obtained, that the evidence would be a surprise because it had not been indicated by discovery, and that the evidence would be irrelevant and prejudicial. The court merely ruled that the objections would be considered when the evidence was proffered by the State, as the court had no way of knowing in advance whether it would be admissible. It is now argued that the court should have prohibited the testimony in advance. The court’s ruling, in the circumstances, was entirely proper. True, the court did eventually instruct the jury to disregard the officer’s testimony, apparently because it was not sufficiently connected up, but that often happens in the course of a trial. Counsel apparently were satisfied with the court’s admonition to the jury. We find no reversible error. VI. Finally, it is argued that the State should not have been allowed to show that a green towel taken from the victims’ bathroom also contained metal flakes, because it was not shown that Parker had used the towel. In the first place, there is some indication that Parker washed up in the bathroom, so that he might have used the towel. In the second place, the important point is that the flakes were found on the sheets. That they were also on the towel is either immaterial or slightly favorable to Parker, as tending to show that he and the flakes were not necessarily connected with one another. Thus at most the possible error was harmless. Affirmed. We agree. Harris, C.J., and Byrd and Hickman, JJ.

Carreton Harris, Chief Justice. On February 9, 1959, appellant, Leo Garner, sustained a crushing injury to his left hand, which required extensive surgery, and partial amputation, the injury occurring in the course of appellant’s employment with the Dixie Cup Division of American Can Company. A bone graft was taken from the claimant’s right lower leg for the purpose of repairing the left hand, and after the surgery, Garner developed thrombophlebitis, secondary to the removal of the bone graft. Later, he developed multiple pulmonary embloi (blood clots in the lungs). This condition required ligation of the large blood vessels. Garner has continued to suffer with thrombophlebitis, and he has deep venous thrombosis in both legs. Appellant has not worked since October, 1966. The appellee, American Mutual Liability Insurance Company carried the Workmen’s Compensation In sur anee for the Dixie Cup Division of American Can- Company at the time of the injury in 1959, and records reflect that it has paid Garner approximately $8,800.00 temporary total benefits, and $4,200.00 permanent partial benefits for a total of $12,500.00, in addition to a large amount of medical expenses. On November 30, 1965, Garner sustained another injury in the course of his employment with the same employer; however, by that date, American Can Company was self-insured. The company paid Garner a total of $33.00 temporary total benefits, and medical expenses of $52.00. Both American Mutual and American Can Company denied further medical treatment and compensation benefits to appellant as of October, 1966. A hearing was conducted before a referee for the Compensation Commision on January 27, 3967, at which time the referee found, inter alia, that Garner had been paid all compensation benefits and medical expenses by American Can Company to which he was entitled as a result of the injury of November 30,' 3965; that Garner’s present condition and medical expenses were the result of his injury of February 9, 1959; that appellant had already been paid $12,500.00, the maximum allowed in compensation benefits, by appellee on account of the injury on February 9, 1959, and that the claim had been controverted by both respondents. American Mutual was ordered to pay the medical bills incurred by Garner, and Garner’s attorney was awarded the maximum attorney’s fee to be based on the amount of the medical bills. American Mutual agreed to pay the bills, but appealed from that portion of the award ■which directed the company to pay an attorney’s feet Garner cross-appealed against the insurance company only, asserting that he was entitled to more than $12,-500.00 compensation benefits, because of the 1959 injury. The 1965 injury involving the American Can Company, self-insured, was not embraced further in the proceedings after the referee’s decision. On appeal, the full commission ordered American Mutual to pay the reasonable medical expenses incurred by Garner for the treatment of an ulcer on the front of his right leg below the knee, and the company was further ordered to pay Garner’s attorney the maximum attorney’s fee based upon medical expenses so incurred, and the treatment, skin graft, and care of the ulcer. The commission then added: “The commission wishes to make clear that the attorney’s fee does not apply to the medical expenses incurred in connection with the other parts of claimant’s body that require treatment because of claimant’s thrombophlebitic condition.” Garner was denied compensation over and above the $12,500.00 previously paid to him. On an appeal to the Sebastian County Circuit Court, Fort Smith District, an order was entered affirming the opinion and award of the commission. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the court and the commission erred in denying Garner further compensation benefits from American Mutual. It is also asserted that error was committed in limiting the attorney’s fee to the medical expense incurred for treatment of the ulcer on Garner’s right leg, rather than allowing an attorney’s fee on the basis of the medical expenses incurred in connection with all parts of appellant’s body that require treatment because of the thrombophlebitic condition. We proceed to a discussion of these contentions. Appellant argues that he is entitled to receive not only the maximum of $12,500.00 mentioned in Ark. Stat. Ann. § 81-1310(a) (Repl. 1960), but is also entitled to 150 weeks’ compensation under the provisions of (5) of Sub-section (c) of Section 81-1313. It is his opinion that the sections should be construed separately, as though unrelated to each other, rather than being con-st rued together as interpreted by the commission and Circuit Court. Subsection (a) of 81-1310, before being amended in 1965, provided that: “Compensation to the injured employee shall not be allowed for the first seven [7] days’ disability resulting from injury, excluding the day of injury. If a disability extends beyond that period, compensation shall commence with the ninth [9th] day of disability. If the disability extends for a period of four [4] weeks, compensation shall be allowed beginning the first day of disability, excluding the day of injury. “Compensation payable to an injured employee for disability shall not exceed sixty-five per centum (65%) of his average weekly wage at the time of the accident, and shall not be greater than thirty-five dollars ($35.00) per week, nor less than seven dollars ($7.00) per week and shall be paid for a period not to exceed 450 weeks of disability, and in no case shall exceed twelve thousand five hundred dollars ($12,500.00), in addition to the benefits and allowances under section 11 [§ 81-1311] hereof. The minimum and maximum limitations of time and money expressed in the foregoing sentence shall apply in all cases pertaining to the payment of money compensation on account of disability.” It is then pointed out that Sub-section (c) of § 81-1.313, which deals with scheduled permanent injuries, does not use the word, “disability,” and it is asserted that >§■ 81-1310 is a section dealing entirely with compensation to be paid an injured employee for disability. Appellant’s argument is largely predicated on the 1965 amendment to 81-1310, found in the 1967 supplement as § 81-1310.1. As amended, the section provides: ‘£ Hereafter, the maximum amount to be paid in Workmen’s Compensation benefits under Initiated Act No. 4 of 1948 % 81-1349] as amended, shall not exceed sixty-five (65) per cent of a workers average weekly wage at the time of the accident, but in no event'shall a worker or his dependents receive in excess of thirty-eight dollars and fifty cents ($38.50) per week, and in no event shall the compensation period exceed 450 weeks nor shall the total amount- paid exceed fourteen thousand five hundred dollars ($14,500.00), provided that this limitation shall not apply to medical benefits as now provided by law, nor shall this limitation preclude the payment to dependents of a deceased worker of additional benefits as now provided by law, not to exceed fourteen thousand five hundred dollars ($14,500.00). Minimum compensation to be paid shall be not less than ten dollars ($10.00) per week. Hereafter, all the actual costs for medical and hospital treatment in hernia cases determined to be compensable shall be paid by the employer or by the insurance carrier for such employer. ’ ’ It will be noted that the amendment changes the maximum figure per week that could be drawn from $35.00 to $38.50, the minimum, from $7.00 per week to $10.00 per week, and the maximum amount of money that can be paid is changed from $12,500.00 to $14,500.00. However, these particular changes are not pertinent to appellant’s argument, for he recognizes that his compensation is governed by the provisions of the act which were in force at the time of his injury. It is asserted that the 1965 amendment carefully uses the language, “the maximum amount * * * shall not exceed * * * in no event shall the total amount” exceed $14,000.00. Appellant says that these restrictions are not in Section 81-1310, and he attaches great significance to that fact. In other words, he feels that the language used, “maximum amount,” and “total amount,” was intentionally employed by the General Assembly as a matter of changing the original section. It is argued that, prior to 3 965, Sections 81-1310 and 81-1313 were entirely separate, each providing separate compensation; but that the 1965 amendment (§ 81-1310.1) simply means that all benefits received under both § 81-1310.1 and 81-1313 shall not exceed a total of $14,500.00. Appellant attaches more importance to the words, “total amount,” and “maximum amount,” than we consider to be justified, and we find no legislative motive in the different words used. In the first place, while it is true that the word, “disability,” does not appear in Sub-section (c), § 81-1313, the whole section is devoted to disability. The very opening line states: “The money allowance payable to an injured employee for disability [emphasis supplied] shall be as follows * # Thereafter follow Sub-section (a), Sub-section (b), and Sub-section (c), all dealing with different types of disability. Section 81-1310 provides that compensation for disability shall be paid for a period not to exceed 450 weeks, “and in no case shall exceed“2A $12,500.00, in addition to the benefits and allowances under Section 81-1311.” This last, as previously mentioned, deals with medical and hospital services and supplies, and it is noticeable, contrary to appellant’s argument, that the section specifically points out that benefits under § 81-1311 are in addition to the $12,500.00. It would appear that, if this maximum did not include all other benefits, the legislature could just as easily have said, “in addition to the benefits and allowances under Sub-section (c), § 81-1313.” If there was any significance in the choice of words used in the 1965 amendment, we think the reason is set out in the emergency clause, which reads, as follows: ‘4 It has been found and is declared by the General Assembly that the welfare of both employer and employee is of primary interest to the public; that maximum and minimum benefits presently payable under the Workmen’s Compensation Law are inadequate due to the steadily increasing cost of living and should be increased immediately to meet said increase in the cost of living, that certain disability benefits should be clarified [emphasis supplied], and that the immediate passage of this Act is necessary in order to alleviate the aforementioned. Therefore, an emergency is hereby declared to exist, and this Act being- necessary for the preservation of the public peace, health and safety shall take effect and be in full force from and after its passage and approval.” It will be noticed that the italicized phrase uses the word, “clarified,” rather than “changed.” Rince appellant admits that the amendment clearly covers both disability and scheduled permanent injuries, the only purpose in clarifying would have been to make clear that § 81-1330 also included both. As to the second point, we are also unable to say that the commission and trial court erred. The insurance company continued, during the course of the years, to furnish medical treatment for appellant after February, 1959. At the time of the second injury, he was still being furnished this treatment, but American Mutual denied responsibility for medical bills after October, 1966. It was the view of appellee at that time that the treatment needed by Garner -was a result of the 1965 injury, thus due to be taken care of by American Can Company. On November 18, 1966, Robert Law, Branch Claim Manager for appellee, wrote the Dixie Cup Division of American Can Company relative to a bill which had been received by American Mutual in connection with the November 30, 1965, injury. In the letter, Mr. Law stated- “They [the doctors] advise us they put Mr. Garner in the hospital, as per the attached bill, which is dated October 5th, so that this is your re sponsibility and not ours. We understand that he has need for continued treatment and hospitalization in a connection avíüi the present difficulty which arose out of his November 30, 1965, accident. Since Ave are not responsible for this bill, A\Te are sending it to you so you may place it in line for payment. ’ ’ The denial of medical benefits by appellee is discussed in the commission’s opinion, as follows: “I,t is evident from the evidence (hat the controversy that arose over the payment of certain medical, doctor and hospital bills was due, at least in part, to an error or mistake on the part of Dr. F. II. Lockwood. In 1963, Dr. Lockwood began treating claimant for a thronibophlebitic condition that resulted from claimant’s admitted compensable injury on February 9, 1959, (WCC File No. A904876) at which time American Mutual was the workmen’s compensation insurance carrier for the employer. Said carrier continued to pay for the necessary medical attention occasioned by the aforesaid condition apparently until after claimant sustained another injury to his left leg when it was struck by a roll of paper on November 30, 1965, at which time the employer Avas self-insured. * * * Claimant continued working for respondent employer' up until sometime in October, 1966, when an ulcer developed on the front of his right leg below the knee. A skin graft was applied in an attempt to cure said ulcer. At the hearing before the referee on February 7, 1967, Dr. Lockwood at first testified to the effect that the ulcer on the front of claimant’s right leg below the knee Avas causally connected with the injury on November 30, 1965, as he Avas assuming that that was the site of the injury on November 30, 1965. However, on cross-examination, by counsel for the employer, the records and reports of Dr. Lockwood established that Dr. Lockwood Avas mis taken and that tlie injury on November 30, 1965, was to claimant’s left leg. After this matter was called to Dr. Lockwood’s attention, he stated that the ulcer that was found on the claimant’s right leg below tlie knee in October, 1966, had no causal relationship to the November 30, 1965, injury. To add to the confusion and to the controversy of liability of certain medical expenses, claimant testified before the referee to the effect that tlie November 30, 1965, injury was to his right leg, at the site of the ulcer, for which a sldn graft was applied after the claimant quit work in 1966. The Commission is of the opinion that the overwhelming preponderance of the evidence is that the November 30, 1965, accidental injury was to the claimant’s left leg, as is shown by the reports of Dr. Lockwood and the report of Dr. T. P. Foltz * * *. ‘ ‘ * * * The record, as a whole, establishes that the ulcer was due to the thrombophlebitic condition that resulted from the February 9, 1959, accident injury for which American Mutual is liable. The Commission is not without some sympathy for American Mutual because they were apparently misled to some degree by Dr. Lockwood although that does not negate the fact that they actually controverted the responsibility for the needed medical attention. ’' The commission then pointed out that, though American Mutual actually controverted the legal obligation to provide the needed medical attention, the controversy that arose between American Mutual and American Can Company was certainly due in part to this mistake of Dr. Lockwood, as well as a mistake on the part of the claimant, and the finding was then made that the attorney’s fee would not be based on any medical expense except that related to treatment of the ulcer. Let it be remembered that appellee had faithfully paid all medical- expenses in connection witli the 1959 injury, and at the hearing before the referee, Mr. Law announced that the company was still ready and willing to-pay the medical treatment and hospitalization, except for the specific injury of 1965. We think the circumstances set out in the commission’s opinion were due to be considered in determining the attorney’s fee. Ark. Stat. Ann. § 81-1332 (Eepl. 1960) provides that whenever the commission finds that a claim has been controverted, it shall direct that legal services be paid for by the employer or carrier in addition to compensation,- that such fees should be allowed only on the amount of compensation controverted and awarded. In Sisk v. Philpot, 244 Ark. 79, 423 S.W. 2d 871, we pointed out that a great deal of discretion is placed in the commission in approving attorney fees within the percentage limitations of the statute. In the case before us, the commission found that American Mutual Liability Insurance Company had only controverted the claim with reference to medical, doctor and hospital bills incurred by the claimant for the treatment of the ulcer on the front of his right leg below the knee, and we think there is substantial evidence to support this finding. Certainly, we are not able to say that the commission abused its discretion. Appellant contends that the issue is not one involving abuse of discretion on the part of the commission, but rather is whether American Mutual controverted the claim for medical expense. For the reasons heretofore given, we think appellant’s argument is in error, and wo are of the ojoinion that the cases cited by him are not controlling under the circumstances herein. Affirmed, This section provides for medical, surgical, hospital, and nursing service, and medicine, crutches, artificial limbs, and other apparatus as may be necessary after the injury. & 2A Our emphasis. After all, there is no requirement that the commission give the maximum attorney’s iee.

Humpheies, J. Information was filed by the prosecuting attorney in the circuit court of Drew county, on the 20th day of September, 1938, charging appellant with the crime of murder in the first degree. On the 21st of September, 1938, attorneys were appointed by the court to defend him. On the 23rd day of September the attorneys filed a motion requesting the court to commit appellant to the State Hospital for Nervous Diseases for' observation-pursuant to § 3913 of Pope’s Digest whereupon the court made the following order: “Defendant’s counsel at 2:30 p. m. September 23, 1938, asked for an order under Int. Act No. 3 to send defendant (appellant) to State Hospital for Nervous Diseases for examination for insanity. Court refuses to issue order at this time, but directs that if defendant (appellant) makes a plea of insanity that a motion to that effect be filed, and a hearing will be had thereon, when defendant (appellant) is called for arraignment.” Appellant objected and excepted to the ruling. When appellant was arraigned on September 27, 1938, he pleaded not guilty and immediately filed the following motion: “Comes Russell J. Baxter and Paul Johnson, attorneys for the defendant in the above styled cause, and pursuant to § 3913 of Pope’s Digest move the court to commit the defendant to the Arkansas State Hospital for Nervous Diseases and for reasons state: “That in 1911, Maggie Bethea, sister of the defendant, Jesse Whittington, was indicted in Bradley county for the crime of murder in the first degree and that the said Maggie Bethea interposed a plea of insanity as a complete defense to said charge; that upon the trial of the said cause the jury returned a verdict of ‘not guilty’; that attached hereto is the affidavit of B. L. Beasley, circuit clerk of Bradley county, marked Exhibit A and made a part hereof, and an affidavit of Gr. B. Colvin marked Exhibit B and made a part hereof, said affidavits both being in support of this motion; that this motion is not made for the purpose of delay but only in order that justice may be done defendant. “Wherefore, premises considered, defendant through his attorneys moves the court for an order committing the defendant, Jesse Whittington, to the Arkansas State Hospital for Nervous Diseases for observation and examination for the purpose of determining his sanity or insanity.” The facts set up in the motion were supported by the affidavits of B. L. Beasley and G. B. Colvin. The court then heard the testimony of several witnesses introduced by the prosecuting attorney to the effect that appellant was sane and overruled the motion to commit appellant to the State Hospital for Nervous Diseases for observation over appellant’s objection and exception. After the motion was overruled appellant was tried and convicted of murder in the second degree and his punishment was assessed at thirteen years imprisonment in the state penitentiary from which judgment of conviction appellant has duly prosecuted an appeal to this court. Appellant admits that only one error was committed in the case and that the court’s refusal over his objection and exception to commit him to the State Hospital for Nervous Diseases on September 23, 1938, and again on September 27, 1938, contending that § 3913 of Pope’s Digest, same being a part of Initiated Act No. 3 of 1936, Acts 1937, p. 1384, is mandatory and that under its mandate the circuit court was required to commit him to that institution for examination upon his request for such action on the part of the court and in support of the contention relies upon the following part of § 3913 of Pope’s Digest, to-wit: “Whenever a prosecution for any crime has been instituted in the circuit court by indictment or information, and the defense of insanity at the time of the trial or at the time of the commission of the offense has been raised on behalf of the defendant, and becomes an issue in the case, or the circuit judge has reason to believe that the defense'of insanity will be raised on behalf of the defendant a/iid will become an issue in the cause, or shall be of the opinion that there are reasonable grounds to believe that the defendant was insane at the time of the alleged commission of the offense with which he is charged, or has become insane since the alleged commission of such offense, the jtodge shall postpone all other proceedings in the cause and shall forthwith commit the defendant to the Arkansas State Hospital for Nervous Diseases, where defendant shall remain under observation for such time as the court 'shall direct, not exceeding one month. . . . ” In the main, the section of the digest relied upon is mandatory but before a defendant, appellant in this instance, could invoke the mandate, he should bring himself within the provisions of the section. It will be observed that said section of the digest requires that a defendant be committed to the State Hospital for Nervous Diseases for an examination as to his sanity or insanity when the defense of sanity is raised on behalf of the defendant and becomes an issue in the case or when the circuit judge has reason to believe that the defense of insanity will be .raised on behalf of defendant and -will become an issue in the cause or that the court has reason able grounds to believe that a defendant was insane at tbe time of tbe alleged commission of tbe offense with which be is charged or has become insane since the alleged commission of the offense. The record in the instant case does not show that appellant pleaded insanity as a defense nor that such defense would be pleaded or raised in behalf of appellant nor that insanity would become an issue in the cause. The record reflects that the first motion made was to commit appellant to the State Hospital for Nervous Diseases for examination without stating that such defense would be raised or without a plea of insanity, and the second motion filed in writing on the 27th of September does not suggest that appellant was insane at the time he committed the crime or after-wards, but asked that he be committed on the ground that appellant’s sister some two or- three years prior to that time had been charged with murder and was acquitted on a trial therefor. The section relied upon by appellant requires a circuit judge to commit appellant for examination to the State Hospital, for Nervous Diseases not on the mere suggestion of insanity, but in case.he notifies the court that he intends to plead insanity as a defense or in case he actually interposes insanity as a defense. If the proper construction of the section permitted the defendant at the time of the trial upon request only to be committed to the State Hospital for Nervous Diseases for examination without informing the court that he intended to plead insanity or without pleading insanity as a defense any defendant might make a suggestion that he be sent for that purpose at great expense to the state or to gain time which might work a continuance of his ease. The purpose of the statute was to furnish a means for the examination of one who should give notice to the court in apt time that he intended to plead insanity or who actually pleaded insanity or in case the court had reasonable information from some source that a defendant was insane either at the time he committed the crime or had become insane since that time. We do not think appellant brought himself within the provisions of the act relied upon. A mere suggestion of insanity is not sufficient under the terms of the statute to require the court to commit a defendant to the State Hospital for Nervous Diseases for examination as to his sanity or insanity. No error appearing, the judgment is affirmed. McIIaNey, J., dissents.

Darrell Hickman, Justice. Robert Bushong, the appellant, was convicted of possession of marijuana with the intent to deliver it and sentenced to five years imprisonment and fined $5,000.00. Bushong was charged in Fulton County, Arkansas but tried in Izard County, the court having granted a motion for change of venue. Bushong alleges four errors: First, there is a three-fold attack on his prosecution under Arkansas’ Controlled Substances Act. Bushong alleges the Act amounts to an invalid delegation of legislative authority; that the Commissioner of Narcotic and Toxic Substances has failed to comply with the Controlled Substances Act and the Administrative Procedure Act; and that the Controlled Substances Act is unconstitutional because it is arbitrary, capricious and unreasonable. Second, the State failed to call a material witness who was present during the appellant’s interrogation. Third, the court failed to suppress Bushong’s statements which, allegedly, were induced by coercion, violence and threats. Fourth, the court erred in admitting an oral statement made by the appellant to Trooper Bob Reynolds. We find no merit to any of these arguments and affirm the judgment of the trial court. The appellant put on extensive proof that the Commissioner of Narcotic and Toxic Substances had failed “to revise and republish” the schedules in the Controlled Substances Act as required by Ark. Stat. Ann. § 82-2614.3 (Repl. 1976). Also, the appellant put on evidence that the Commissioner had not complied with the Administrative Procedure Act. This argument relates to a requirement that certain information be filed with the Secretary of State and the clerks of the various circuit courts throughout the state. See Ark. Stat. Ann. § 5-703(d) (Repl. 1976). Finally, the argument is made that marijuana does not belong in the classification in which it was placed, is not a harmful substance that should be in the Controlled Substances Act, and, therefore, is unconstitutionally controlled. Because the appellant was prosecuted under a part of the Controlled Substances Act which has not been changed since it was enacted by the General Assembly, the appellant is in no position to argue that he was aggrieved by any failure on the Commissioner’s behalf to strictly follow the Administrative Procedure Act. That failure to act would be poor administration, not a defense in this case. For the same reason, the appellant has no standing to attack the Commissioner’s authority as an unlawful delegation of legislative authority. U.S. v. Westlake, 480 F. 2d 1225 (5th Cir. 1973). Neither do we believe that the Commissioner’s failure to revise and republish the schedules of controlled substances, at least where no allegation of the lack of actual notice was made, can be used as a defense to a criminal prosecution under a part of the Act as passed by the General Assembly. Compare Central Arkansas Auction Sale, Inc. v. Bergland, 570 F. 2d 724 (8th Cir. 1978). The fact that the appellant offered some evidence that marijuana does not belong in Schedule 6 does not mean the General Assembly was wrong in its classification of marijuana. Such legislation is presumed to be constitutional, State v. Baker, 56 Haw. 271, 535 P. 2d 1394 (1975), and will be upheld if supported by any rational basis. Pridgeon v. State, 266 Ark. 651, S.W. 2d 225 (1979). While the appellant offered testimony that marijuana was not as harmful as alcohol or tobacco, we cannot say that the evidence presented by the appellant is so overwhelming and uncontradicted as to convince us that the legislative act in question is arbitrary, capricious and unreasonable and, therefore, violates the due process clause and the equal protection clause of the United States Constitution. See People v. Star, 400 P. 2d 923 (Colo. 1965). A pre-trial hearing was held, as required by Jackson v. Denno, 378 U.S. 368 (1964), to determine if Bushong’s statements were voluntary. He admitted to the police officers it was his marijuana. Bushong testified that he was threatened, coerced and intimidated by police officers for several hours before he finally made a statement to two Arkansas State Policemen in Salem about 4:30 p.m. on the date he was arrested. Such an in-custody confession is presumed to be involuntary and the burden is on the State to show that the statement was voluntarily made. Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973). We make an independent determination of voluntariness of a confession based upon the totality of the circumstances. However, we do not overturn the findings of the trial court unless they are clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). Bushong’s statements were found to be voluntary by the trial court. In Smith v. State, supra, we adopted the rule that whenever an accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward, then the State has a burden to produce all material witnesses who were connected with the controverted confession or give adequate explanation of their absence. Seven police officers were called to testify at the Denno hearing regarding the voluntariness of Bushong’s statements. The State did not call a possible witness, Doug Rogers, who was a constable. The appellant objected to the State’s failure to call Rogers as a material witness and the State offered no explanation of his absence. The question presented to us is, was Doug Rogers a material witness connected with the confession; should he have been called by the State or his absence explained? In Smith v. State, supra, an Arkansas State Policeman who was accused by the defendant of coercing him and promising him leniency was not called as a witness. Neither was the stenographer called who took down the defendant’s statement and who was present during his interrogation. We held these persons were material witnesses. In the case of Smith v. State, 256 Ark. 67, 505 S.W. 2d 504 (1974), the State did not call one of two police officers who interrogated the defendant. There was evidence the confession was induced by violence, threats and coercion. Both police officers were accused of physically abusing the defendant. We held the absent police officer was a material witness. That officer signed the statement as a witness and was present when the defendant made his statement. In Northern v. State, 257 Ark. 549, 518 S.W. 2d 482 (1975), one of two police officers was not called by the State. An allegation was made by the defendant that he was physically abused by the absent officer. The State’s explanation of the officer’s absence was not satisfactory and we reversed the judgment. In Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976), the State failed to call a witness who was in jail with the defendant. The argument was made that the cellmate, as well as police officers or jailers who placed the witness in the cell, could shed some light on the defendant’s argument of an involuntary statement. We refused to extend the Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973) decision beyond its specific language. It is no excuse that a defendant fails to call the material witnesses. That burden is clearly upon the state. Northern v. State, supra. The Illinois Supreme Court has had extensive experience with this rule. In the case of People v. Sims, 211 Ill. 2d 425, 173 N.E. 2d 494(1961), cert. den. 369 U.S. 861 (1962), that Court reviewed its previous decisions and discussed the application of the rule. Illinois had substantially the same rule that we adopted in the Smith case. However, through the years they used different language in describing the rule. For example, witnesses that were required to be called by the state were described as “All the Police Department men engaged or present at the sweating,” “all the persons who had control over the defendant and are allegedly involved in the use of coercion,” and “every police officer and every other person connected with taking the confession.” The Illinois Court in Sims reviewed its rule and discussed in detail its decisions. In one case where a defendant was grilled constantly over an extended period of time, the State called only one police officer whose testimony covered only one-tenth of the period of time involved, and he did not specifically deny the alleged facts of the defendant. People v. Holick, 337 Ill. 333, 169 N.E. 169 (1929). In another case, a State’s Attorney to whom the defendant complained concerning the tactics of the police was not called. People v. Sloss, 412 Ill. 61, 104 N.E. 2d 807 (1952). These absent witnesses were determined to be material by the Illinois Court. On the other hand, a State’s Attorney who questioned the accused and took his confession was found not to be a material witness. The accused in that case said he was promised leniency. However, those promises were not made by the State’s Attorney but by a sheriff and his deputy at a time when the State’s Attorney was not present. There was no claim that the State’s Attorney made any improper inducement or that the State’s Attorney was present when it occurred. The State’s Attorney was not declared a material witness. People v. Scott, 401 Ill. 80, 81 N.E. 2d 426 (1948). In another case, several witnesses who had been present at various stages of the interrogation process were not found to be material witnesses. The court concluded, “every person who could be considered a material witness . . . was produced . . .” People v. Jennings, 11 Ill. 2d 610, 144 N.E. 2d 612 (1957). It was found unnecessary to call some police officers who were present in the police station at the time of interrogation, but who did not participate in the questioning. People v. Gavurnik, 2 Ill. 2d 190, 117 N.E. 2d 782 (1954). The Illinois Court concluded that its decisions were consistent and that the principle involved was the same. It said: The principle that emerges clearly from all these cases is that the persons who must be called as witnesses or whose absence must be explained are those persons whose testimony would be material on the issue of the voluntary nature of the confession. People v. Sims, 21 Ill. 2d 425, 432; 173 N.E. 2d 494 (1961). There is no doubt each case can differ in some respect and it becomes a question of applying the rule to facts in each case. Bushong does not claim that any coercion or improper inducement occurred when he actually made the statement about 4:30 p.m. on the day he was arrested. That statement was taken by two Arkansas State Policemen, Officers Talley and Turner. It was not disputed that they properly advised Bushong of his rights and that he admitted to them that the marijuana was his. Bushong claims that the coercion occurred after he was arrested early on the morning of the 1st of August, 1977. At about 3:00 a.m. on August 1st, Bushong and two others were surprised in the woods southwest of Mammoth Springs, Arkansas by two officers, Bob Slayton and Ernie Rose, deputy sheriffs of Fulton County. These two officers had a “stakeout” observing marijuana plants that were hung in trees to dry. Three other officers arrived shortly thereafter, Sheriff Barker, Trooper Martz and Constable Rogers. Bushong and others were held at the scene until about 9:00 a.m. Bushong testified that he was abused physically by Deputy Sheriff Slayton and Sheriff Barker. He said that Slayton grabbed his beard and struck him. He said Sheriff Barker observed this. At the time he was in a police vehicle. When asked if anyone else observed it, he said that Trooper Martz was sitting in his police car, immediately behind the car in which Bushong was sitting. He did not say any other witness observed this mistreatment. Bushong testified that he observed one of the other defendants being abused in the trooper’s car by Sheriff Barker. He said that one of the other defendants was taken down the road by the sheriff and it sounded to him as if the sheriff beat that defendant. Trooper Martz testified that he arrived shortly after the arrest and left about 9:00 a.m. During cross-examination he testified that Constable Rogers accompanied him to the scene and was there throughout this period of time and left with him. Bushong never testified that Constable Rogers observed any mistreatment of him, coerced him in any way or abused any of the other defendants in any way. All of the police officers except the constable testified and denied the allegations of coercion and mistreatment. Thát is, six officers testified. Was Rogers a material witness or was he a casual witness? We cannot conclude that he was a material witness. If we decide that he was a material witness, then we might as well say all witnesses who could possibly have witnessed anything must be called by the'State. That is an unreasonable burden to place upon the State. There must be some connection between the witness and the alleged acts of coercion or an opportunity to observe the alleged coercion. This record gives no indication that Rogers would have been a material witness in any regard except he happened to be present on the scene and might have observed something. Bushong never mentioned Rogers in his testimony. One of the other defendants, who was called as a witness, did mention Rogers and it might be inferred from that witness’, testimony that the constable, along with Martz and some others, harassed that defendant. But that would require some speculation on our part. It is not alleged that all the police officers abused the suspects or that they were all in a position to observe each alleged act of abuse. We conclude, therefore, that the trial court did not err in failing to require the State to produce Rogers, nor can we say the trial court’s decision regarding the voluntariness of the statements was clearly erroneous. Trooper Bob Reynolds testified during the trial that Bushong made a statement to him when he was transporting Bushong from the woods to Mammoth Spring. It is argued that the admission of this statement was erroneous because it surprised the appellant. (The Prosecuting Attorney said he was surprised too.) The appellant also argues a proper Miranda warning was not given and the trooper’s testimony was totally inconsistent with what he had previously told the appellant’s lawyer. Reynolds testified during the Denno hearing and when asked if Bushong made any statements to him he replied “yes” but nobody asked him what the statements were. Later, before the trial, the attorneys for Bushong took a statement from Reynolds which was recorded and in that statement Reynolds said ‘ ‘ The man didn’t tell me anything. ’ ’ Reynolds testified that he gave the Miranda warning orally to Bushong when he got in the car. However, apparently he failed to tell Bushong that interrogation must cease if at any time during the questioning the defendant wished to remain silent. Bushong did not deny that he was given his Miranda warning at the time he was arrested earlier that morning. The arresting officers said it was given. Reynolds testified that he knew that Bushong had been advised of his rights and, in fact, did not question Bushong, but Bushong simply voluntarily told him about the marijuana. Bushong’s attorney was given the opportunity to introduce into evidence the transcript of the tape recording of Reynolds’ statement and Reynolds admitted that he had made the statement that the man didn’t tell him anything. He explained during redirect-examination that he did not have his notes when he was examined by the lawyer. The appellant argues that a continuance should have been granted so that the appellant’s attorney could get the tape recording of Reynolds’ statement to impeach Reynolds’ testimony. A hearing was held on the voluntariness of the statement and the court concluded that it was voluntary. Nobody asked Reynolds what the statement was. There is no requirement that the Denno hearing must involve the details of the statement, only its voluntariness, with ample opportunity for the defense to test the burden of the State. See Jackson v. Denno, supra; Silliman v. People, 114 Colo. 130, 162 P. 2d 793 (1945). The trial court found that Bushong was properly warned of his rights and that the statement he made to Reynolds was admissible. The trial court granted Bushong’s attorney a full opportunity to impeach Reynolds’ testimony and a continuance to obtain the tape would not have materially aided the defense. We cannot say the trial court’s findings were clearly erroneous. Affirmed. Harris, C.J., not participating. Byrd, J. dissents.

John A. Fogleman, Justice. This appeal involves the title to eight certificates of deposit issued by various banks to Herman Gibson, Mema W. Gibson and Cecil L. Gibson. Mema W. Gibson (known as Wayne) and Cecil L. Gibson were the two sons of Herman, who died testate on October 12, 1976, bequeathing and devising all his property to these two sons, his only surviving children. Nora Gibson, Herman’s widow, elected to take against the will, which had nominated these two sons (by a previous marriage) as joint executors. They were appointed as such by the probate court. Mrs. Gibson filed an objection to their accounting because it failed to account for certain certificates of deposit, which she alleged were property of the estate. She then filed an action in the chancery court to determine the ownership of the certificates, which the two sons claimed as a gift from their father. Larry Boling was appointed special administrator upon petition of Mrs. Gibson to prosecute actions on behalf of Herman Gibson’s estate for the determination of the ownership of the certificates. The proceedings were consolidated for hearing. The chancellor and probate judge held that the certificates of deposit were the subject of a gift to Mema W. and Cecil L. Gibson, by their father. Appellant brings this appeal as to bank certificates of deposit of a total face value of $108,-038.14. Appellant states the following point for reversal: THE CHANCELLOR AND PROBATE JUDGE ERRED IN HOLDING THAT THE NON-NEGOTIABL1 BANK CERTIFICATES OF DEPOSIT WERE A GIFT FROM HERMAN GIBSON IN HIS LIFETIME TO HIS SONS MERNA W. GIBSON AND CECIL L. GIBSON. A. THE BANK CERTIFICATES OF DEPOSIT WERE NOT SUBJECT MATTER TO CONSTITUTE A GIFT BY DELIVERY. B. THERE WAS NO CLEAR INTENT TO MAKE AN IMMEDIATE PRESENT AND FINAL GIFT BEYOND RECALL, UNCONDITIONALLY RELEASING ALL FUTURE DOMINION AND CONTROL OVER THE CERTIFICATES OF DEPOSIT. C. IF THE CERTIFICATES OF DEPOSIT WERE PROPER SUBJECT MATTER AND IF ALL THE ELEMENTS OF A VALID GIFT WERE PRESENT IN THE DELIVERY, IT PERPETRATED A FRAUD ON THE WIDOW. A Appellant contends that because these certificates of deposit were stamped “non-negotiable,” and were not property but only representations of property or money held by banking institutions, they could not be the subject of a gift by the father who purchased them with his own money and either caused them to be made payable to him and these two sons or caused the certificates to be changed to include the two sons as payees, without ever having “designated in writing to the banking institution that the account or Certificate of Deposit is to be held in ‘joint tenancy’ ” as provided in Ark. Stat. Ann. § 67-552 (a) (Repl. 1966). He somehow concludes that the issuing bank could not have legally paid the money to them on presentation of the instrument. He reads Porterfield v. Porterfield, 253 Ark. 1073, 491 S.W. 2d 48, as holding that a delivery of certificates of deposit issued in the names of two or more persons without a designation in writing will not satisfy the elements of an immediate, present and final gift. Such a reading is not justified. The decision in Porterfield was that there was no delivery of the certificate in question and no clear and convincing evidence that there had been a gift. We did hold that all the elements of a completed inter vivos gift must be shown by dear and convincing evidence. We pointed out that there must be an actual delivery of the subject matter of the gift to the donee with a clear intent to make an immediate, unconditional and final gift beyond recall, accompanied by an unconditional release by the donor of all future dominion and control over the property so delivered. The “non-negotiable” nature of these certificates meant only that title would not pass by endorsement and delivery by the payees, or any of them, to one not a party to the Instrument. The alternate payees were the father and his two sons, named as “Herman Gibson or M. Wayne or Cecil Gibson,” or variations of the names and of the order in which they were named. All were payable to any of the payees or the survivor of either. The sums represented by these certificates were payable by the issuing bank to any one of the three named payees. Ark. Stat. Ann. § 67-521 (Repl. 1976). Cook v. Bevill, 246 Ark. 805, 440 S.W. 2d 570. Ark. Stat. Ann. § 67-552 (a) has little, if any, significance, because appellees are not claiming by right of survivorship. The certificates of deposit were subject of gift by delivery with intent to make a gift. We have said that a promissory note, or any chose in action or any other evidence of debt, may be the subject of a gift inter vivos. Pyland v. Gist, 177 Ark. 860, 7 S.W. 2d 985. A certificate of deposit falls into that category. It was classified in that respect in Basket v. Hassell, 107 U.S. 602, 2 S. Ct. 415, 27 L. Ed. 500 (1883) in these words: * * * A certificate of deposit is a subsisting chose in action and represents the fund it describes, as in cases of notes, bonds, and other securities, so that a delivery of it, as a gift, constitutes an equitable assignment of the money for which it calls. These instruments have been so considered universally. Commonwealth v. Crompton, 137 Pa. 138, 20 A. 417 (1890); Dietzen v. American Trust & Banking Co., 175 Tenn. 49, 131 S.W. 2d 69 (1939); Philpot v. Temple Banking Co., 3 Ga. App. 742, 60 S.E. 480 (1908); Annot., 40 ALR 508, 509. This contention presents us with a very difficult and delicate problem. Appellees sought to prove that a completed gift of the certificates of deposit was made to them by their father in his lifetime. They had the burden of showing, by clear and convincing evidence, that these certificates were delivered to them by their father with the clear intent to make an immediate, present, final gift beyond recall, releasing all future dominion and control. It must have been the intention of the donor that title pass immediately, and a delivery for safekeeping or for any purpose, either express or implied, other than a specific intent to part with all right, title and interest in, and all dominion and control over the certificates, would not constitute a gift. Lowe v. Hart, 93 Ark. 548, 125 S.W. 1030. The certificates were issued by various banks in Jonesboro. None of the banks at the time required the depositor to designate the payees or depositers in writing or to execute any signature card or any written document in connection with the issuance to the certificates. Some of them had originally been issued to Herman Gibson only. Later, he caused the names of his two sons to be added as payees by oral instructions. Others were originally issued to these three payees. One of them had been issued as early as June, 1973. Appellees contend that the gift to them was made on July 28, 1976. Mr. and Mrs. Herman Gibson had a safe deposit box at First Bank & Trust Company (then First National Bank) in Jonesboro. The records at that bank show that it was entered by Herman Gibson on July 28, 1976, at 9:05 a.m. Wayne Gibson, who lived in Springfield, Missouri, testified that he visited his father for two or three days in July, 1976, and that when the two ate breakfast on the morning of July 28, his father said, “We have got some business to take care of; we are going to town.” Wayne said that, on the way, his father told him that he intended to give all the certificates of deposit he had bought, and about which he had talked to Wayne over the years, to Wayne and his brother, saying he wanted to take them out of his lock box and give them to Wayne. According to Wayne, they stopped at the First National Bank and his father went inside and returned in a few minutes, handed Wayne an envelope containing the certificates and said, “These belong to you boys and I want you to have them,” and then asked Wayne what he was going to do with them. Wayne said that they crossed the street and walked toward the Citizens Bank, but, before they got to the bank, his father met someone he knew and stopped to talk. Wayne proceeded into the bank and engaged a safety deposit box through Ms. Christobel Elliott, a bank employee, who gave him two keys to the box, and accompanied him to open the box, where he used one of the keys and she used the bank’s key to open the box, into which Wayne placed the certificates. Wayne said that, as he left, he met his father, who was standing inside, near the front of the bank. Cecil Gibson testified that in June, 1976, his father had spoken of the certificates of deposit and had said to him, “I am going to give them to one of you boys, the first one of you that is up here on a working day.” This was all the testimony about the making of the gift, but a sharp issue has arisen about the intent of Herman Gibson at the time of the transaction and his relinquishment of dominion and control, particularly in view of the fact that he received and retained all interest paid on the certificates between the time they were placed in the lock box at Citizens Bank and his death. Christobel Elliott, who was a vault attendant in charge of safety deposit boxes at Citizens Bank, had testified on behalf of appellant. She had been an employee of that bank for 13 years. She took Wayne Gibson’s application for a lock box on July 28, 1976. She produced the record card for the box. She stated that, when Wayne Gibson came into the bank to rent the lock box, he told her his father, whom he identified as H. Gibson, would come in and sign the card, saying, “We will add his name to the card later, he does not have a key right now, I have both keys.” She said that Wayne said that his father signed his name “H. Gibson. ” She said she had just handed Wayne the two keys to the box when he said this. She testified that a man who identified himself as Mr. H. Gibson came in a few days later and told her that his son Wayne Gibson had rented a lock box and had told him to come in and sign his name on the record card. She said that this man stated that he did not have a key yet, but he would be transferring some things from First National Bank and wanted to get his name on the card, and that his son was going to give him a key. She permitted this man to sign the card because these statements seemed to her to be consistent with those made by Wayne Gibson when he rented the box. Her recollection when she testified was that Wayne had said something about transferring some things from the First National Bank. The signature on the card was clearly shown to be that of Herman Gibson, who signed “H. Gibson” on the card. The box was not entered between the time it was rented by Wayne and sometime after October 12, 1976, the date of Herman Gibson’s death. Interest payments were made on each of the certificates of deposit after their delivery to Wayne Gibson by checks issued by the banks and made payable to the father and his two sons. These interest checks were endorsed by Herman Gibson only and his receipt and retention of the proceeds is not questioned. Ms. Elliott testified that when she made the entry with reference to the transaction on her daily record, she listed the holder of the box as “Gibson, Wayne or H.,” from the instructions given her by Wayne. This was done, according to her, prior to the time Herman Gibson came in to sign the card. She said that Cecil Gibson’s name was added to the card on October 15, 1976, after Herman Gibson died. She said that some of the Gibsons came into the bank and tried to get the record changed, and that on one occasion, Wayne and Cecil Gibson came with their two attorneys, Moore and Gibson, and questioned her about the rental of the box and about H. Gibson’s signature, intimating that she should not have let him sign the card, because she had no authority to do so. She said that, on another occasion, appellees came in and pretty much the same conversation took place. She said that M. W. Griffin and Terry Ray, her department heads, heard loud talking, realized that something was wrong, and came down where the parties were, and, after standing there a few minutes, called an attorney named Womack, who was a member of the law firm which represented the bank. Ghristobei Elliott said that her discovery deposition had been taken twice. She said that when Moore took her discovery depositions, she produced a copy of the work sheet at his request and made it an exhibit to her testimony. She also stated that he asked her to produce the card, a copy of which was made an exhibit to her discovery deposition. The receipt card, which she said was made up from her daily record sheet, showed payment by “Gibson, Wayne or H.,” and computer cards she said were inside from her daily record sheet listed the box in the name of “Gibson, Wayne or H.” She also said that when her discovery deposition was taken on April 18,1977, she was examined at length by attorneys Moore and Gibson about their coming into the bank and talking to her about the safety deposit box and, from her review of the deposition on the preceding day, there were references to both her meetings with the Gibsons. She stated that Moore had asked her if she wm willing to take a polygraph or lie detector test. On cross-examination, her credibility was immediately attacked. Ms. Elliott testified that Moore had questioned her as to how Herman Gibson’s signature got on the card and indicated that she was not being truthful with him and asked her if it were possible that she had just imagined what she had said. She denied that she had told Moore and Gibson, the attorneys, that she did not know how Herman Gibson’s name got on the card. She said that she had not stated to attorneys Moore and Gibson that she did not know how Herman Gibson’s name got on the signature card or that she must have been away from her desk when it happened. She stated that in her earlier testimony, she denied having said that, but had instead said that one of the four (3 Gibsons and Moore) had said it. Otherwise, she repeated on cross-examination virtually the same testimony she had given on direct examination. She said that Herman Gibson’s name was never typed in the upper left hand corner of the signature card where the names of persons who could enter the box for which the card was issued were normally placed, because he never came into the bank with a key. She said that she could not be mistaken about Wayne telling her his father would be in later. She said that she had noted on her work sheet that Wayne told her Ms father would be in later. The attack on Ms. Effiott’s credibility was continued aggressively. The first witness called by appellees was Tommy Womack, the attorney who had been called by bank officers. He testified that he had never been present in a conver sation with Ms. Elliott when the two attorneys were present, but was present when she was ©liscussing the matter with appellees. He said that there was a disagreement between them at that time. On cross-examination, he said that Ms. Elliott’s reputation in the community for truth and honesty was exemplary. It was then that Wayne Gibson testified. He contradicted Ms. Elliott’s testimony, saying that she had told Moore in the presence of the three Gibsons that she did not know how Herman Gibson’s name got on the card and said that it must have happened when a girl who replaced her might have been at her desk. He said that she also had said that the signature had not been authorized by Wayne. Cecil Gibson corroborated his brother’s testimony about Ms. Elliott’s statements to them. He said that Ms. Elliott had given a deposition prior to trial that was different from what she had told appellees and their two attorneys, so he and Wayne went to the basalt. He said that when a bank official saw they were running Into a dispute, he called the lawyer. At the conclusion of Cecil Gibson’s testimony, the following took place: MR. MOORE: If the Court please, I am going to testify. I will have to withdraw from the case. MR. BRADLEY: They would both have to withdraw from the case. 0 0 0 Rules of Ethics say that if even a partner testified the other partner has to withdraw. THE COURT: Gentlemen, I am not going to tell you how to try your lawsuit. MR. BRADLEY: I am not going to make any objections either way as such, I am merely pointing out what * ® * Rules of Ethics says. MR. MOORE: There is no rale of law. MR. BRADLEY: I know there is no rule of law. THE COURT: As I said, gentlemen, I am not going to tell you how to try your lawsuit. I don’t have that authority. When Moore took the stand and identified himself, appellant’s attorney stated: 84If the Court please, just to be sure the record is straight, I want the record to show that Mr. Moore has withdrawn from the case to become a witness, but his partner is continuing in the lawsuit.” The chancellor responded: “All right.” Appellant’s attorney then asked that he have a continuing objection to the attorney’s testifying and the court stated that it was already in the record. Moore contradicted Ms. Elliott’s testimony and gave his version of her answers when he questioned her in the bank which was similar to the testimony of appellees. He stated that in his examination of Ms. Elliott in a discovery deposition, her testimony was exactly opposite to her statements on the occasion he questioned her in the bank. The chancellor found that there was sufficient dear and convincing evidence that Mr. Herman Gibson intended to give these certificates to his two sons. The court based its decision in part on the fact that Herman Gibson never had the key to the box. The question, however, was not whether Herman had lost all dominion and control over these certificates. It was whether he clearly intended to relinquish all dominion and control. His collection of interest does not indicate that he did. His appearing and signing the signature card may have been an afterthought, or it may have been a clear indication that, at the time of delivery, he did not intend to surrender all dominion and control. The testimony of the attorney in this case becomes very critical on the determination whether the evidence of Herman Gibson’s intent to make a completed gift inter vivos is clear and convincing. It is particularly critical when it involves the credibility of a witness whose testimony was essential to the adversary’s case. This was not a sudden development. The lawyer had known, at least since taking a discovery deposition in March, before the trial in May, that the witness would testify as she did, yet he actively participated in the trial. Not until the very end of the trial did the attorney withdraw from the case. When he did, his partner continued with the trial, in spite of objections by appellant’s attorney. The Code of Professional Responsibility adopted by this court includes the following provisions: DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment. * * * (B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify: (1) If the testimony will relate solely to an uncontested matter. (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. (3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. (4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case. DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness. (A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101 (B) (1) through (4). We have been confronted with numerous problems in connection with testimony by attorneys engaged in the trial of a case over the past decade. The following cases have arisen: Rushton v. First National Bank of Magnolia, 244 Ark. 503, 426 S.W. 2d 378; Old American Life Insurance Co. v. Taylor, 244 Ark. 709, 427 S.W. 2d 23; Montgomery v. First National Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299; Cox v. Gulf Union Corp., 255 Ark. 120, 499 S.W. 2d 63; Watson v. Alford, 255 Ark. 911, 503 S.W. 2d 897; McWilliams v. Tinder, 256 Ark. 994, 511 S.W. 2d 480; Dingledine v. Dingledine, 258 Ark. 204, 523 S.W. 2d 189; Canal Insurance Co. v. Hall, 259 Ark. 797, 536 S.W. 2d 702; Jones v. Hardesty, 261 Ark. 716, 551 S.W. 2d 543; Milbum v. State, 262 Ark. 267, 555 S.W. 2d 946; Enzor v. State, 262 Ark. 545, 559 S.W. 2d 148; McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W. 2d 409. In some of these cases we have recognized that there are cases in which the necessity for the lawyer testifying cannot be anticipated until a stage of the trial at which his withdrawal, or that of his firm, would be impossible without serious injustice to his client, and that withdrawal should not be expected in such cases. “[B]ut it should be clear that the necessity for the lawyer’s testimony could not have been anticipated. ” Montgomery v. First National Bank of Newport, supra. If the lawyer’s testimony was necessary in this instance, it should have been known two months prior to trial. It is not sufficient to leave further trial to a member of the testifying attorney’s firm. Old American Life Insurance Co. v. Taylor, supra; Montgomery v. First National Bank of Newport, supra. Serving as appellate counsel after testifying is not even permissible. Milbum v. State, supra. We have indicated that an attorney should decide whether he should serve as a witness or as an advocate. Enzor v. State, supra. In Dingledine v. Dingledine, supra, we pointed out observations in the Code of Professional Responsibility that an advocate who becomes a witness is put in the position of arguing his own credibility and that there is inconsistency in the function of an advocate to advance or argue the cause of another and that of a witness to state facts objectively. Credibility was the issue here. Ordinarily, on trial de novo in this court, we avoid remand of a case reviewed under standards governing equitable procedures. In McWilliams v. Tinder, supra, we were able to do so. For reasons hereinbefore stated, we cannot do so here. We are in somewhat the same position we found ourselves in Rushton v. First National Bank of Magnolia. There we reversed the decree in favor of the testifying attorney’s client and remanded the case for a complete new trial, unprejudiced by any findings theretofore made,.and we find it necessary to do so here. We do not treat appellant’s point C. It does not appear that fraud was an issue in the trial court. The chancery court did not treat it as an issue. We find no evidence in the record before us to support a finding of fraud. The decree is reversed and the cause remanded for a new trial.

Lyle Brown, Justice. Appellant Bobby Payne was tried by a jury, convicted and sentenced to one year in the penitentiary on a charge of abetting an arson. Appellant challenges the sufficiency of the evidence and asserts error in the giving of an instruction. The only question which is properly before us is the sufficiency of the evidence to support the verdict. On the night of December 28,1967, one of three barns owned by Edwin McClellan burned; it was filled with dry hay; the night was clear and cold; and the owner, who lived on the farm, discovered the fire a few minutes after it ignited. Lynn Beavers testified that lie helped burn the barn and had pleaded guilty; that he was sixteen years of age and a cousin of the defendant; that a few days before Christmas, Payne drove him to the farm and showed him the barn; and that Payne told him he could make $25 by burning it. Beavers further testified that on the night the barn was burned he drove to the Riverside Cafe at Calico Rock in company with Richard Flock; and that Beavers and his companion Mock there met Bobby Payne, who advised Beavers that he (Payne) would pay $50 for the burning of the barn. According to Beavers, he was advised that one Gene Fields, a neighbor of the prosecuting witness, would pay the money to Payne, who would in turn compensate the boys for the burning. Both Beavers and Flock testi fied that after the conversation with Payne, they headed for Calico Rock and after driving a few miles turned back, went to the barn, and burned it. The fourth and last witness for the State was not an accomplice. He was fifteen-year-old Sonny Chaffin. His testimony was to the effect that Bobby Payne approached him about a week before Christmas 1967; that Payne inquired of Chaffin if he wanted to make some money; that when Chaffin inquired of the nature of the work, Payne invited Chaffin for a ride; that they drove out of Norfork and to the McClellan farm where Payne pointed out a barn and said he would give Chaffin $50 to burn it; and that Chaffin advised Payne he would have nothing to do with it. Bobby Payne was the only witness for the defense. He testified that he was twenty-seven years old and lived at Calico Rock. He related that Grene Fields had offered him $50 to burn the McClellan barn; and that he had recounted the conversation at different times to Beavers, Chaffin, and others, but not with the intention of encouraging them to do the burning. He denied having pointed out the barn to any of the State’s witnesses. On the night of December 28 he says he was sitting in a truck at the Riverside, Cafe with Don Lackey, a merchant at Norfork; that Beavers and Flock drove on the parking lot and called Payne to their car; that Beavers “asked me if they would go do it if I would get the money for them”; that Payne started talking to them but Beavers interrupted the conversation and drove off, making the statement as he left that “we are going to go do it.” Shortly thereafter the barn burned. If the testimony of Sonny Chaffin, independent of the testimony of Beavers and Flock, tended to connect Payne with the commission of the crime charged, it is sufficient corroboration of the accomplices. Smith v. State, 199 Ark. 900, 136 S.W. 2d 673 (1940). Of course, Chaffin’s testimony is required to be of substantive character. Yates v. State, 182 Ark. 179, 31 S.W. 2d 295 (1930). If an accomplice is corroborated as to some particular fact or facts, the jury is authorized to infer that the accomplice speaks the truth as to all. 2 Wharton’s Criminal Evidence, § 469 (1955). The testimony of Chaffin convinced the jury that appellant was shopping for a prospective arsonist within a matter of days before the fire. From that testimony we think the jury was authorized to reasonably infer that the accomplice Beavers was telling the truth when he testified that appellant proposed that Beavers set the fire. A very similar situation is to be found in the recent case of State v. Dills, 416 P. 2d 651 (Oregon 1966). Oregon’s statute comports with our statute prohibiting a conviction on the uncorroborated testimony of an accomplice. There an accomplice testified for the State. Another witness, not an accomplice, testified that the defendant offered the witness $500 to burn the house. He did not accept the offer. Three days later the house burned. The Court held that the testimony of the latter witness corroborated the accomplice and upheld the conviction. Also, it could here have been of some significance to the jury, and properly so, that appellant met with Beavers and Flock shortly before the latter set the fire. Again, the jury may have attached some importance to the fact that Don Lackey was not called as a witness by appellant, nor was Lackey’s absence explained. Lackey was said to be present at the Riverside Cafe in company with appellant at the time Beavers and Flock drove up before the fire. If appellant was testifying truthfully then Lackey’s testimony could have corroborated appellant to some extent. The other point advanced for reversal is that one of the instructions given by the court was incomplete. The challenge comes too late. No objection was made to that instruction at the time it was given, nor did the defendant incorporate the alleged error in his motion for new trial. It was his duty to object, except to an overruling of tlie objection, and carry tlie assignment of error forward in bis motion for new trial. Randall v. Slate, 239 Ark. 312, 389 S.W. 2d 229 (1965). Affirmed. Appellant’s counsel on appeal did not participate in the trial.

Holt, J. Appellant, Layman Dickinson, and appel-lee, H. H. McKenzie, on September 12,1936, entered into a written agreement under the terms of which appellee agreed to sell to appellant 538.08 acres of land in Nevada county, Arkansas, for $3 per acre, reserving all pine timber eight inches and over at the stump. $200 was paid as earnest money and the balance was to be paid on or before January 10,1937. On January 9, 1937, appellee executed a deed to appellant in compliance with the agreement, reserving therein the pine timber with the right, for one year, from the date of the deed, to cut and remove said timber. In June, 1937, it became apparent that the timber could not be removed within the time limit, so on June 19, 1937, an option was agreed to and signed by appellant giving appellee a year’s extension from January 9, 1938, to January 9, 1939. The material provisions of this option are as follows: “I give and grant to the said H. H. McKenzie the option of extending the time for another year from January 9,. 1938, on payment to me of $100 at any time on or before. January 9,1938, should he care to exercise the option, and on payment to me of the $100' in cash at any time on or before January 9, 1938, the said H. H. McKenzie shall have until January 9, 1939, to cut and remove said timber.” After January 9, 1938, appellant contended that appellee had failed to pay or tender to him the $100 for appellee’s right to the extension in question according’ to the terms of the option agreement, and accordingly declared appellee’s right to the option forfeited, and thereafter refused to accept the $100 tendered by appellee for' said extension. Thereupon appellee filed this suit, alleging* in his: complaint, among other things, the following: “ That prior to the 10th day of January, 1938, plaintiff had prepared, the necessary papers and a valid check for the $100 payable to defendant and sought to deliver same to him, but by various pretenses said defendant evaded plaintiff, but agreed that he would meet plaintiff on Saturday, the-15th day of January, 1938, and close said contract, thereby lulling plaintiff into the belief that he would accept said tender and execute said extension. That on said day-plaintiff tendered said sum to defendant, but he refused, to accept same, and claimed the time to make same had expired. That plaintiff was at all times on and after the-9th day of January, 1938, and is now, ready, able and', willing to pay said $100, and sought to do so, but was: wrongfully prevented from doing so by defendant wrongfully evading plaintiff and absenting himself for the-fraudulent purpose of claiming that said option had expired. That defendant is now estopped to claim that said' option has expired. ” Appellee also tendered into court the sum off $100 and prayed that appellant be required to specifically perform said option, that he -be enjoined and restrained from cutting and removing any part of the-timber specified, and that he, appellee, be given one year-from the termination of the litigation in which to cut and remove said timber. Appellant filed a demurrer and' answer to the complaint. In his answer' he specifically- denied every material allegation in the complaint except that he admitted the execution of the contract of September 12, 1936, the execution of the deed in question by appellee on January 9, 1937, and the execution of the option agreement dated June 19, 1937, signed by appellant only. The material facts, as reflected by the record, substantially are: January 9, 1938, fell on a Sunday. Appellant is a traveling salesman and was usually out of the city except at night. On January 7, 1938, appellee prepared the option extension agreement in question, hut did not see appellant that day hut on Sunday night, the 9th,- at about seven o’clock, he called appellant on the ’phone and told him that he had missed him on the Saturday before and that he then had the papers and cheek ready to close the extension and that appellant replied to him over the telephone in these words: “Why, Horace, ■don’t worry, this is Sunday and it is not convenient. I will be here all next week and we can attend to it next week.” On Monday, January 10, 1938, appellee called several times at the office of the Logan Grocery Company, where appellant worked, but each time was advised that appellant had not returned from his territory, and subsequently ’phoned for appellant three times and finally talked to him over the ’phone and told him that he, appellee, had the $100: ready and papers to be signed by appellant. Appellant advised appellee that he was tired, having worked his orders, and “Don’t worry, Horace, we will fix that up Saturday.” The record further reflects that on Saturday, January 15th, appellee met appellant on the street about 11:30 a.m. and told him he would like to get the papers signed and that he would get Miss Hitt, a notary, and go out to appellant’s house to get his wife’s signature. Appellant advised against' this, saying that he might not be at home. Appellee met appellant two or three times the same afternoon and on their last meeting appellant said to him: “The mails were open, you could have sént me the check. You did not pay it in time and I feel that it is my timber. ’ ’ Appellant testified that appellee did not tell him that he had a check for him for $100; that money was never mentioned from June 19, 1937, until January 15, 1938. He further testified that appellee never told him in the conversations he had with him that he wanted to get the extension closed up; that he, appellant, did not know what appellee wanted with him; that he did not say except that he had some papers he wanted to fix up; that he said nothing to mislead appellee or to keep him from paying the $100. Gus McCaskill testified that he was in the Logan Grocery Company building on January 10th when ap-pellee talked to appellant on the ’phone and that he heard appellant’s part of the conversation distinctly, he not being more than thirty feet away. He heard appellant say, “Horace, (meaning appellee) don’t worry about that I will attend to that Saturday.” Appellant denied that he made any such statement over the ’phone. Sam Logan testified that he is connected with the Logan Grocery Company, and that appellant had been employed by the company for nineteen years. Appellee, on the afternoon of January 10,1938, made several ’phone calls to the grocery company inquiring if appellant were in the office. He, Logan, answered the ’phone once. Appel-lee asked if appellant were there and that he told him he had not come in but should be'there in a few minutes. Ap-pellee is Logan’s wife’s nephew. Appellee further testified that he went by to see if appellant had come in for he was anxious to get it closed up that day. That was the date of the expiration of the option. He did not go to appellant’s house that night because appellant refused to see him. Appellant put the date off and set the date himself as to when he would close it. Appellee further testified that if he had known appellant was trying to defraud him and would not sign the extension he would have sent it by registered mail, and told appellant when asked why he did not mail it to him, that with our relationship and the trust appellant had in him, appellant would think appellee a plain fool if he registered a letter with a $100 money order in it to him. Appellee thought he should have closed the deal that day. There is other evidence in the case, Avhich we do -not deem it necessary to set out. On this record the court, among other things, -found as follows: “The court further finds that prior to the 10th day of January, 1938, the plaintiff had prepared the necessary papers and a valid check for $100, payable to the defendant, Layman Dickinson, and sought to deliver the same to him but by various pretenses evaded plaintiff but agreed that he would meet the plaintiff on Saturday the 15th day of January, 1938, and close said contract, thereby lulling the plaintiff into the belief that he would accept said tender and execute said extension. That on said day the plaintiff tendered said sum to defendant, Layman Dickinson,- but he refused to accept said tender and claimed the time to make the same had expired. The court further finds that plaintiff was at all times on and after the 9th day of January, 1938, and is now ready, able and willing to pay said $100, and sought to do so, but was wrongfully prevented from doing so by defendant, Layman Dickinson, wrongfully evading plaintiff and absenting himself for the fraudulent purpose of claiming that said option had expired; that defendant is.now-estopped to claim that said option has expired;” that appellee had paid the sum of $100 into the registry of the court for appellant, that appellee is entitled to judgment and decreed that appellee have one year from the date the judgment became final to cut and remove the pine timber in question, that the clerk of the court pay the $100 in the registry of the court to appellant, and-that appellant be permanently enjoined and restrained for the period of one year from interfering with appellee in cutting and removing said timber. From this judgment of the trial court comes this appeal. It is earnestly contended by appellant that the chancery court had no jurisdiction and that its judgment awarding specific performance and injunctive relief is-, erroneous. To this contention we cannot agree. It will be remembered that the consideration mentioned in the-deed executed on January 9,1937, for the 538.08 acres of land in question was $3 per acre and in addition the reservation to the appellee, McKenzie, of all the eight inch, or over, pine timber of the approximate value of $2,000, provided the timber were removed within a year from the date of the deed, and that the option agreement of June 19, 1937, was but an agreement upon the payment by appellee to appellant of $100 additional on or before January 9,1938, to give appellee a year’s additional time from January 9, 1938, within which to cut and remove the timber. . ■ We hold that equity had jurisdiction to enforce specific performance of the contract in question and to grant the injunctive relief prayed for. In Dollar v. Knight, 145 Ark. 522, 224 S. W. 983, this court states the rule as follows:. “Where land or' any estate or interest in land is the subject-matter of the agreement, the jurisdiction to enforce specific performance is undisputed, and does not depend upon the inadequacy of the legal remedy in the particular case. It is as much a matter of course for courts of equity to decree .a specific performance of a contract for the conveyance of real estate, which is in its nature unobjectionable, as it is for courts of law to give damages for its breach.” And in 25 B. C. L., p. 271, § 72, the author says: “In the case of real estate specific performance is decreed almost as a matter of course when the contract has been properly established and is unobjectionable in any of its" features which address themselves to the chancellor’s discretion. Under such circumstances the vendee is entitled to have the contract specifically enforced irrespective of his right to recover damages for its breach. In other words, where the land is the subject-matter of the agreement, the jurisdiction of equity does not depend upon the existence of special facts showing the inadequacy of a legal remedy in the particular case, but the presumption arises that damages will not constitute an adequate remedy. Damages are not regarded as the equivalent of the specific relief because the exact counterpart of any particular piece of real estate does not exist anywhere else in the world.” •The contract in the instant case need not be 'binding upon both appellant and appellee. It being an option contract, it is sufficient if it is binding upon appellant alone and may be specifically enforced as to him. In Meyer v. Jenkins, 80 Ark. 209, 96 S. W. 991, this court said: “It is true that Jenldns does not agree to pur chase; that was left optionary with him. He had, under the contract, which is set ont in the statement of facts, the right to parchase at the expiration of his lease,, if he chose to do so. A contract of that kind which by its terms is binding on one of the parties only may be specifically enforced against that party, although the remedy cannot be granted to him against the other party. Pomeroy, Specific Performance, § 169; Waterman on .Specific Performance, § 200.” Also in Watts v. Kellar, 56 Fed., 1, on the question as to whether or not a contract will be specifically enforced where the right to specific enforcement is not mutual, the court said: ‘ ‘ The want of mutuality of right to a specific performance of a contract, which sometimes precludes its enforcement in equity, has no application to an option contract of the character we are considering. The purchaser of an option to buy or sell land pays for the privilege of his election. It is that very privilege which the other party to the contract sells. In the absence of an agreement to the contrary, each party to a contract to buy or sell land may have it specifically enforced against the other, but the very purpose of an optional contract of this nature is to extinguish this mutuality of right, and. vest in one of the parties the privilege of determining whether the contract shall be vitalized and enforced. An option to buy or sell land, more than any other form of contract, contemplates a specific performance of its terms; and it is the right to have them specifically enforced that imparts to them their usefulness and value. An option to buy or sell a town lot may be valuable when the party can have the contract specifically enforced, but, if he cannot do this, and must resort to an action at law for damages, his option in most cases will be of little or no value. No man of any experience in the law would esteem an option on a lawsuit for an uncertain measure of damages as of any value. The modern, and we think the sound, doctrine is that when such contracts are free from fraud, and are made upon a sufficient consideration, they impose upon the makers an obligation to perform them specifically, which equity will enforce.” It is next contended 'by appellant that the chancellor’s decision is against the weight of the evidence. We cannot agree. After a- carefnl consideration of this entire record, we have reached the conclusion that the findings of the chancellor are not against a preponderance of the evidence, and that the evidence supports appellee’s contention that- he was ready, able .and willing to carry out the terms of the option- agreement in question and did all that was required of him in attempting to pay to appellant the $100 for the extension of time before January 9, 1938, and that he was prevented from doing so solely by the conduct of appellant. In Townes v. Oklahoma Mill Company, 85 Ark. 596, 109 S. W. 548, this court said: “It is an elementary principle, needing no citation of authority in support, that there is no breach of. contract where performance is prevented by the conduct of the other party. The party whose own conduct prevents performance of a contract cannot complain of non-performance.” In James on Option Contracts, .§ 923, p. 455, the author says: “If the failure to make a timely election arises from the inequitable conduct of the op-tioner, and the optionee is free from fault, equity disregards.time as essential * * *. The effect of such conduct, it is said, waives the timeliness of the tender and estops the optionor from taking advantage of his own wrongful conduct. ’ ’ Again this court in Kampman v. Kampman, 98 Ark. 328, 135 S. W. 935, said: “Now, as we have already said, conditions which operate as a forfeiture of rights under a deed are not favored in the law, and slight circumstances will often be seized upon to prevent such forfeitures. Any conduct on the part of the party having the right to declare a forfeiture which is calculated to induce the other party to believe that the forfeiture is not to be insisted on will be treated as a waiver. As said by Judge Riddick in Bain v. Parker, 77 Ark. 168, 90 S. W. 1000, ‘a condition may 'be waived by acts as well as by express release. ’ ’ ’ On the whole record we conclude that the findings of the chancellor are correct, and the decree is accordingly affirmed.

M. Steele Hays, Judge. This is a Workers’ Compensation case. In April of 1977, claimant, John Ellis, suffered a compensable injury which resulted in the amputation of a part of the index finger of claimant’s left hand between the base of the nail and end of the finger. Claimant was paid 8.75 weeks of permanent partial disability for the loss of one-fourth the index finger. On May 16,1979, a hearing was held by the Administrative Law Judge to determine whether claimant was entitled to additional permanent partial disability benefits. Claimant alleged that he should have been awarded fifty percent compensation for loss of use to the finger under Ark. Stat. Ann. § 81-1313 (c) (18). He also contended that payments by the respondent, Fireman’s Fund Insurance Company, were controverted because of untimely payments. The Administrative Law Judge held that (1) claimant was not entitled to any additional permanent disability bene fits, and (2) respondents had not controverted payment of any benefits. The claimant appealed the decision to the Full Commission, and the Commission affirmed the judgment. He now brings this appeal. He first alleges that a preponderance of the evidence indicates a fifty per cent loss of use to the claimant’s left index finger. The Arkansas Workers’ Compensation Act provides for loss of the use of a finger as follows: Phalanges: Compensation for amputation of the first phalange shall be one-half of the compensation for the amputation of the entire digit . . . [Ark. Stat. Ann. § 81-1313 (c) (18)]. Ark. Stat. Ann. § 81-1313 (c) (22) provides: Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member. Claimant contends that under the law as stated above, he is entitled to fifty per cent compensation for loss of the entire index finger, citing Anchor Construction Company v. Rice, 252 Ark. 460, 479 S.W. 2d 473 (1972) and Springdale Farms v. McGarrah, 260 Ark. 483, 541 S.W. 2d 928 (1976) as supporting authority that the Commission must base its findings of permanent disability on medical testimony and cannot alter the percentage assessed because of wage loss considerations or personal observations. We agree with this contention by the claimant but, nevertheless, believe the Administrative Law Judge and the Commission made their findings of fact consistent with the medical testimony. Findings of fact by the Commission will not be disturbed on appeal unless unsupported by substantial evidence. Purdy v. Livingston, 262 Ark. 575, 599 S.W. 2d 24 (1977); Mass Merchandise v. Harp, 259 Ark. 830, 536 S.W. 2d 729 (1976). In the instant case, the evidence supporting the Commission’s finding included the diagram of a hand by Dr. Barbour showing the point of amputation to be mid-way between the base of the fingernail and the end of the finger. Also, the claimant’s own testimony in response to a direct question on the matter is consistent with this finding: Q. “That’s your distal joint or end joint, so the amputation is somewhere between the base of your nail and the end of your finger, is it not? A. “Yes.” (T. 35) Appellant also contends that Commission Rule 12 is in conflict with Ark. Stat. Ann. § 81-1313 (c) (18) previously cited in this opinion. Rule 12 provides: Loss by amputation of half or less than half of the terminal phalange of a member shall be one-half of the loss of the phalange, or one-fourth of the digit. Loss of more than one-half of the terminal phalange of a member shall constitute loss of the phalange, or one-half of the finger. . . Ordinarily, the base ofthe nail may be used as a gauge of half of the phalange . . . We believe that this rule is not in conflict with the provision in the Act, but simply amplifies it. As it applies to this case, it states that if the loss of use of the terminal phalange is less than one-half, as there is substantial evidence which indicates such, then only compensation for one-fourth of the “digit” will be allowed. This rule enlarges § 1313 (c) (22) which allows compensation for partial loss of a “member” proportionate to the loss actually suffered. It appears from the record that the actual loss of that portion of the digit as well as the loss of use, to the extent that such losses can be measured, fell almost at the midpoint between entitlement to one-half of the loss under § 1313 (c) (22), as claimant contends, or one-fourth, as found by the Administrative Law Judge. Our own view would be to hold for the claimant in such cases under the rule that doubtful cases should be resolved in favor of the claimant, still, the Administrative Law Judge is in a better position than we to make judgments that are in part based on a visual impression of the affected member itself and we cannot say that his conclusion is not supported by substantial evidence. Finally, claimant alleges that respondents controverted permanent partial disability benefits paid to the claimant. A medical examination was performed by Dr. M. R. Barbour in October of 1977 at the insurance company’s request. When claimant returned to work, he asked for a payment of permanent partial disability which was not allowed until June of 1978 when the respondent finally received a report from Dr. Barbour. Respondent explains the delay in part on the fact that Dr. Barbour, of Poplar Bluff, Missouri, discharged claimant in May of 1978 without permanent disability. As to whether Dr. Barbour was aware of the section of our Act dealing with scheduled injuries we need not speculate, as certainly the respondent was aware of that section and that the loss of a sufficient portion of the index finger carried a scheduled benefit. Over the forty year life span of the Workers’ Compensation Act, the legislature has repeatedly expressed the. public policy in this state as being that claims of working men and women arising from work related injuries shall be handled expeditiously at every stage in the process. In the light of that avowed policy we are unwilling to countenance a delay of eight months in obtaining the simplest sort of evaluation from the treating physician. We reach that conclusion primarily because the physician was not selected independently by the claimant but at the referral of the employer, and presumably was, to some degree, answerable to the respondent. If he is unable or unwilling to give speedier attention to their medical affairs than was evidenced, the burden of that delay should rest upon the respondent, and not upon the claimant. Respondent argues that the lapse of time should be measured from February (when an A-7 was filed) rather than October, but that begs the question, inasmuch as the record fails to persuade us that the respondent even then showed any diligence in bearing down on Dr. Barbour for the awaited report. The law provides, as it should, that Workers’ Compensation claims be given priority in the judicial process. That being so, is it fitting that a claim should lie dormant for eight months awaiting the physician’s completion of a standard form submitted to him for that purpose which could not have required more than ten minutes to complete? We think not. The Administrative Law Judge, recognized the delay as unreasonably long, and the respondent acknowledged that the delay was regrettable. (T. p. 2). We find that the delay here justified the allowance of afee to claimant’s attorney as provided in the Act under Ark. Stat. Ann. § 81-1332 (Repl. 1976), and therefore hold that claimant’s attorney is entitled to a fee of $200 for purposes of this appeal. The award of.the lower court is affirmed as modified. Supplemental Opinion on Denial of Rehearing delivered February 20, 1980 M. Steele Hays, Judge. Appellee’s petition for rehearing asserts that without statutory or case law authority we have allowed a fee to claimant for legal services on the amount awarded by the Commission. Appellee argues that our decision is contrary to Harber v. Shows, 262 Ark. 161, and Falden Ind. Wiring Co. v. Downs, 255 Ark. 923. Where it was said that “a claim must exist before it can be controverted.” But in Falden, it was the claimant who was in default, not the insurer, who acted with diligence. Additionally, there was a far greater element of uncertainty as to whether the claimant had sustained permanent partial disability. In Harber, the respondent notified the Commission immediately that the claim was accepted and the only reason a hearing was requested was to determine the dependency of the children. We think the facts in the case before us are governed by Aluminum Company of America v. Henning, 260 Ark. 699 and Horseshoe Bend Builders v. Sosa, 259 Ark. 267. In Henning the court held that a fee was allowable to claimant’s attorney even though the insurer had advised the Commission within the time allowed that it accepted the claim, where the claimant had employed counsel as a result of an earlier denial by the insurer. Citing Sosa, supra and International Paper Co. v. Remley, 256 Ark. 7, the court rejected a mechanical approach in determining whether a claim was controverted and stated that controversion may be a question of fact: A principal, if not the primary, purpose of determining whether or not a claim is controverted is for the purpose of determining who is liable for the claimant’s attorney’s fees. Making an employer liable for the attorney’s fees of the employee serves legitimate social purposes. Among them are discouraging oppressive delay in recognition of liability, deterring arbitrary or capricious denial of claims, and insuring the ability of necessitous claimants to obtain adequate and competent legal representation. We pointed out in our initial opinion that we believe a delay of eight months occasioned by a physician chosen by the insurer ought to rest upon the insurer rather than the claimant. Aluminum Company of America v. Henning, supra. Rehearing denied.

John A. Fogleman, Justice. This appeal comes to us in the wake of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L. Ed. 2d 31 (1977). Odell Lucas, appellant herein, claims to be an heir of Luther Lucas, who died intestate at the age of 86 in St. Francis County on November 11, 1976. Appellant asserts that he was the illegitimate son of Herman Lucas, who predeceased his father Luther. Therefore, appellant contends that he is entitled to inherit from Luther in spite of Ark. Stat. Ann. § 61-141 (Repl. 1971), which he asserts is unconstitutional under Trimble v. Gordon, supra. Because we agree with appellant, we reverse that part of the judgment of the probate court denying him the right to share in the estate of Luther Lucas. In Trimble, the United States Suprejne Court struck down an Illinois statute denying the right of an illegitimate child to inherit from its father. The Illinois statute was held to violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. The statutes are so nearly identical in effect that it cannot be seriously urged that one can meet equal protection standards and the other not. Ark. Stat. Ann. § 61-141 (d) provides: An illegitimate child or his descendants may inherit real or personal property in the same manner as a legitimate child from such child’s mother or her blood kindred; but such child may not inherit real or personal property from his father or from his father’s blood kindred. The Illinois statute involved in Trimble read: “An illegitimate child is heir of his mother and of any maternal ancestor, and of any person from whom his mother might have inherited, if living; and the lawful issue of an illegitimate person shall represent such person and take, by descent, any estate which the parent would have taken, if living. A child [who was illegitimate] whose parents inter-marry and who is acknowledged by the father as the father’s child [is] legitimate.” The basic similarity of the statutes is further illustrated by another subsection of the Arkansas act. Ark. Stat. Ann. § 61-141 (b), provides: If a man have a child or children by a woman, and afterward shall intermarry with her, and shall recognize such child or children to be his, such child or children shall be deemed and considered as legitimate. As in Illinois, legitimate children inherit from both father and mother in Arkansas. Ark. Stat. Ann. § 61-131 (Supp. 1977), 61-132, -133, -134, -136 (Repl. 1971). The United States Supreme Court held that the Illinois statutory classification limiting the right of an illegitimate child to inherit from its father bore no rational relationship to any legitimate state purpose. There is no way by which our statute can be distinguished from the statute involved in Trimble, so as to meet the equal protection requirements applied in Trimble. The learned probate judge felt that this case should be distinguished from Trimble because of differences in factual backgrounds. The distinction made by him can best be understood by quoting his findings made at the conclusion of the hearing in the probate court, viz: Well, the court is fixing to decide the fact. The court finds that Herman Lucas was the natural father of Odell Lucas. But the court is not going to invalidate the inheritance statute of the state of Arkansas. This court has read the Trimble case, and the Trimble case involved a substantial relationship between the mother and father which they had lived together for some time and held themselves out as husband and wife, and it was on that factual basis that it was handed down. Unless there is something more, this court will have to declare this man is not entitled to inherit, and that is the Arkansas Law. If you folks would do the right thing, you ought to let him in and give him, his share. That would be the fair thing for you to do. In the order entered after the hearing, the court had this to say: The Court finds as a matter of fact that Odell Lucas is the natural child of Herman Lucas. The Court further finds that the rule in Trimble, supra, is not applicable to the facts in the case at bar. In Trimble, the relationship between the father and mother of the illegitimate child was an established one, as opposed to being a casual relationship. In Trimble, the father and mother lived together for an extended period of time. In addition, they held themselves out to the community as husband and wife. On the contrary, in the case at bar, the relationship between Herman Lucas and Lou Willie Garrett was a casual one. They never lived together at all. They never held themselves out to the community as husband and wife. There is no substantial evidence that they had more than what could be termed a very casual relationship. On the basis of these facts, this Court holds that the provisions of the Ark. Dig. Stats. 61-141, as applied to the facts in the case at bar, are constitutional. It may be pointed out here that our present inheritance code was re-enacted in 1969, and therefore represents a fairly recent clear expression of legislative intent. We cannot agree that a distinction in the application of Trimble can be made on the basis of factual background. The Illinois act was not held to be unconstitutional as applied to Deta Mona Trimble, the illegitimate child who was denied the right of inheritance from her father by the Illinois courts in Trimble. The United States Supreme Court held that act unconstitutional on its face. The Trimble majority referred to the factual background only to “graphically illustrate the constitutional defects” of the section of the Illinois statute in question. The majority in Trimble remarked that “Hard questions cannot be avoided by a hypothetical reshuffling of the facts.” Although the facts here are not hypothetical, they cannot be considered as governing on the basic question of constitutionality of the statute. The most that could be made of the factual background in this case is to bring into question the standing of Odell Lucas to raise the question of constitutionality of the statute. In a long line of cases, we have held that one as to whom a statute does not have any adverse application cannot question its constitutionality. Even though this is a sound rule to which we should continue to adhere, we do not see how we could apply it in cases in which an attack is based upon the equal protection clause of the Fourteenth Amendment to the United States Constitution on the ground that a statute is un-derinclusive, or for that matter, to the facts of this case. In Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), the United States Supreme Court considered a similar question as going to the jurisdiction of that court, in spite of the fact that the parties had not raised the question and the state courts from which the appeal had been taken had not considered the matter. The court found that William Orr had standing to make an equal protection attack upon the statute as underinclusive, even though he might not benefit from a favorable ruling, since his constitutional attack afforded his only promise of relief otherwise totally barred. The court relied considerably upon statements in Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L. Ed. 2d 536 (1973), where there was a want of standing to obtain an injunction to require prosecution of the father of an illegitimate child for nonsupport, because payment of support as a result of a prosecution causing the father to be jailed was only speculative, at best. But in On, the court pointed out that in Linda R.S., it had posed the threshold question to be answered as whether the appellant had “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which [the] court so largely depends for illumination of difficult constitutional questions.” quoting from Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Although there are compelling reasons for adherence to our existing rule on standing to raise constitutional questions, it would be unthinkable for this court not to make an exception in a case such as this and to deny standing, when, on appellate rev Agnes Handcock filed a petition for her appointment as administratrix of the estate of Luther Lucas on January 7, 1977. In her verified petition, Odell Lucas was listed as an heir at law of Luther Lucas and his relationship to the decedent was stated to be “grandson.” Upon this petition, she was appointed and letters of administration were issued to her. It was not until she filed her first and final account as ad-ministratrix that she questioned the right of appellant to inherit from Luther Lucas. In that account she stated that he was not a lawful heir of Luther Lucas. Appellant filed a response, praying that he be adjudicated an heir at law of Luther Lucas and that appellee be ordered to distribute to him 1/12 of the estate, the share to which he would have been entitled if he had been the legitimate son of Herman Lucas. The chancellor’s findings were made at the conclusion of a hearing on appellee’s account and appellant’s response. Appellee does not question the court’s finding as to the paternity of Odell Lucas, and we find no basis upon which she might successfully do so. The evidence in support of that finding is overwhelming. Appellant’s mother, Lou Willie Garrett, was never married to Herman Lucas and never lived with him. As a matter of fact, it appears from the evidence that Herman never lived with any woman. On appellant’s birth certificate, Herman Lucas was shown as appellant’s father. Appellant, who was 37 years old at the time of the hearing, has used the surname Lucas all of his life. Appellant testified that, when he was six years old, Herman Lucas told him that appellant’s name was Odell Lucas, that he always called Herman “daddy” and that Herman called him “son.” He said that, when he. was young, he had, for the most part, lived with his maternal grandmother or with Herman and that when he lived with Herman, Herman provided him with food and clothing, took him places and always introduced him as Odell Lucas. He said he lived with Herman during summer months and on weekends. Appellant stated that no one had ever questioned his relationship to Herman until this proceeding. According to appellant, when he was 18 years of age, he discussed with Herman the relationship shown on appellant’s birth certificate and Herman had no objection. Appellant testified that Herman made appellant “administrator over his insurance” and it is undisputed that appellant made the funeral arrangements when Herman died in 1971 or 1972 and paid the expenses from the proceeds of insurance on Herman’s life, of which appellant was the beneficiary. The siblings of Herman who testified gave conflicting testimony as to whether Herman Lucas had denied that he was the father of Odell and as to whether Odell had lived with Herman. A sister testified that Odell did “stay” with Herman “when his mama gave him away to my mother.” She also said that her mother treated Odell “nice.” Another sister said that Odell had lived with Luther only two days when Odell’s mother “gave him to my mother.” Appellant’s former wife testified in rebuttal. She said that Herman called her “daughter-in-law” and called her children by Odell his “grandkids” and said that Odell was his only child. She also said that Odell called Herman “dad” and that the children called Herman “granddad.” According to her, during the nine years she was married to Odell, they visited Herman in East St. Louis frequently, sometimes for as long as a week, and that Odell was the favorite nephew of Herman’s siblings. On this overwhelming evidence, the Baker test as to standing was clearly met. Furthermore, under the trial court’s finding and the evidence on which it was based, denial of inheritance to appellant would transgress the holding in Trim-ble which rejected the premise that the Illinois statute’s classification could be justified in the interest of promoting legitimate family relationships by penalizing the child of an illegitimate relationship, in spite of the fact that a child cannot be responsible for his birth. Appellant had no more control over the casual illegitimate relationship of his parents than he would have had had they lived together over an extended period of time. We fail to find any significance in the fact that § 61-141 was a recent expression of legislative intent. Trimble renders it insignificant. § 61-141 was adopted in 1969. The Illinois act involved in Trimble had been reenacted on January 1, 1976. We also are unable to justify the subsection of our act in question on the basis of the compelling state interest in es tablishing certainty in disposition of a decedent’s property at death and in stability in property titles. Trimble dealt with these questions and recognized their importance and validity, but nonetheless found statutory disinheritance of illegitimate children whose fathers die intestate to be unjustified. It is interesting to note that the Court of Appeals of Kentucky, in an opinion written, but not handed down, before Trimble was decided, invalidated a statute having the same effect as our own, as violative of the Kentucky Constitution, even though that court, upon the authority of Pendleton v. Pendleton, 531 S.W. 2d 507 (Ky., 1976), mistakenly felt that Labine v. Vincent, 401 U.S. 532, 91 S. Ct. 1017, 28 L. Ed. 2d 288 (1971), mandated a rejection of the equal protection arguments advanced here and in Trimble. See Rudolph v. Rudolph, 556 S.W. 2d 152 (Ky. App., 1977). The Supreme Court of Kentucky, however, upon remand of Pendleton, beat a forced retreat from its original position by accepting the holding of Trimble with extreme reluctance and applying it to declare its statute invalid as a denial of equal protection under the Fourteenth Amendment. 560 S.W. 2d 538 (Ky., 1978). Appellee also finds comfort in Labine, pointing out that the United States Supreme Court did not overrule Labine. This is true, but the decision of the Illinois Supreme Court rejecting the equal protection argument had rested upon Labine. See In re Estate of Karas, 61 Ill. 2d 40, 329 N.E. 2d 234 (1975); Trimble v. Gordon, supra. The four dissenters in Trim-ble also resorted to Labine. The majority, however, found Labine difficult to place in the pattern of that court’s equal protection decisions and its precedential force limited by subsequent decisions. The majority distinguished Labine by the difference in the statutes involved, but our statute cannot be distinguished from the Illinois statute. In the very recent case of Lalli v. Lalli, 439 U.S. 259, 99 S. Ct. 518, 58 L. Ed. 2d 503 (1978), only two of the four dissenters in Trimble seem to rigidly maintain the positions they took in Trimble.Two of the dissenters in Trimble joined in a plurality opinion in Lalli, upholding a New York statute quite different from the Arkansas, Illinois and Kentucky statutes in that it did not result in total disinheritance of all illegitimate children, insofar as an intestate father’s estate was concerned. One of the two Trimble dissenters who had joined in the plurality opinion took pains, in a separate opinion, to reject the view expressed by another Trimble dissenter, who stated, in an opinion concurring in the judgment in Lalli, that Trim-ble was now a derelict, explainable only because of the overtones of its appealing facts. The result in Lalli was affirmance of a judgment holding the New York statute valid, upon the authority of Labine. The plurality pointed out that the disqualification in the statute involved in Trimble was too broad to be constitutionally acceptable for a justifiable state purpose and pointed out many distinctions between the New York statute and the Illinois act. An analysis of the positions taken in Lalli by the prevailing plurality and by the four dissenters, who would have held even the New York statute invalid, clearly indicates to us that Trimble remains healthy and vigorous and that Labine cannot be applied in this case, as appellee would have us do, however great our desire to do so might be. Trimble is clearly a case in which the final arbiter on the question of application of the Constitution of the United States has spoken, and it must be accepted as stating the law of the land, as our General Assembly found in the emergency clause of Act 1015 of 1979, by which Ark. Stat. Ann. § 61-141 (d) was amended, in an effort to meet the constitutional requirements mandated by Trimble and expounded upon in the Lalli plurality opinion. We cannot give the amendatory statute retroactive effect. It is a matter of substantive, rather than procedural, law, so it has no application to pending cases, at least when there is no express declaration, or necessary implication from the language used, of legislative intent that it shall so apply. Arkansas State Highway Com’n v. Hightower, 238 Ark. 569, 383 S.W. 2d 279. Cf. Harrison v. Matthews, 235 Ark. 915, 362 S.W. 2d 704. See also, Chism v. Phelps, 228 Ark. 936, 311 S.W. 2d 297, 77 ALR 2d 329. There is, of course, a presumption against the retroactive application of a legislative act. Snuggs v. Board of Trustees of Arkansas State Employees Retirement System. 241 Ark. 402, 407 S.W. 2d 933; Chism v. Phelps, supra. Legislation will not be construed as retroactive when it may reasonably be construed otherwise. Roberson v. Roberson, 193 Ark. 669, 101 S.W. 2d 961. These rules apply especially with reference to amend-atory acts. The general treatment is stated by an outstanding authority. In Sutherland Statutory Construction, Vol. 1A, 200, § 22.36, the author states: In determining the effect of an amendatory act on transactions and events completed prior to its enactment, it is necessary to distinguish between provisions added to the original act by the amendment, provisions of the original act repealed by the amendment, and provisions of the original act reenacted thereby. In accordance with the rule applicable to original acts, it is presumed that provisions added by the amendment affecting substantive rights are intended to operate prospectively. Provisions added by th£ amendment that affect substantive rights will not be construed to apply to transactions and events completed prior to its enactment unless the legislature has expressed its intent to that effect or such intent is clearly implied by the language of the amendment or by the circumstances surrounding its enactment. See also, Koster v. Warren, 297 F. 2d 418 (9 Cir., 1961); In re Child's Estate, 18 Cal. 2d 237, 115 P. 2d 432, 136 ALR 333 (1941). There is no language from which a legislative intention that Act 1015 should have retroactive effect can be implied. By express declaration, the act is effective “from and after its passage and approval.” The right of Odell Lucas to inherit was a right which accrued when Luther Lucas died. On a person’s death, the rights of his heirs become vested and may not be impaired by subsequent legislation. 16 CJS 1198, Constitutional Law § 228a; Arciero v. Hager, 397 S.W. 2d 50 (Ky. 1965). Cf. Gregley v. Jackson, 38 Ark. 487; Adamson v. Wolfe, 200 Ark. 360, 139 S.W. 2d 674; Purinton v. Purinton, 190 Ark. 523, 80 S.W. 2d 651. The General Assembly has recognized its responsibility to act in connection with recognized state interests involved in inheritance by illegitimates. It has been suggested by the dissenters in Lalli that a state might properly act by requiring that, in a case such as this, paternity must be proved by clear and convincing evidence. We deem the elevated standard of proof to be appropriate in a case such as this. That standard of proof was met. Since § 61-141 (d) is unconstitutional insofar as it prevents an illegitimate child, from inheriting from its father or its father’s blood kindred, we must consider the law in force at the time of the passage. State v. Williams-Echols Dry Goods Co., 176 Ark.324, 3 S.W. 2d 340. There was an earlier statute to the same effect as those involved here. Ark. Stat. Ann. §61-103 (1947). But that statute could not meet the test of Trimble. Since no statute in Arkansas has ever permitted inheritance by an illegitimate child from its father, we must then turn to the common law, which has been the basic law of Arkansas, at least since statehood. Ark. Stat. Ann. § 1-101 (Repl. 1976); Cordon v. Gregg, 164 Or. 306, 97 P. 2d 732, 101 P. 2d 414 (1940);Reese v. Stires, 87 N.J. Eq. 32, 103 A. 679 (1917); 10 CJS 109, Bastards, § 24a; 10 Am. Jur. 2d 948, Bastards, § 146. The right of an illegitimate child to inherit from his father has always depended upon statute. Gregley v. Jackson, 38 Ark. 487; 10 CJS 109, Bastards, § 24a; 10 Am. Jur. 2d 948, Bastards, § 145. See also, Wilson v. Storthz, 117 Ark. 418, 175 S.W. 45. The common law rule prohibiting the illegitimate child from inheriting from the father would itself deny equal protection to the illegitimate child under the Trimble test. For this reason, we cannot deny the right of inheritance to one in whom the right has vested, i.e., by the death of the ancestor. Assuming, however, that the common law has been the governing law on the right of a bastard to inherit since Arkansas became a state, we must determine the effect of a change in the common law. If not a rule of property, it is of that nature. It certainly has a bearing on devolution of titles. We must give appropriate attention to the effect of overturning a rule of law that even predates our statehood. This case presents no difficulty. Appellant was recognized as an heir at the time of the decision in Trimble. His right to inherit was not questioned until nearly a year after Trimble was decided. The evidence in this case that he was the son of Herman Lucas and the grandson of Luther Lucas is certainly clear, cogent and convincing. Certainly, he and all others in a like position should be permitted to inherit. The history of the common law is that it is developed on a case by case basis. Generally speaking we will take this approach. Of course Trimble does not apply if the child born out of wedlock has been legitimatized in any manner, or has been designated as an heir pursuant to Ark. Stat. Ann. § 61-301 (Repl. 1971). In many cases, the illegitimate who seeks to use Trimble and this decision as a springboard to establish his right to inherit will be barred by the statutes of limitations, laches, or estoppel. The present statute also establishes appropriate safeguards on the legitimate state interest recognized in both Trimble and Lalli. But it was not in effect when the case was tried and the state’s interest in the stability of titles and the orderly disposition of decedent’s estates is no less important now than it will be on the effective date of the act. Still, since we cannot begin to anticipate the myriad factual situations and legal issues that may arise, we can only take the traditional common law approach and deal with them as they arise. The judgment of the probate court is reversed to allow appellant to inherit as an illegitimate child, but otherwise is affirmed and the cause remanded for the entry of an appropriate judgment and for further proceedings consistent with this opinion.

Conley Byrd, Justice. Appellant Security Tire and Rubber Co., Inc. on April 25, 1967, took four notes from appellee Stephen E. Hlass secured by the following security agreement: “I Steve E. Hlass do hereby assign the customer accounts receivables and the Company owned inventory of Stephens Tire Company, 2517 Alma Highway, Van Burén, Arkansas to the Security Tire and Rubber Company, Inc. of Richmond, Virginia, as collateral for four notes Nos. 1, 2, 3 and 4 in the amount of $9,092.00.” On May 9, Stephen Hlass gave his check for $2,273.00 in payment of the first note which was dishonored because of “insufficient funds.” On June 9, 1967, appellant completed tlie filing of its security agreement and on June 16, 1967, filed its complaint asking for foreclosure under its security agreement of tire inventory liere involved. On August 28, 1967, Hlass was adjudicated a bankrupt and on September 18,1967, appellee Larry McCord, trustee in bankruptcy, intervened claiming that appellant’s security agreement was a voidable preference under ^ 60b of the Bankruptcy Act. When the trustee in bankruptcy filed a motion for summary judgment based upon the pleadings and certain alleged credit memos of appellant, appellant responded and attached an affidavit of its agent, Oscar Hamlett. In his affidavit Hamlett says that appellant began doing business with Stephen Hlass in December 1965. At one time Hlass owed appellant more than $18,000 but he made substantial payments in November, December, January, February and March immediately preceding making the notes. He then states that Hlass decided that he was overstocked and wanted to reduce his inventory and on Hlass’s request appellant took back some tires and gave Hlass credit. Hamlett says that at the time of taking the notes he made inquiry about Hlass’s business and was told that he just bought a $25,000 home, that Hlass owed nobody except appellant and that his Dunn & Bradstreet rating showed a net worth between $20,000 and $35,000 with a good credit. Hamlett says that he did not know and had no cause to know or believe that Hlass was insolvent either in April or June of 1967. The Court in awarding summary judgment to the trustee in bankruptcy found as follows: “The Court specifically finds that the attempted transfer and the suit and attachment based thereon occurred within four (4) months of the bankruptcy action, that the attempted transfer and attachments based thereon were all executed at a time when the debtor was insolvent and had been insolvent for a period of time, and the plaintiff knew oí' liad reasonable g'rounds to know and believe that the Debtor was insolvent when the transaction was arranged, that the consideration therefor was an antecedent debt, and to allow this transfer to the Plaintiff to stand would enable the Plaintiff-creditor to obtain a greater percentage of his debt than other creditors in the same class. Therefore all elements constituting a preference are found to be in existence, and this transfer is accordingly null and void as a preference under the Bankruptcy Act. “The Court specifically finds further that the attempted assignment to the Plaintiff-creditor was not validly executed under the terms of the Uniform Commercial Code, and a lien predicated on the seeurity instrument is found to be null and void as a secured transaction and this Plaintiff is therefore in the same category as any other unsecured creditor. ’ ’ For reversal of the summary judgment appellant relies upon the following points: “1. The Court erred in holding that appellant’s lien did not qualify as a security interest under the Commercial Code; “2. The Court erred in granting a summary judgment, inasmuch as a genuine issue of two material facts existed; the issues being (a) whether Stephens was insolvent and (b) whether appellant had reasonable cause to believe that Stephens was insolvent. ’ ’ POINT 1. Appellees to support the summary judgment argue that the security agreement does not contain a sufficient description of the inventory to comply with Ark. Stat. Ann. § 85-9-110 and Ark. Stat. Ann. § 85-9-402(1) (Add. 1961). They contend that a description of the collateral must be described by type or item to be sufficient. Ark. Stat. Ann. § 85-9-110 upon which they rely provides: “For purposes of this article any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.” Ark. Stat. Ann. § 85-9-402(1) provides: “A financing statement is sufficient if it is signed by the debtor and the secured party, gives an address of the secured party from which information concerning the security interest may be obtained, gives a mailing address of the debtor and CONTAINS A STATEMENT INDICATING THE TYPE, OR DESCRIBING THE ITEMS, OF COLLATERAL. ’ ’ The foregoing sections are commented upon by Mr. Oscar Spivack in his pamphlet, “Secured Transactions” (ALI 1960), and by the honorable Harry Meek in 18 Ark. Law Review 30, (1964). Mr. Meek in his article cites Industrial Packaging Prod. Co. v. Fort Pitt Pack. Int’l., 399 Pa. 643, 161 A. 2d 19 (1960), In re Kowalski, 202 F. Supp. 897 (D. Conn. 1962) and In re Drane, 202 F. Supp. 221 (W.D. Ky. 1962). These authorities agree that the better practice is to describe the collateral by types or items when a security is taken on inventory. However the authorities cited by Mr. Meek point out that the description need not be such as would enable a stranger to select the property and that a description is sufficient which will enable third persons, aided by inquiries which the instrument itself suggests, to identity the property. When the instrument here is considered in that light, if shows that it gave a lien on the “Company owned inventory of Stephens Tire Company, 2517 Alma Highway, Van Burén, Arkansas.” When we consider that the term “inventory” is defined in Ark. Stat. Ann. § 85-9-109(4), we believe that a fact issue was made by which the goods involved here could possibly be identi fied under the agreement given. The information given here seems to have been adequate for the sheriff to take the property into his possession. The record does not say but it is obviously possible that the Stephens Tire Company is the only business at the address given and that its only business has to do with tires. The record bore does show that the inventory consisted of tiros and tubes. For these reasons we hold that the trial court erred in holding as a matter of law that the description given in the security instrument was insufficient under the statute above. POINT 2. We are also of the opinion that the trial court erred in rendering summary judgment on the basis that the record conclusively established that the security agreement constituted a preference under § 60b of the Bankruptcy Act. Our cases consistently hold that the theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict and that any testimony submitted with such a motion must be viewed in the light most favorable to the party resisting the motion with all doubts and inferences being resolved against the moving party. See Russell v. City of Rogers, 236 Ark. 713, 368 S.W. 2d 89 (1963). To sustain the summary judgment appellees readily concede that under our decision in Fly & McFall v. Watts, 209 Ark. 282, 190 S.W. 2d 533 (1945), it was necessary for them to show the following: “1. A transfer on, or payment of, an antecedent debt, 2. by an insolvent debtor, 3. within four (4) months of bankruptcy, 4. resulting in advantage to the creditor, 5. who then had reasonable cause to believe that the debtor ivas insolvent.” When we consider lire affidavit of Oscar Hamlett in the light most favorable to appellant we believe that a fact issue was made on the solvency of Hlass at the time of perfection of the security agreement asa lien and also ’whether appellant had reasonable cause to believe that Hlass was insolvent. In holding that the trial court erred in awarding the summary judgment we have looked to determine only whether or not there was any substantial evidence presented by appellant to make an issue of fact and have not in auv manner attempted to evaluate the testimony for purposes of credibility. Never sed and remanded.

Baker, J. The Scott-Burr Stores Corporation was sued by Mrs. Ida Foster for personal injuries alleged to have been sustained on the 10th day of December, 1937. She was employed in the store or business house of the appellant in the city of Hope, Hempstead county, Arkansas. It was alleged that prior to the time of her injury she was strong and able-bodied, in good health, with steady nerves and that the injury she suffered had resulted in permanent physical disability to such an extent that she was then wholly incapacitated. She had worked as a saleslady in the mercantile business operated by the appellant as extra help for a period of approximately a year. She, no doubt, was possessed with that degree of familiarity with the store and fixtures, and surroundings as might have been expected of one so employed for the time. The business house of the appellant is described as a one-story building, facing south, in the rear or north end of which is an upper floor or decking, called a balcony, upon which is located an office department and storage places for goods, fixtures and furniture, or appliances not in actual use. This second floor or balcdny is reached by a stairway, one side of which rests against the north wall of the building, perhaps about four or five feet wide. At the top of the stairway and to the' side, away from the wall, there is a bannister, supported by uprights about four feet high. Boards are placed on top this bannister, reaching across or over the stairway so that the end of the boards next to the wall rested upon a cleat or piece of timber fastened to the wall as a support for the boards, which when so placed constituted or made a shelf upon which numerous articles had been placed or stored. Among these articles there were chalk or plaster of paris statuettes, supports for goods placed in or under counters called shams. These shams were made of wood and cardboard and were employed when in use as temporary or false shelves under counters or on counters, or at such places as it was desired to make use of them, for the purpose of stacking or placing goods thereon. At the time Mrs. Foster was hurt, she had been sent to this balcony floor to get some paper clips for use in tagging merchandise. Descending the stairway some objects that had been placed or piled.upon this shelf over the stairway fell from it, struck her on the right side of the head, just above the ear, glanced off striking her shoulder and falling to the floor. It is probably not positively known whether the object which struck her was one of the shams, a loose board or one of the statuettes. Someone picked up from the floor shortly thereafter one or more of the shams. It is said that some of the statuettes also fell. The blow from which she suffered was not sufficient to knock her down, but she was so badly hurt that she stopped for a few minutes on the stairway to recover from the shock and then returned to the place where she had been working. She was sent out with another lady to a doctor’s office for treatment of the rather severe wound on the side of her head. The doctor described the wound as being cut to the bone or pe-riosteum. He treated the wound by sterilizing and by applying clips so as to draw the edges of the cut together. No treatment was given to the shoulder or arm at the time, but there was administered to her a shot in order to avoid the development of tetanus. She returned to her work and remained there until late in the afternoon when she was called away on account of the illness of her father, who died a day or two thereafter. ‘On account of his illness and death she did not return to the store for about a week. At the time she returned her arm and shoulder were very sore and somewhat swollen. She had with her some liniment or lotion which she applied or had rubbed on by one of her fellow employees. It is alleged that she grew worse, returned to her home where she was confined for several weks. Upon trial of this case she was awarded a verdict for $3,000. The appeal comes from the verdict and consequent judgment. For her cause of action she alleges that the defendant did not use ordinary care to furnish her a reasonably safe place within which to work. In addition to a general denial the defendant pleaded assumption of risk. Defendant insisted that the court should have directed a verdict in its favor for the reason that the evidence was not sufficient to show negligence. The defendant, also, urged that there was error in giving instructions Nos. 1, 2 and 5. It was also urged that the verdict was excessive. Only because of the most earnest insistence on the part of the appellant that the evidence is not sufficient to show actionable negligence do we mention this matter at all. The appellant, however, argues that if there were objects so placed upon the shelving above the stairway that they fell therefrom, that fact in itself is not evidence of negligence without some showing that such objects had been so placed or located for a sufficient length of time that they must have been observed by the management of the store or that, in the exercise of ordinary care, a presumption arises that they could or should have been seen. We do not agree with this theory of the appellant. The evidence shows that this shelf is above the stairway, the only passageway by which one might go from one floor to the other, that if any object should fall from this shelf almost of necessity it must fall upon the stairway. There is no evidence of the insecurity of the stairway or bannister, or shelfing above it. So far as the evidence is concerned in that respect we must and do presume that the stairway was steady and that in the normal use of it there was nothing to loosen, disturb or shake objects placed upon the shelf so as to cause them to fall. This was a place, so far as the evidence shows, not open to public use, but resorted to only by the employees of the company. When objects were placed upon this shelf over the stairway, if they were not so placed or stacked thereon that they would not fall from that particular location, then the servant or employee handling such articles must be deemed to have been negligent and if there was no rack, and the evidence does not show any, to prevent the falling of such articles carelessly or negligently placed at or near the edge of this shelf, then there should have been such constant inspection as ordinary prudence would require to maintain at least reasonable safety. We think the jury might well have found that if those who used the stairway, or those who placed or stored or stacked articles upon this overhead shelving had exercised ordinary care in so doing there would have been a practical impossibility for objects to fall therefrom. It is not necessary to point out, or even to know or suspect what particular servant or agent may have been negligent. It was within reasonable requirements of the defendant company that it exercise ordinary care to keep this place reasonable safe for those who must in the performance of their duties use the stairway. The insistence, oil the part of the appellant, that there is no evidence from which it could be assumed or inferred that the particular shams that fell from the open shelf above the stairway had been in the dangerous position or ready to fall for any length of time before they actually fell upon the appellee is not tenable as a defense. If we assume that the articles that fell had been so placed, that they were in danger of falling, by some employees of the company only a moment before they did fall, then that act of so placing them was an act of negligence and the length of time within which they may have been in a dangerous .position is immaterial. We think this is particularly true when it is .considered that the objects that did fall may have been one of the statuettes or some of the shams placed upon or over the shelf. We are not unaware that the plaintiff in her description of the board or object that fell upon her as appearing to be a board about a foot wide and four and a half or five feet long, that is to say, of the same shape, size or length as the shelving boards over the stairway, but we think the evidence is conclusive and not in dispute that these hoards were securely nailed down and constituted a part of the building and that any inspection that might have been made to determine deterioration would have disclosed no defect in that regard, so it must he observed that there is a distinction or difference as to a lack of safety arising out of a défective condition that might have been discovered by inspection or in a dangerous condition brought about by the negligence of agents or employees of the defendant by piling or placing upon said shelf up over the stairway articles that might at any time slide or fall therefrom. It is argued, however, that the appellee was mistaken about the objects that fell and hit her. That is probably true. She returned to the place where she had been struck a little later and, of course, most probably saw or observed then the overhead boards which she described in attempting to describe what actually had fallen. It is not disputed even by the appellant that some of the shams fell nor is it disputed that the appellee received a cut upon her head requiring surgical attention and treatment. So it must appear that many of the cases cited by appellant upon this point in regard to defective appliances or defects in stairways, bannisters or shelves, are not applicable under the proof when given a favorable consideration on behalf of the plaintiff. True, plaintiff’s complaint alleged “the falling of the said plank from which plaintiff was injured was caused by the negligence and carelessness of the defendant.” The sham shaped like a plank, though somewhat lighter, weighing less than two pounds, proven and admitted to have been one of the falling objects at the time of the injury, was substantial proof of the allegation of. the complaint. The second error alleged by the appellant is that the court erred in giving instruction No. 1. That instruction as given is as follows: “You are instructed that the burden is on the plaintiff to show by a preponderance of the evidence her right to recover on her complaint; and by a preponderance of the evidence is meant not necessarily the greater number of witnesses, but the greater weight of the testimony, giving to the testimony of each witness such weight and credit as you think it is entitled to, and you are the sole judges of the credibility of the witness and the weight of the evidence.” The objection made to this particular instruction is that it did not give to the jury a rule to follow in determining the weight of the testimony and credibility of the witnesses. The .objection was made in due time to the instruction as given and a proper suggestion was made to the court by a specific objection announcing a time-honored, perhaps stereotyped rule approved many times over by this court, as follows: “Giving to the testimony of each witness such weight and credit as you may find it is entitled to when you have considered and determined the witness’ interest in the case, his or her relationship to the parties, bias or prejudice, means of information and manner of the testifying, and after weighing* the same by these rules, give to the testimony of each witness such weight and credit as you think it is entitled to, as the same does, or does not, comport with the truth.” ■ We think it would have been better had the court followed this somewhat ancient formula^. To a certain degree it is dangerous to depart from long established uses and practices approved by the court on every occasion when it has been proper to consider such propositions. Yet we cannot say that there was prejudicial error in a failure on the part of the court to amend the instruction as suggested by appellant’s counsel. Without attempting to analyze or make detailed comment on the additional elements proper to have been added to the instruction as given we suggest that the omitted part calls the attention of the jury to the fact that the jury has in its presence the witnesses whose conduct they may have observed and that they may consider any interest the witness may have or any bias or prejudice. It would perhaps be somewhat hard indeed to find a jury that would not sharply appreciate these particular conditions, and would not consider them in arriving at a verdict even without such instruction. The members of this court who have spent the greatest number of years in the actual practice know that juries are quick to observe interest, or bias whether such interest arises out of the relationship to the parties or out of bias or favor on account of parties or conditions.' But it may be possible at times to have a jury inexperienced and no member of which had served upon any former jury. On such an occasion it would be proper indeed to give such precaution.ary instructions as were omitted in this case. The instruction as given is substantially the effect of what was requested, the requested portion being only an elaboration or enlargement of the statements contained in the instruction as given. The third matter alleged as error arises out of the giving of instruction No. 2 given, at the request of the appellee. Instruction No. 2 is as follows: “You are instructed that it was the duty of the defendant to exercise reasonable care to furnish the plaintiff a reasonably safe place in which to work, and if the defendant failed to do so and the plaintiff was injured thereby, then you are told that such failure on the part of the defendant, if any, to furnish the plaintiff a safe place in which to work was negligence.” The only error alleged in this instruction arises out of the last part of it where it says “to furnish the plaintiff a safe place in which to work was negligence. ’ ’ We agree with appellant that it perhaps would have been better had the court said “exercise ordinary care to furnish the plaintiff a safe place within which to work.” That was said in the foregoing and first part of the instruction. The language used, however, was “reasonable care” instead of “ordinary care.” “Reasonable care” has been determined as being not essentially different from “ordinary care” and we think that announcement of the law was correct. Natural Gas & Fuel Co. v. Lyles, 174 Ark. 146, 294 S. W. 395. But again we suggest that it is still better to follow those long-proven and correct announcements of the law, so easily understood and so hard to misinterpret, but from the foregoing cited case it must be said that the use of the word “reasonable” instead of “ordinary” was not prejudicial error. We think it was made plain not only in instruction No. 2 that the defendant was required not to furnish a reasonably safe place, but to exercise ordinary care to do so. It is liardly probable the instruction was misunderstood, as in the instruction the jury was told, and the last expression must have been regarded more as a repetition than as a contradiction. The court made this point perfectly clear in giving* instruction No. 7 requested by the appellant as amended at the time it was given wherein the court stated “that the defendant was not under any absolute duty as an employer of the plaintiff to furnish her with any particular kind of steps or shelves above the same, or to stack the shams or pasteboard shelves or other objects in a manner so that they would not jar loose or fall, but that the defendant’s duty was only to exercise ordinary care to provide the shelves above the stairs to stack the shams or pasteboard shelves or other objects in a manner as to be reasonably safe, etc.,”. The two instructions, that is to say No. 2 and No. 7, when read together certainly make clear the duty of the master to the servant to the jury and meet the objection made by appellant in regard to the clumsy expression in instruction No. 2. It is also urged that in giving instruction No. 2 the court omitted to instruct the jury as to the defense of assumed risk. Instruction No. 2 was not what is generally called a binding instruction. That is to say, it was not one in which the jury was told if they found certain conditions to be true to find for the plaintiff or defendant, as the case might be, and being such omitted from consideration, as suggested in this case, a substantial defense urge'd by the defendant corporation. The effect of this instruction was to aid the jury in a determination of whether or not the defendant might be charged with negligence and so far as this instruction was concerned, even though the jury might find that the defendant was guilty of negligence, the jury was not directed to determine on that account the issues in favor of the plaintiff. That defense of assumed risk was reserved for another instruction and it was not necessary to mention the defense of assumed risk in giving to the jury an instruction whereby they might determine the sole issue of negligence. In this case the jury might find there was negligence and'still find for the defendant on the ground of assumed risk. The two instructions Nos. 2 and 7 are not in conflict and do not place upon any employer an undue burden as in Ft. Smith-Spadra Mining Co. v. Shirley, 178 Ark. 1007, 13 S. W. 2d 14, or Spadra Coal Co. v. White, 188 Ark. 568, 66 S. W. 2d 1072. In that respect this instruction differs from the authorities cited by appellant in regard to the defense as suggested. The case is differentiated from such cases as Postal Telegraph Cable Co. v. White, 188 Ark. 361, 66 S. W. 2d 642. In that case we discussed the effect of a so-called binding instruction given without suitable statement as to the defenses presented. In this case the defense of assumed risk was properly given to the jury under another instruction. The verdict makes further discussion on that matter superfluous. The next objection urged is in giving instruction No. 5 by the court to aid in a determination of the amount of recovery in the event the jury should find for the plaintiff. This is the usual or ordinary instruction given in such cases and we do not think we are justified in ox,tending unnecessarily a discussion of the instruction, although there were specific objections made, because it is urged as the chief objection that there is no evidence to show that she suffered by reason of the negligence of the defendant. This objection is a mere rehash of the first objection made and the second specific objection is that there is no evidence to sustain a recovery against defendant for damages resulting to plaintiff and that there is no evidence of pain and suffering, no evidence of impairment of plaintiff’s earning capacity, no evidence of the probable consequences of the alleged injuries that may be reasonably anticipated. These objections are more nearly technical than meritorious. It takes little proof to show that a deep cut on the side of the head is painful; that a badly swollen arm and shoulder are painful, or that such pain would tend to the impairment of plaintiff’s proficiency in the performance of her work as a saleslady, nor did it require very much evidence to show that when this plaintiff had been put to bed and kept there several weeks under the care of a physician, with her arm and shoulder bound securely in a fixed condition, when witnesses testify to her nervousness, to her complaints, to her lack of sleep, except under the influence of drugs that she suffered from the painful and distressing experiences. These matters were all before the jury, submitted to it under instructions for their determination of the facts. We might suggest in this regard that many of the questions sometimes asked witnesses and answers given in regard to serious- accidents, lacerations, cuts, bruises, or loss of limbs, as to pain and suffering, are unnecessary attempts at proof of facts known by every one who understands the extent of injuries. There remains but one other matter that appellant suggests as erroneous. Appellant urges that the verdict of the jury was excessive. It is true in this case that the plaintiff has not shown a great amount of earning capacity. She has shown a rather serious physical condition arising out of the injury. She has shown great suffering, long confinement to her bed, seen and treated constantly by a physician, so tortured with pain and nervousness so great that she could not sleep -or rest. She lost considerable weight, a condition perhaps somewhat of what might have been expected at the time of the injury. 'But no one might reasonably have anticipated consequences so serious and so long endured. The cut on the side of her head was perhaps the least important of her physical ailments and disturbances. It apparently healed within due and proper time and without serious consequences, unless the nervous condition may have arisen out of that -injury. We have given to this evidence in regard to her suffering full consideration and we cannot say that the verdict of the jury in regard to the extent of her injuries and the amount she should recover was not supported by substantial evidence. The judgment should -be affirmed. It is so ordered.

Holt, J. Appellee, Martin Sullivan, filed suit in tlie Nevada circuit court against appellants for injuries lie received on account of the alleged negligence of appellants, when he fell through a manhole of the water tank on the tender of an engine used to switch cars in the yards at Hope, Arkansas. The negligence of appellants, as set up in the complaint, is as follows: "That appellee while working with the engine doing switching saw, while on the ground, that a clinker hook was hanging over the edge of the tank attached to the engine, about three or four feet on the fireman’s side, in a dangerous position and that he climbed upon the tank for the purpose of pulling- it back on the tank and putting it in its proper place; that .when he got up on top of the tank he stooped over to pick up the clinker hook and as he raised up with the same one end of the-hook seemed to be caught or fastened and this overbalanced him causing him to step into the manhole which was open, thereby causing him to strike his left knee in such manner that he was permanently injured; that appellant Garrett, who had charge of said engine a short time before said accident, and who put water into the tank of said engine a- short time before said accident occurred, had carelessly and negligently left said manhole open thereby causing the plaintiff to fall into said manhole and to 'be injured.” - The answer of appellants denied every material allegation in the complaint and, in addition thereto, pleaded the contributory negligence and assumption of risk on the part of appellee. A trial to a jury resulted in a verdict for ap-pellee in the sum of $20,000. The injuries to appellee were of a serious and permanent nature. No complaint is made here about the size of the verdict rendered, and the correctness of the instructions given is not .questioned. The only assignments of errors presented here are (1) that the evidence is not sufficient to support the verdict; (2) that the ap-pellee assumed the risk; and (3) that the court erred in permitting counsel for appellee to read to witness, Wyatt, an affidavit previously made by him and asked him if the contents of said affidavit were true, and in refusing to exclude this testimony. Stating the facts in their most favorable light to ap-pellee, they are substantially as follows: Appellee, Sullivan, was in the employ of appellant railroad company as brakeman on the night of the alleged injury, and prior thereto had been continuously employed by the company as brakeman for 13 years. On the night of October 31, 1936, at about 8:30 o’clock while working in the.railway yards at Hope, appellee noticed the clinker hook extend ing out over the side of the engine in a dangerous position. This clinker hook is a metal rod about 12 to 15 feet long, and is used to draw clinkers from the furnace of the engine. Appellee climbed up the ladder on the left rear of the engine tender to adjust this clinker hook and put it in a place of safety. As he mounted the ladder he carried on his left arm an electric “bulls eye” lantern which threw the rays of light in front in the way that it was pointed and did not afford a complete circle of light. The top of the tender is surrounded by a raised solid, metal guard about 7 or 8 inches high, and in the center is a raised platform some 4 or 5 inches high covered by three manhole lids, each being about 25 x 33 inches. When ap-pellee reached the top of the ladder, he stepped on the deck of the tender facing the left-hand or fireman’s side. He then stepped on the left manhole cover, and with his lantern pointing toward the front and fireman’s side of the engine and with his back to the rear, he reached down and took hold of the clinker hook with both hands (the clinker hook weighed between 40 and 50 pounds) 'and as he attempted to lift the hook it seemed to be caught, he was thrown off balance and fell into the middle manhole, or water tank, which was open at the time. He did not know that it ivas open. The night was very dark. During his entire 13 years service with the railroad he had never known one to be left open before. The fall into the tank injured his left leg, especially his knee. When he got down from the tank he reported his injury to some other employees, but stated that he did not think it amounted to much at the time. Later, the injury developed into a most serious one which proved to be of a permanent nature. The facts further show that some three hours before this alleged injury, a Mr. Garrett, one of the appellants, had spotted this engine and tender near a city water connection, attached a 50-foot hose, into one end of which had been inserted a 16-inch pipe about V/2 inches in diameter for a nozzle, had carried this hose up on top of the engine, and through this middle manhole, into which appellee claims to have fallen and filled the tank with water. Garrett, on behalf of appellants, testified that he raised the manhole cover a few inches, inserted the nozzle and, after the tank was filled, removed the nozzle and closed' the opening. The facts further disclose that during this three-hour period from the filling of the tank until the alleged injury to ap-pellee, no one had been on top of the tender except appellant, Garrett, who filled the tank at about 5:30 p. m., and appellee, Sullivan, who went on the tank to remove the clinker hook at about 8:30 p. m. of the same day. Giving to the above facts their strongest probative force, as we must do, was the evidence sufficient to support the .jury’s verdict, and did the appellee, Sullivan, assume the risk? While it is true that no eye-witness testified that he saw appellant, Garrett, leave the manhole in question open, still we think there was sufficient evidence of a circumstantial nature to go to the jury on this point. We have uniformly held that facts in issue may be established by circumstantial evidence as well as by direct testimony. In St. Louis, Iron Mountain & Southern Railway Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171, this •court said: “In an action against a railroad company for negligent killing, where there is no eye-witness to the injury, and the cause thereof is not established by affirmative or direct proof, if the facts established by the circumstances will justify an inference that the negligent condition alleged produced the injury, the jury are not left to the domain of speculation, but have circumstances upon which, as reasonable minds, they may ground their conclusions. ’ ’ In Pierce Oil Corporation v. Taylor, 147 Ark. 100, 227 S. W. 420, this court said: “Plaintiff was not required to establish those facts by direct evidence, but could do so by proof of circumstances which warranted such an inference.” And again in Hanna v. Magee, 189 Ark. 330, 72 S. W. 2d 237, 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 cir cumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions.” To the same effect, see Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288, 37 L. Ed. 118. We cannot say as a matter of law that there is no substantial evidence, as disclosed by this record, to support the verdict. On the question of assumed risk, appellee, Sullivan, under his employment as brakeman assumed'all the risks ordinarily incident to that employment. He assumed no risk that arose from the negligence of the master himself, or any fellow-employee, unless it be shown that he was aware of the negligence and appreciated the danger therefrom to which he was exposed, or unless it be shown that the risk was so obvious that it would under the circumstances be seen and appreciated by an ordinary prudent person. This is a question for the jury to determine. Appellee had a right to assume, under the facts in this case, that the manhole in question would be kept closed. He had been working for appellant as brakeman for some 13 years, and had never known of one of these manholes to be left open. He testified positively that he did not know the manhole was open. In Choctaw, Oklahoma & Gulf Railroad Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, on p. 26, 48 L. Ed. 96, the Supreme Court of the United States said: ‘ ‘ The charge of the court upon the assumption of risk was more favorable to the plaintiff in error than the law required, as it exonerated the railroad company from fault if, in the exercise of ordinary care, McDade might have discovered the danger. Upon this question the true test is not in the exercise of care to discover dangers, but whether the defect is known or plainly observable by the employee.” In Texas & Pac. Ry. Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188, the Supreme Court of the United States said: “Without now considering the question whether the rule in this respect charges an employee with knowledge of defects, except with regard to such appliances or instruments as he is engaged himself in using, we think it sufficient to say that the law does not, under any circumstances, exact of him the use of diligence in ascertaining such defects, but charges bim with knowledge of such only as are open to his observation. Beyond that, he has the right to presume, without inquiry or investigation that his employer has discharged his duty of furnishing him with safe and proper instruments and appliances. ’ ’ We hold, therefore, that the jury was warranted in finding that appellee’s injury was not the result of a risk which he had assumed. Counsel for appellants cite a great many cases to sustain the contrary view. -However, after a careful investigation of the holdings in these cases, we are convinced they do not control here. Appellants in their third assignment contend: “The court erred in permitting the attorney for appellee to read to the witness, O. L. Wyatt, an affidavit previously made by him and ask him if the contents of said affidavit were true, and refusing to exclude the testimony of witness Wyatt with reference to said affidavit from the jury. ’ ’ Appellants in putting on their defense testimony introduced a witness, a Mr. Gentry, whose testimony, if believed, was very material. Gentry testified to the effect that he saw appellee, Sullivan, on the tender of the engine at the time of the alleged injury to him before he fell into the manhole, and heard a sound which indicated that ap-pellee himself had opened the lid or covering over the manhole. On cross-examination of this witness, Gentry, appellee’s counsel laid the foundation for his impeachment by asking him if he had not in the spring of 1937 in substance stated to Mr. Wyatt that-he did not know anything about the accident in question, that he was not down there at the time and knew nothing about it. Gentry had denied he had made any such statement to Wyatt. Appellee’s counsel in rebuttal placed on the stand witness, Wyatt, and in the course of his direct examination the following occurred: “Q. I will ask you whether or not in the course of your investigation you went to see Mr. Gentry! A. I talked to all of them at Rex Roe’s place. They stay down there and I thought maybe it was one of them. Q. Did you talk to Mr. Gentry? A. I am not so sure whether I walked out to the truck and asked them or not. It was generally known that I was trying- to find ont who the men were, but he is the man that works in Hope and goes around with all of them— his bunch ho runs with. Q. Mr. Wyatt, yon made an affidavit, didn’t you? A. Yes, sir, I talked to Mr. G-entry today and made an affidavit. ” Wyatt stated positively in the affidavit that he had talked to Gentry in the spring of 1937 and that Gentry told him he was not down there on the night in question and knew nothing about the casé at all. Counsel for appellee, having laid the proper foundation for impeaching Gentry, was taken by surprise when Wyatt upon being asked by appellee’s counsel: “Did you talk to Mr. Gentry?” answered: “I am not sure.” Counsel for appellee then said: “This is an affidavit taken and signed by you and I am reading it in order to refresh your memory. ’ ’ The affidavit Avas then read in which Wyatt stated that Gentry had told him that he was not down there that night and did not knoAv anything about it. When' Wyatt was asked if the statement he made in the affidavit was true and whether Gentry had made that statement to him in the spring of 1937, he answered in the affirmative. We hold that there was no error in permitting this evidence to go in and admitting the affidavit. Permitting counsel to ask leading questions is largely Avithin the discretion of the trial court and unless this discretion be abused it is not necessarily error to admit it. Plumlee v. St. Louis Southwest Ry. Co., 85 Ark. 488, 109 S. W. 515. We think the testimony and affidavit introduced here were proper on the ground tha,t appellee was taken by surprise by the testimony of his own Avitness, Avhen his Avitness said, “I am not sure.” Section 5196 of Pope’s Digest says: “The party producing a Avitness . . . may contradict him wdth other evidence and by showing that he has made statements different from his present testimony.” In Jonesboro, Lake City & Eastern R. R. Co. v. Gainer, 112 Ark. 477, 166 S. W. 571, this court said: “Where a party is taken by surprise at the testimony of his own witness, such testimony being entirely different from Avhat the witness had given the party calling him to understand that his testimony would be, the party who is taken by surprise, and who is prejudiced by the testimony of his own witness, may contradict him with other evidence, and by showing that he had made statements different from his present testimony, provided the proper foundation is laid for contradiction of the witness by calling his attention to the circumstances of the time and place, etc.” In Ward v. Young, 42 Ark. 542, this court said: “It was also insisted that the court erred in admitting J. 0. Young’s testimony, to contradict the testimony of Will Ward, the plaintiff’s own witness. Section 2523 of Gantt’s Digest provides that ‘the party producing a witness is not allowed to impeach his credit by evidence of bad character, unless it is in a case in which it is indispensable that the party should produce him; but he may contradict him with other evidence, and by showing that he had made statements different from his present testimony. ’ The proper foundation was laid here by inquiring of the witness, whom it was proposed to contradict, concerning the previous statement, with the circumstances of time, etc.” On the whole case we find no errors, and the judgment is accordingly affirmed.

George Howard, Jr., Judge. Appellant was convicted of robbery by the trial court sitting as a jury and was sentenced to the Department of Correction for five years, with two years suspended. Appellant’s request for credit for the time spent in the county jail was denied. Following appellant’s release from jail, after executing bond, on January 25, 1978, appellant failed to appear at a scheduled hearing on January 3, 1979. Pursuant to an alias warrant, appellant was arrested and confined to jail on a “no bond” status on January 5,1979, and remained incarcerated until the date of his conviction on March 30, 1979. Hence, appellant spent eighty-five (85) days in jail from the date of his arrest on the alias warrant to the date of his conviction. The State argues that appellant is not entitled to credit since appellant’s confinement was due to his failure to appear and not because of indigency. In other words, appellant, in effect, was a fugitive from justice and that the facts in the instant case are functionally equivalent to those in Hughes v. State, 260 Ark. 399-A, 540 S.W. 2d.592 (1976), where our Supreme Court held that appellant was not entitled to credit for the period spent in Alaska as a fugitive from justice awaiting transportation back to Arkansas. Ark. Stat. Ann. § 41-904 (Repl. 1977) provides: If a defendant is held in custody for conduct that results in a sentence to imprisonment, the court shall credit the time spent in custody against the sentence. It is clear that no charge was lodged against appellant for failure to appear. While appellant’s confinement on January 5th was pursuant to an alias warrant, it is plain he was held under the robbery charge pending final disposition of that charge. We are persuaded that appellant is entitled to credit for the period dating from January 5th to March 30th, aggregating a total of eighty-five (85) days. The judgment, as so modified, is affirmed. Ark. Stat. Ann. § 41-2820 (Repl. 1977) provides in pertinent part: (1) A person commits the offense of failure to appear if subsequent to having been: (b) lawfully set at liberty upon condition that he appear at a specified time, place, and court: he fails to appear without reasonable excuse. (2) Failure to appear is a class C felony if the required appearance was to answer a charge of felony or for disposition of any such charge either before or after a determination of guilt of the charge.

George Rose Smith, Justice. The appellant Teddy Spell and the appellee Sandra Spell, natives of Arkansas, were married here in 1961. They moved to Illinois in 1966, where Sandra obtained a divorce in 1973. The decree erroneously recited that the parties jointly owned 150 acres in Arkansas, in which Sandra had “special equities.” Teddy actually owned the land, with Sandra having only inchoate dower. The decree did not award Sandra any interest in the land nor direct Tedddy to convey her any interest in it. The decree gave custody of the couple’s three children to Sandra, with an allowance of SI 50 a week for their support. In 1975 the Illinois court entered a supplemental decree reducing to judgment the amounts that had accrued as unpaid child support. After the divorce Teddy returned to Nevada County, Arkansas, and Sandra moved to Texas with the children. In 1978 Sandra brought this suit (a) to obtain partition of the 150 acres in Nevada County, (b) to register the 1975 Illinois supplemental decree, (c) to obtain judgment for back payments accruing since the supplemental decree, and (d) to obtain a reasonable award for child support in the future. Upon trial the chancellor entered a decree recognizing Sandra’s dower interest in the land but deferring partition. The chancellor awarded Sandra a money judgment for the net arrears due upon the 1975 supplemental decree. As to arrears accruing after that, the chancellor modified the Illinois award by entering judgment at the rate of only $70 a week, instead of $150, with credit for payments made by Teddy. For the future the chancellor reduced the child support to $63 a week. Teddy appeals from the chancellor’s recognition of Sandra’s interest in the land. Sandra cross appeals from the chancellor’s modification of the Illinois decree between the date of the Illinios supplemental decree and the date of the trial below. On direct appeal Teddy must prevail under our holding in Knighton v. Knighton, 259 Ark. 399, 533 S.W. 2d 215 (1976), citing earlier cases. In Knighton we held that under Arkansas law a wife who gets a divorce must press her claim to an interest in her husband’s property at that time; she cannot assert it later. There, as here, the wife had obtained an out-of-state divorce without an award of any interest in her husband’s land in Arkansas. We held she could not later bring suit here to assert a statutory interest in the land. Otherwise, two or more successive wives might be entitled to assert dower rights in a decedent’s property. On direct appeal the decree is reversed and the cause dismissed as it relates to Sandra’s dotal or statutory interest in the land. On cross appeal Teddy first argues that Sandra is not in a position to question the chancellor’s modification of the Illinois decree as to installments accruing before the trial, because her notice of cross appeal recites that she appeals from the decree in the following particulars: “1. The court should have given full faith and credit to the Illinois decree and ordered defendant to pay the same amount of child support that he was under order in Illinois to pay, that is $50 each week per child. “2. The court should have granted plaintiff’s prayer [for partition of the land] .” Teddy argues that the cross appeal is limited to the award of $63 a week for the future, which is all we should consider under our holding in Miles v. Deisch, 228 Ark. 803, 310 S.W. 2d 505 (1958). We do not construe the notice of cross appeal so narrowly. The language might refer either to the chancellor’s reduction of the award to $70 a week for the future. The complaint allowance of $63 a week for the future. The complaint specifically sought judgment for $150 a week for the period after the Illinois supplemental decree, but only a reasonable sum for the future. Sandra’s brief on cross appeal does not question the $63 allowance. Hence we think it fair to interpret the language of the notice of cross appeal to refer to the chancellor’s reduction of the Illinois award to $70 a week. Moreover, Teddy designated the entire record for his direct appeal; so Sandra was not even required to specify the points on which she was cross appealing. See Linxwiler v. El Dorado Sports Center, 233 Ark. 191, 343 S.W. 2d 411 (1961). In the circumstances Teddy has not been prejudiced by the ambiguity in the notice of cross appeal. On the merits, the chancellor was in error in modifying the Illinois decree as to payments that had already accrued. We are not concerned with the Illinois court’s possible power to make a retroactive modification (a power that does not seem actually to be recognized by the Illinois cases), because neither side invoked Illinois law as required by Ark. Stat. Ann. § 27-2504 (Supp. 1977). Holley v. Holley, 264 Ark. 35, 568 S.W. 2d 487 (1978). We are therefore governed by Arkansas law, which does not ordinarily permit a retroactive modification of accrued payments. Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468 (1969); Sage v. Sage, 219 Ark. 853, 245 S.W. 2d 398 (1952). No exceptional circumstances exist here, such as the mother’s refusal to recognize the father’s visitation rights. Sharum v. Dodson, 264 Arts. 57, 568 S.W. 2d 503 (1978). Consequently the chancellor did not have the power to reduce the amount of accrued installments, even though he may not see fit to enforce the decree by contempt proceedings. On cross appeal the decree is reversed and the cause remanded for the entry of a judgment for the net amount due between the date of the Illinois supplemental decree and the date of trial. Reversed on direct and cross appeal. We agree. Harms, C.J., and Fogleman and Hickman, 11

. John C. Deacon, Special Chief Justice. Appellees, employees of the Arkansas penitentiary, were charged by information in two cases with administering excessive punishment to prisoners in October 1964 and January 1965 in violation of Arkansas Statutes 46-158. The. appellees filed a demurrer and motion to dismiss, alleging that the statute was void because of an unconstitutional delegation of legislative power. The trial court agreed and dismissed the cases and- the state brings these appeals. The issue in these cases is simply whether appellees were charged with a crime under a valid Arkansas penal statute. We are not asked to consider whether the use of the strap in the penitentiaries of Arkansas is cruel or unusual punishment prohibited by Article 2, Section 9 of the Arkansas Constitution. This point was recently before the Eighth Circuit in Jackson v. Bishop, 404 F. 2d 571 (1968), which held use of the strap to be in violation of the Eighth Amendment to the Constitution of the United States. Neither do we consider here whether appellees might have been charged with a crime under some penal statute other than Section 46-158. This law was enacted U 1893 as Section 62 of Act 76, which was a comprehensive measure providing for the management of the penitentiary. The constitutionality of this section has not been previously tested. It provides as follows: “The board [State Penitentiary Board] shall prescribe- the mode- and extent of punishments to be inflicted on convicts for the violation of the prison rules; and any superintendent, subordinate officer or guard having in his charge any convicts who shall himself, or who shall cause any other person to inflict on any convict any greater or more severe punishment than is prescribed by said board, said superintendent, subordinate officer or guard shall be deemed guilty of a felony, and on conviction thereof shall be confined in the penitentiary for not less than one (1) nor more than five (5) years; and if death ensues from said punishment, he and his aiders and abettors shall be guilty of murder or manslaughter as the case may be.” This statute has no guidelines. It permits the State Penitentiary Board in its sole discretion to prescribe for its employees the limits of conduct which would constitute a felony. In the absence of an adequate yardstick for the guidance of the board, it could set mínimums or extremes of punishment without restraint. The effect of this is to authorize an administrative body to impose criminal liability upon penitentiary employees based upon rules fixed by it. Enactment of penal statutes, always strictly construed, is a function of the legislative branch of our state government. We hold that Arkansas Statute 46-158 is an unconstitutional delegation of legislative power. Walden v. Hart, 243 Ark. 650, 420 S.W. 2d 868 (1967). Affirmed. Harris, O.J., disqualified. Holt, J., not participating.

GrifpiN Smith, C. J. This appeal is from judgments rendered on directed verdicts finding the defendant guilty (1) of selling liquor on Sunday, and (2) of selling, in dry territory, beér containing alcohol in excess of 3.2 per cent, .by weight. Appellant owned and operated the Elite cafe in Mal-vern. On Sunday in August, 1938, the prosecuting attorney purchased 'Budweiser beer. Chemical analysis showed an alcoholic content of 3.76 per cent, by weight, and 4.70 per cent, by volume. The chemist testified that, in his opinion, the beer could be used as an intoxicating liquid. Testimony of other witnesses that Budweiser beer had made them drunk was admitted over defendant’s objections. Grounds of objections were that the witnesses had not bought the beer from defendant, and that they did not know the alcoholic content. Exceptions were saved to the court’s action in holding that instructions received from the State Revenue Department, and a letter written by the Attorney General construing the law, were not admissible. Evidence that the beer was sold on Sunday is not contradicted; nor is the chemist’s testimony as to alcoholic content denied. A fine of $25 for violating the Sunday law was assessed, this being tbe lowest penalty permitted by § 3421 of Pope’s Digest. One of tbe early cases involving violation of a similar law was Bridges v. State, 37 Ark. 224. Tbe indictment was nnder § 1618 of Gantt’s Digest, and tbe opinion was banded down in 1881. Tbe court held that “Aleo-bol is embraced in one of tbe terms, goods, wares, or merchandise,” and affirmed the judgment of conviction. In dealing with tbe same section of Gantt’s Digest the court said, in Seelig v. State, 43 Ark. 96: “Where an act is in itself indifferent and only becomes criminal when done with a particular intent, there the intent must be proved. But if tbe act be unlawful, as to keep open a store on Sunday, tbe law implies tbe criminal intent, and proof of justification or excuse must come from tbe defendant. ” This opinion was in 1884. In March, 1885, tbe statute now appearing as § 3421 of Pope’s Digest was enacted. ' The section appearing in Gantt’s Digest as 1618 seems to have been taken from Cb. XLIY, Revised Statutes, where it appears as § 5. There is a slight, but unimportant, variation in phraseology between Gantt’s § 1618 and § 5 of Oh. XLIY, Revised Statutes, but with respect to each a section immediately following is: ‘ ‘ Charity or necessity on tbe part of tbe customer may be shown in justification of tbe violation of tbe last preceding section.” The quoted provision now appears as § 3422, Pope’s Digest. In appellant’s brief it is urged that tbe law’s intent was “to keep closed on Sunday all stores and general merehándise establishments, including dram shops and saloons. It does prohibit the sale of ‘spirits or wine.’ ” A summation of appellant’s position appears in a footnote. We do not agree that the act of 1885 is to he regarded as “an old Sunday OBlue Law”; nor is.it a regulation based exclusively upon religious considerations. The contrary has been held. An interesting discussion of the subject is to be found in Swann v. Swann, 21 Fed. 299. The opinion was written by Judge Caldwell in a controversy involving validity of a note executed in Tennessee on Sunday, enforcement of which was sought in Arkansas in 1884. Judge Caldwell quoted the Arkansas' statute (now appearing as § 3418 of Pope’s Digest) and § 1617 of Gantt’s Digest. The latter section was repealed, but a new law was passed in 1887 covering the same subject-matter. The 1887 enactment appears in § 3420 of Pope’s Digest. Referring to these provisions, Jndge Caldwell said: ■ “It'is - obvious the statute does not atteinpt to com-' pel the observance of the first day of the week, as a day of rest, as a religions duty. It would be a nullity if it did so. ' In this' country legislative authority is limited strictly to temporal affairs by written constitutions. Under these constitutions there can be no mingling of the affairs of church and state by legislative authority. No citizen can be required by law to do, or refrain from doing, any act upon the sole ground that it is a religious duty. The old idea that.religious -faith, and practice’ can be, and should be, propagated by physical force and penal statutes has no place in the American doctrine of government. Force can only affect external observance; whereas, religion consists in a temper of heart and conscious faith which force can neither implant nor efface. . . . The statute, then, is not a religious regulation, but is the result of a legitimate exercise of the police power, and is itself a police regulation. “Experience has shown the wisdom and necessity of having, at stated intervals, a day of rest from customary toil and labor for man and beast. It renews flagging energies, prevents 'premature decay, promotes the social virtues, tends to repress vice, aids and encourages religious teachings and practice, and affords an opportunity for innocent and healthful amusement' and recreation. . . “While the law does not enforce religious- duties and. obligations as such, it has a tender regard for the conscience and convenience of every citizen in all matters relating to his religious faith and practice. The statute is catholic in its spirit, and accommodates itself to the varying religious faiths and practices.of .the people.” In Scales v. State, 47 Ark. 476, 1 S. W. 769, 58 Am. Rep. 768, 'Chief Justice Cockkill said: '“‘The principle which upholds these regulations underlies, the right- of -the state to prescribe a penalty for the violation of the Sunday law. The law which imposes the penalty operates' upon all' alike, and interferes with no man’s religious be lief, for in limiting the prohibition to secular pursuits it leaves religious professon and worship free.” In Rosenbaum v. State, 131 Ark. 251, 199 S. W. 388, L. R. A. 1918B, 1109, Mr. Justice Wood traced the origin of compulsory Sabbath observance. In the Bosenbaum Case the undisputed evidence showed that the defendant operated a moving picture show in violation of the statute, and a directed verdict of guilty was upheld. A more recent case (1926) is Rhodes v. Hope, 171 Ark. 754, 286 S. W. 877, 47 A. L. R. 1104. Upon undisputed proof that the defendant had sold gasoline on Sunday, in violation of a city ordinance patterned from the state law, the court directed a verdict of guilty. On appeal the judgment was affirmed. The opinion cites Petty v. State, 58 Ark. 1, 22 S. W. 654, and Goff v. State, 20 Ark. 290. Trial courts are empowered to direct verdicts of guilty in misdemeanor cases where the punishment is by fine only if the facts are- undisputed, and where from all the evidence the only inference to be drawn is that the alleged crime has been committed by the defendant in circumstances which do not disclose legal justification. It may be urged .that social intercourse, and personal, professional, and business relationships, have so changed within the past 53 years that the law promulgated in 1885 has become obsolete; that it should be treated as a dead letter decreed by custom and modern convenience to be a relic of other days. Answer to this argument is that courts are interpreters, and not the makers, of laws. As Chief Justice Cockeill said in the Scales Case, “If the law operates harshly, as laws sometimes do, the remedy is in the hands of the Legislature. It is not the province of the judiciary to- pass upon the wisdom and policy of legislation — that is ■ for the members of the legislative department, — and the only appeal from their determination is to their constituency. ’ ’ The defendant in the instant case was guilty of violating § 3421 of Pope’s Digest; and, since the statute imposes a fine only, and not less than $25 could be assessed, it was not error for the court to direct a verdict. We are not willing to say that beer, in the circumstances in which it was being sold, was a necessity. Obviously, the defendant understood that the prosecuting attorney was making the purchase in order to test the law. The conclusion is inescapable that the defendant was keeping his place of business open for general commercial purposes, and that beer was being sold regularly and generally. The next question is whether the sale of beer of the alcoholic content reflected by the record was unlawful in Malvern at the time in question. Act No. 7 of the Extraordinary Session of 1933, p. 20,. § 2, defines beer as “any fermented liquor made from malt or any substance thereof and having an alcoholic content of not in excess of 3.2 per cent, by weight.” Such beer was legalized under terms of the act. By § 27-A, provision was made for special elections in the several counties, upon petition of 51 per cent, of the qualified electors of any county presented to the county court within sixty days from the effective date of act 7. If a majority of the qualified voters opposed the sale of beer, such sale was prohibited. At the succeeding regular election the question might be submitted under the initiative and. referendum amendment to the Constitution (which permits 15 per cent, of the electors to initiate a law). Act No. 108 was approved March 16,1935. It authorizes the manufacture, sale, transportation, possession, or other disposition of spirituous, vinous, and malt liquors. By § 6 of Art. 1 the word “malt” is defined as “liquor brewed from the fermented juice of grain and containing more than five per centum of alcohol by weight.” There is this further provision: “Beer containing not more than five per centum of alcohol by weight and all other malt beverages containing not more than five per centum. of alcohol by weight are not defined as malt liquors, and are excepted from each and every provision of this act. It is further provided that malt and vinous beverages containing more than 3.2 per cent, of alcohol by weight and not more than 5 per cent, of alcohol by weight shall be taxed and regulated as provided for malt and vinous beverages containing not more than 3.2 per cent, alcohol by weight under the provisions of act 7 [of 1933].” It will be observed that after defining the word ‘malt” to mean liquor containing more than 5 per cent, alcohol, beer containing not more than 5 per cent, alcohol is excluded from the provisions of act 108 and ‘ ‘ malt and vinous beverages” containing more than 3.2 per cent, of alcohol, and not more than 5 per cent, of alcohol, “shall be taxed and regulated as’provided for malt and vinous beverages containing not more than 3.2 per cent, alcohol. ” The intent, as expressed by the language used, is to classify beer having an alcoholic content • of not more than 5 per cent, as a malt beverage, as distinguished from malt liquor. Section 1 of art. 7 of act 108 permits 35 per cent, of the voters of any county, city, town, district, or precinct, to petition the county court for an election upon the proposition whether'“spirituous, vinous or malt liquors shall be sold, bartered, or loaned therein.” Section 4 of art. 7, with respect to such election, directs that if a majority * ‘ shall be in favor of prohibiting the sale of liquor in the territory in which the election shall have been held, the law prohibiting such sale shall be in full force and effect at the expiration of sixty days from the date of the entry of the certificate of the canvassing board.” Penalty for violation is a fine of not less than $60 nor more than $100, and confinement in the county jail for not less than 20 days nor more than 40 days. An election was held in Malvern in 1935 on petition of 218 of the 492 qualified electors of the city — 218 being more than 35 per cent, of 492. The county court order recites that such election was held under authority of act 108 to determine whether “intoxicating liquors shall be 'sold, loaned, bartered in any hotel, dispensary, club, restaurant, or any other place or thing within the city of .Malvern.” By a vote of 179 to 118 such liquor traffic was prohibited. It is contended by appellant that because the Malvern «lection was under authority of act 108, and because the ■election had for its purpose the sounding of public sentiment, on the question of selling liquor as defined in the .act, beer of an alcoholic content of. not more than 5 per cent, was not’within the purview, and could not be, since act 108 by express terms declares siich beer to be a beverage and not a liqnor. Therefore, it is insisted, control of sale of the beverage is referable to act 7 of 1933. It is further argued that act 7 contemplates the county as a unit, and under such act a city may not prohibit the sale of beer. It must be conceded that the language of acts 7 and 108 in so far as, it has been quoted by appellant justifies the result contended for. Act 7, by its terms, contemplates a county-wide vote, and sections one to four, inclusive, of art. 7 of act 108, deal with a drink having an alcoholic content of more than five per cent. If act 108 ended where appellant has terminated his citation of its terms, clearly his position would be sound. But we must consider all of the act, rather than its partial recitals, to determine the legislative intent. Section 5, art. 7, act 108, contradicts appellant’s theory that the beer in question may be legally sold until, in a county-wide election conducted under authority of act 7 (on petition of 51 per cent, of the electors) the voters have expressed opposition to the traffic. ■ Section 5 is: “It shall be unlawful for anyone to sell, barter or loan, directly or indirectly, any beverage containing any alcohol; or any liquid mixture or decoction of any kind which produces or causes intoxication in any county, city, town, district or precinct in which the sale, barter or loan of spirituous, vinous or malt liquors is or shall be prohibited in accordance with the local option law.” This section permits prohibition of the sale of malt liquors, etc., and it contemplates procedure as set out in the act — not procedure under authority of act 7. The first six words on page 260 of the printed acts of 1935 are: ‘ The word ‘ malt ’ shall mean liquor. ’ ’ The optional vote authorized by § 1 of art. 7 relates to the sale of “spirituous, vinous or malt liquors,” and. the sale of such may be prohibited in the manner set out in act 108. The election in Malvern was in conformity with act 108. The only vice urged against it is that authority to prohibit the sale of beer of not more than 5 per cent, alcoholic content is not within the act. Article 9 of act 108 repeals all conflicting laws or parts of laws— “Provided, however, that this act is not intended to repeal or conflict in any way . . . with the taxing provisions of act No. 7 of the Extraordinary Session of the Forty-Ninth General Assembly of the state of Arkansas, approved August 24, 1933.” Specifically, the Legislature, by the language of art. 9, has said that it did not intend to repeal the taxing provisions of act 7. It did intend, as we have seen, to substitute a permissive and increased alcoholic content for beer; and it is our view that it intended to provide new local option machinery. It will be observed that' the mandate of § 5 of act 108 applies only to areas where the “sale or loan of spirituous, vinous, or malt liquors shall be prohibited in accordance ivith the local option law.” . If it be said that the only local option law applicable to beer of not more than 5 per cent, alcoholic content is act 7 of 1933, we are met with the contradiction that the 1933 enactment does not apply to cities, towns, precincts, or districts. It is inconceivable that the framers of act 108, and the Legislature that passed it, could have intended, by § 5, to require proponents of prohibition to proceed under a statute which could afford them no relief in any subdivision less than a county. Article 9 dis pels snob, theory. It will not be assumed that the lawmakers, in one sentence, extended an option, and in another sentence withdrew it. It is not necessary, in this opinion, to determine whether the language in § 5 of act 108 prohibits the sale in dry territory of a beverage containing “any alcohol,” or whether it merely prohibits sale of ‘ ‘ a liquid mixture or decoction of any kind which produces or causes intoxication.” Following the word “alcohol” in § 5 a semicolon is used, followed by “or,” a co-ordinating particle that marks an alternative. However, proof in the case at bar is sufficient to show that the beer sold by appellant contained enough alcohol to cause intoxication in certain circumstances, and with respect to certain people. Dr. Manglesdorf, the chemist, testified that 3.2 beer is intoxicating “if you drink enough of it.” He also testified: “It is generally conceded by medical men that you can get stimulation and sufficient disorganization of the mental equilibrium to become intoxicated [by drinking 3.2 beer].” In State v. Hutchinson, 194 Ark. 1057, 110 S. W. 2d 7, the defendant below was charged with selling intoxicating liquors in a pool room. The question was whether 5 per cent, beer (as distinguished from beer having an alcoholic content of “more than 5 per cent.”) was intoxicating. In discussing act 108 of 1935 the opinion says: “[The act] says in the latter part of § 6 [of art. 1] that ‘beer containing not more than 5 per cent, of alcohol by weight and all other malt beverages containing not more than 5 per cent, of alcohol by weight are not defined as malt liquors, and are exempt from each and every provision of this act.’ This is far from saying that 5 per cent, beer is not an intoxicating liquor. The effect of the words quoted above are that said act 108 excludes from its taxation and regulation malt and vinous beverages containing more than 3.2 per cent, of alcohol and not more than 5 per cent, of alcohol.” The opinion then mentions certain provisions of act 7 of 1933, and continues: “We are not willing to construe these acts as saying that the Legislature passing them intended to say that 5 per cent, beer was non intoxicating liqnor. Such a declaration on the part of the Legislature would be arbitrary and contrary to what everybody knows.” Other authority is to the same effect. The judgment of conviction for violating the Sunday law is affirmed. . Violation of § 5 of art. 7 of act 108 is punishable by a fine of not less than $20 nor more than $100. No jail sentence is -imposed. The trial court directed a verdict calling' for a fine of $60 and imprisonment in the county jail for a period of twenty days. This was error. The judgment rendered on this verdict is reversed and the cause is remanded with directions that the provisions of § 5 of art. 7 are applicable. However, a new trial on this charge must be had. It is so ordered. Smith, J., concurs. McHaNey and Baker, JJ., dissent. Gantt’s Digest, § 1618: “Every person who shall, on Sunday, keep open any store, or retail any goods, wares, or merchandise, or keep open any dram-shop or grocery, or sell or retail any spirits or wine, shall, on conviction thereof, he fined in any sum not less than ten dollars nor more than twenty.” Counsel says: “The appellant . . . has engaged in [the cafe] business for a number of years. Beer of the alcoholic content testified to with respect to the bottle sold to the Prosecuting Attorney is a part of the regular stock of provisions and refreshments regu-» larly served to customers of his restaurant business. The sale of such beer is now legal in this state and in the city of Malvern, and unless the prosecution and the lower court can invoke this old Sunday Blue Law to sustain a penalty against the appellant, he did not commit an illegal act. Therefore, under the law, the bottle of beer must-be regarded and treated as any other beverage or refreshments generally and customarily served in restaurants and cafes. Since its sale is not illegal per se, it must be classed along with coffee, milk, tea, coca-cola, or other bottle beverages usually served at restaurants with food and meals. The beer sold is not wine, and neither is it ‘spirits’ as now defined by act 108.” Gantt’s Digest, § 1617: “Persons who are members of any religious society, who .observe as Sabbath any other day of the'week, than the Christian Sabbath or Sunday, shall not be subject to the penalties of this act, so that they observe one day in seven, agreeably to the faith and practice of their church or society.” Pope’s Digest, § 3420: “No person who from religious belief keeps any other day than the-first day of the week as the Sabbath shall be required to observe the first day of the week, usually called the Christian Sabbath, and shall not be liable to the penalties enacted against Sabbath breaking. Provided, no store or saloon shall be kept open or business carried on there on the Christian Sabbath; and provided further, no person so observing any other day shall disturb any religious congregation by its avocation or employment.” In the Rosenbaum Case Mr. Justice Wood said: “The Frank emperors had Sunday .observed; the Code of Napoleon ordered it, and the observance of the Lord’s day has been enjoined by statutes in England from the earliest times. Coming on down to the legislation in the mother country, which forms the basis of such legislation in practically all of the states of the Union, we find that in the reign of Charles II an act entitled, ‘An act fór the better observation of the Lord’s day, commonly called Sunday,’ was passed, which, among other things,, provides: ‘That no tradesman, artificer, workman, laborer, or other person whatsoever shall do or exercise any worldly labor, business, or work of their ordinary callings upon the Lord’s day, or any part thereof (work of necessity and charity only excepted).’ Stat. at Large, 29 Chas. II, Ch. 7, p. 412, (12 Chas. 3, p. 412).” In Collins v. State, 183 Ark. 425, 36 S. W. 2d 75, it" was-held that in the circumstances there shown the trial court did not have the right to direct a verdict of guilty. “Where the punishment may be imprisonment, or where the law provides that it may be fine or imprisonment, the trial judge has no power to direct a verdict.” Citing Roberts v. State, 84 Ark. 564, 106 S. W. 952; Wylie v. State, 131 Ark. 572, 199 S. W. 905; Parker v. State, 130 Ark. 234, 197 S. W. 283; Snead V. State, 134 Ark. 303, 203 S. W. 703; Burton v. State, 135 Ark. 164, 203 S. W. 1023; Huff v. State, 164 Ark. 211, 261 S. W. 654. But in the Collins Case it was held that an instructed verdict may be given where the punishment is by fine only, etc. Section 27-9 of act 7 of 1933, in part, is: “At each general election for state and county offices after the passage of this act, or at a special election called by the county court upon a petition of 51 per cent, of the qualified electors of the county presented within sixty days next after the passage of this act, there may be submitted to the qualified electors of any county in the state of Arkansas so. desiring in the manner provided for the submission in a county of the question under the initiative and referendum provision of the Constitution and laws of the state of Arkansas the question as to whether the sale of beer and light wine containing alcohol not in excess of 3.2 per cent, by weight shall or shall not be permitted within said county for two years in ease the matter is voted on at a general election and in the case of a special election the question shall be voted on as to whether the sale of beer and light wine containing alcohol not in excess of 3.2 per cent by weight shall or shall not be permitted until the day of the next general election.” , Section 5 of art. 7 of act 108 of 1935, in addition to that part quoted iu the opinion, also provides. “Any person who shall sell, barter or loan, directly or indirectly, any such beverage, liquid mixture or decoction in any such county, city, town or precinct, shall, upon conviction, he fined the sum of not less than $20 nor more than $100 for each offense or any sale, barter or loan of any article with the agreement expressed or imposed that the right or title to or possession of any such beverage, liquid, mixture or decoction, shall also pass, shall be considered a sale, barter or loan within the terms of this act.” We pretermit a discussion of Amendment No. 7 to the Constitution, commonly referred to as the Initiative and Referendum Amendment. One of its provisions is: “Fifteen per cent, of the legal voters of any municipality or county may . . . invoke the initiative upon any local measures.” Under “Definition,” the word “measure” is construed to be “any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character.”

David Newbern, Judge. The appellant was convicted in Russellville Municipal Court of driving while intoxicated. He appealed and was again convicted after a jury trial de novo in the circuit court, and he was fined $500. It was allegedly his second such offense. The appellant contends his arrest by a Russellville city policeman outside the city limits was illegal. He also contends that evidence based on a gas chromatograph test of his breath should not have formed the basis of an instructed presumption of intoxication because the machine used was not calibrated on the day the test was given. Because we find it necessary to reverse on the inadequacy of the breath test as a basis for the presumption, we will not need to deal with the arrest question. The appellant was arrested and tested for bodily substance (breath) alcohol content on May 13, 1978. Although there was some testimony as to his actions and appearance indicating he had been drinking, the appellee rests its argument here on the correctness of the jury instruction of the presumption of intoxication based on the gas chromatograph test. The authority for the presumption is Ark. Stat. Ann. § 75-1031(1) (Supp. 1977), which provides, in part, the following: (A) In any criminal prosecution of a person charged with the offense of driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant’s blood at the time alleged as shown by chemical analysis of the defendant’s blood, urine, breath, or other bodily substance, shall give rise to the following presumptions: * * * 3. If there was at that time, 0.10 percent or more by weight of alcohol in the defendant’s blood, urine, breath or other bodily substance, it shall be presumed that the defendant was under the influence of intoxicating liquor. * * * (c) The chemical analysis referred to in the above paragraphs shall be made by a method approved by the Arkansas State Board of Health. The method approved may be proved by a certificate duly acknowledged by a representative of the State Board of Health and said certificate shall be admissible per se in any criminal prosecution and shall not be subject to any objections on grounds of hearsay. Provided, however, said machine has been duly certified at least once in the last three months and the operator thereof is properly trained and certified. This law shall apply only in misdemeanor cases and not in felony cases. Ark. Stat. Ann. § 75-1046(b) (Supp. 1977), says that for such an analysis to be valid, it must have been “performed according to methods approved by the State Department of Health or by an individual possessing a valid permit issued by the State Department of Health for this purpose ...” The statute provides the department may approve measuring methods or techniques and, in part “(c),” may “promulgate rules and regulations necessary to carry out the purposes of [the] act.” Arkansas Department of Health Regulation, AP-340 (Rev. 1971), provides: Breath Testing Instruments. Instruments designed to test direct breath samples shall be calibrated no less frequently than once each day the instrument is in operation by a Senior Operator or Operator Supervisor, using appropriate solutions of ethyl alcohol, and using methods and techniques for calibration recommended by the manufacturer of the calibration device as approved by the Department. In this case, the evidence was that the machine was calibrated on May 10 and May 15,1978, but not on May 13,1978, the day the appellant was tested. Of course, the appellee does not argue that because the operator was certified he could disregard the health department regulations dealing with the method of testing for alcohol presence. Although the language of the statute is disjunctive, we find the intent of it to be that even certified operators may not ignore the regulations on operation and maintenance of the chromatograph, if their testimony is to form the basis of a presumption of intoxication. The appellee argues, however, that there has been “substantial compliance” with the regulations, citing Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975). The Munn Case concerned a finding by the court that there was no prejudicial effect where a blood sample was not tested within two hours of the alleged offense as required by health department regulation. The sample was taken about 12:40 a.m., and the alleged offense occurred at 9:30 p.m. the previous evening. Testing within this three-hour period was held to have been substantial compliance with the two-hour requirement where the testimony indicated that all other requirements were met and that blood alcohol content decreases as time passes. We cannot find substantial compliance here, however. All we know is that the instrument was calibrated on May 10 and again on May 15. Although there is some testimony that the calibration procedure revealed, on the 15th, that the instrument was in the same, proper condition it had enjoyed on the 10th, in view of the clear requirement of the regulation, we should not allow speculation as to its condition on May 13. We hold there was no substantial compliance here, and unlike the Munn Case, there is no evidence upon which we can conclude this failure to abide by the regulation was not prejudicial to the appellant. In addition, the appellant vigorously complains there was no testimony given that a measurement of body substance alcohol content “by weight,” as required by the statute, was conducted. As the trial judge stated in the record before us, this may raise a serious question of testimony adequate to raise the statutory presumption, but we need not address it in view of the other inadequacy we have found. We hold the evidence was not sufficient to form the basis of the instructed presumption. The other evidence produced in the case would not have supported a guilty verdict, and because we find the case has been fully developed, we dismiss rather than remand for new trial. Edens v. State, 235 Ark. 284, 357 S.W. 2d 641 (1962). See also, Paschal v. State, 245 Ark. 396, 432 S.W. 2d 879 (1968). Reversed and dismissed.

David Newbern, Judge. This case was appealed to the Arkansas Supreme Court and assigned to the Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3). Here we are to decide whether the chancellor abused his discretion in refusing to permit a plaintiff to amend his complaint to seek damages when it became apparent the court could not grant his original request for specific performance. In October, 1977, the appellant ordered a new, 1978 Chevrolet “Indianapolis Pace Car” Corvette from the appellee. In February, 1978, the appellee returned the appellant’s $500.00 deposit, and in the accompanying letter stated it had been informed that customer orders for those cars could not be filled by Chevrolet. In March, 1978, the appellant filed a complaint requesting an order restraining the appellee from selling or altering “subject automobile.” This order was sought on the assumption, and with purported reason to believe that the appellee would receive at least one “Pace Car,” and that any such car received should be regarded as sold to the appellant. The complaint also requested specific performance of the contract for the sale of the car. The record does not disclose the disposition of the request for the restraining order. In May, 1978, a “Pace Car” was delivered to the appellee which sold it to its wholly owned subsidiary, Cliff Peck Leasing, Inc., which in turn sold it to Jim Spears, an employee of the appellee. The car was sold by Spears, and its whereabouts, according to testimony, were unknown to the appellee at the time of the trial. As early as August, 1978, the appellee had stated in discovery responses that it was no longer in possession of the car and that the appellee did not know who had possession of it. A trial was held on October 6, 1978, and toward the close of the testimony the appellant offered an.amendment to the complaint which would have changed it to one seeking damages for breach of contract. The court denied the amendment and dismissed the complaint with prejudice on the ground that it could not award specific performance and could not allow an amendment which stated a new cause of action. The appellant claims the chancellor abused his discretion, and we agree. The amendment was not one which, as the appellant argues, would have been acceptable as causing the pleadings to conform to the proof. The appellant had offered some evidence which might have supported a restitutionary award, i.e., the difference between what the appellee’s wholly owned subsidiary received for the car and the price the appellant allegedly had agreed to pay for it. But no evidence of a loss to the appellant was produced. However, the chancellor was wrong in saying the amendment offered stated a new cause of action. The term “cause of action” is difficult to define, and we will say only that it consists of facts showing entitlement to relief. A leading case on the definition of the term in the context of amendments to pleadings states the following conclusion: In determining whether a wholly different cause of action is introduced by the amendment technical considerations or ancient formulae are not controlling; nothing more is meant than that the defendant not be required to answer a wholly different legal liability or obligation from that originally stated. Klopstock v. Superior Ct., 17 Cal. 2d 13, 108 P.2d 906 (1941). (108 P.2d at 323) Professor (Judge) Charles E. Clark, as early as the first edition of his Handbook on Code Pleading, made it clear that the rule was an anachronism and thus the term “cause of action” should be broadly defined under the codes as a “group of facts giving rise to one or more rights of action.” Clark, Handbook on Code Pleading, p. 503 (1928). The problem in this area has been whether and at what point the plaintiff should be allowed to change his pleading to show different facts which would give rise to a different type of claim than that originally pleaded. In this case the chancellor was not confronted with that situation. Rather, he was being asked, albeit late in the case, to substitute, for the plaintiff’s request for specific performance, a request for damages. Thus, rather than stating a new “cause of action,” the appellant was asking for a different “remedy.” We recognize the broad discretion a chancellor has to permit or refuse amendments. Cole v. Branch & O’Neal, 171 Ark. 611, 285 S.W.2d 353 (1926). But here it is clear that he stated a reason for refusal to permit the amendment which was incorrect. No prejudice which would have resulted to the appellee from the proposed amendment was shown. No surprising new facts were alleged in the proposed amendment. From the record, it appears that the counsel for the appellee seized upon this reason for urging denial of the amendment only after it was raised by the chancellor. While we are troubled by the apparent knowledge on the part of the appellant of the impossibility of granting the remedy sought originally as early as August, 1977, we do not find that to be a sufficient reason to support the chancellor’s decision, and the chancellor apparently thought nothing of it either. The appellant might have been speculating that evidence at the trial would show the appellee still to have been in possession of the vehicle the appellant alleged to have been sold to him. The chancellor could, under the clean-up doctrine, have entertained the action as amended even though the remedy sought became “legal” as opposed to “equitable. ” Bierbaum v. City of Hamburg, 262 Ark. 532, 559 S.W.2d 20 (1977). He could also have transferred the case to the circuit court. Ark. Stat. Ann. §27-208 (Repl. 1962). Because the chancellor refused to permit the amendment and dismissed the complaint on the basis of an invalid reason, and because it was not shown that prejudice to the appellee would have resulted from the proposed amendment, we hold it was an abuse of discretion for the chancellor to refuse the amendment and dismiss the action with prejudice. Reversed and remanded. We are pleased to note Judge Clark’s view has prevailed, and as indirect beneficiaries of his effort we will not be confronted with this definitional problem in the event we are called on to interpret A.R. Civ. P. 15 which came into effect after this case was tried.

Conley Byrd, Justice. At issue here is the validity of certain regulations of the Alcoholic Beverage Control Board and “Class Six Club Permits” promulgated pursuant thereto, authorizing “Class Six” permittees to sell for consumption on the permitted premises spirituous liquors as defined by the Thorne Liquor Act, Act 108 of 1935. The trial court held that the regulations and permits issued thereunder con travelled the provisions of the Thorne Liquor Act and enjoined issuance of permits. Appellants Walter Hinton, John Cage and Claude Williams, Jr. as members of the Alcoholic Beverage Control Board appeal. The regulation here involved provides in part as follows: “The following regulations apply for Class 6 Club Permits pursuant to the provisions of Ark. Stats. 48-302 (1964 Repl.), this being Section 2 of article 3 of Act 108 of 1935 as amended... “(2) No member of such Club or any officer, agent or employee shall be paid or directly or indirectly receive in the form of salary or other compensation any part of the revenue derived from the disposition or serving of alcoholic beverages beyond the amount of such salary or other compensation as may be fixed and voted at meetings by the members or by the directors or other governing body “(5) The Holder of a Class 6 Club Permit will be authorized to serve on its permitted premises vinous, spirituous or malt liquors ... to the Club’s adult members, and the members of their families over the age of 21 and duly qualified adult guests . . . and to assess an appropriate charge therefor .... “(7) Each licensee shall keep complete and accurate records of alcoholic beverages purchased “(9) All wholesalers of alcoholic beverages are prohibited from selling to holders of Class 6 Club Permits.” The Arkansas Alcoholic Control Act, or Thorne Act, Act 108 of 1935, was enacted following the adoption of the twenty-first amendment to the United States Constitution. This comprehensive act, providing for regulation of the manufacture, distribution and dispensing of spirituous, vinous and malt liquors through the issuance of permits, with minor amendments, is codified under Title 48 of Arkansas Statutes. It provides as follows: “ARTICLE I “Section 1. The word ‘person’ as used in this Act shall include any and all corporations, partnerships, associations or individuals. “Section. 2. The word ‘manufacturer’ shall mean, unless otherwise specified, any person engaged in the business of distilling, brewing, making, blending, rectifying or producing for sale in wholesale quantities alcoholic liquors of any kind, including whiskey, brandy, cordials, liquors, also beers, or other liquids containing alcohol except wines. “Section 3. A ‘dispensary’ shall mean any store which, under the provisions of this Act, and having paid all taxes required by the State, sells at retail in unbroken packages for non-consumption on the premises any intoxicating alcoholic liquor as defined by this Act. “Section 4. The words ‘Commissioner’ or ‘Commissioner of Revenues’ refer to Arkansas State Commissioner of Revenues .... “ARTICLE IT “Section 1. The provisions of this Act shall he enforced by the Commissioner of Revenues of the State of Arkansas .... “Section 3. The Commissioner of Revenues shall have the following powers, functions and duties: “(a) To grant and revoke for canse permits issued under the provisions of this Act. “(b) To fix by rule the standards of manufacture, rectifying and blending in order to insure the use of proper ingredients and methods in the manufacture, rectifying and blending of vinous, spirituous or malt liquors, to be sold in the State. “(c) To adopt rules and regulations for the supervision and control of the manufacture and sale of vinous, (except wines) spirituous or malt liquors throughout the State not inconsistent with law. [Emphasis ours.] “(d) To carry on by its agents or employees inspections of any premises where beer, or spirituous liquors are manufactured for sale or sold.” “ ARTICLE III “Section 1. (a) It is hereby declared to be the public policy of the State that the number of permits in this State to dispense vinous, (except wines) spirituous or malt liquor shall be restricted, and the Commissioner of Revenues is hereby empowered to determine whether public convenience and advantage will be promoted by issuing such permits .... “Section 2. No vinous, (except wines) spirituous or malt liquors shall be manufactured in this State for storage or sale at retail within the State after this Act becomes effective without a permit therefor issued by the Commissioner of Revenues as herein provided. No person shall sell vinous, spirituous or malt liquors in this State, except as provided in this Act, provided the provisions of this Act shall not apply to the manufacturer, sale, and distribution of wines in this State. “There shall he six kinds of permits, each of which shall be distinctive in color and design so as to be readily distinguishable from each other, to-wit: (1) Distiller’s permit; (2) brewer’s permit; (3) rectifier’s permit; (4) wholesaler’s permit; (5) dispenser’s permit, and (6) hotel, restaurant or club permit. “Section 3. (a) Any person may apply to the Commissioner of. Revenues for a permit to manufacture, distil], transport, store and sell to a wholesaler, jobber or distributor spirituous, vinous (except wines) or malt liquors to be used and sold for beverage purposes .... “(c) A distiller or manufacturer may, under such rules as may be adopted by the Commissioner of Revenues, sell, deliver or transport only to (1) wholesalers, (2) rectifiers, (3) export out of the State. “Section 4. (a) Any person may apply to the Commissioner of Revenues for a permit for rectifying, purifying, mixing, blending or flavoring of spirituous liquors or the bottling, warehousing or other handling or distribution of rectified distilled spirits .... “(b) Any rectifier may, under such rules as may be adopted by the Commissioner of Revenues, sell, deliver, or transport only to (1) wholesalers, (2) other rectifiers, (3) export out of the state. “Section 5. Any person other than a distiller, manufacturer or rectifier, may apply to the Commissioner of Revenues, for a permit to sell spirituous, vinous (except wines) or malt liquors at wholesale .... “No wholesaler shall sell or contract to sell any spirituous, vinous, or malt liquors to any dis- pens ary, hotel, restaurant or club, who is not duly authorized under this Act to receive, possess, transport, distribute or sell same. ‘‘Section 6. Any person, other than a distiller, rectifier or wholesaler, may apply to the Commissioner of Revenues for a permit to sell and dispense vinous or spirituous liquors for beverage purposes at retail .... Such permit shall contain a description of the premises permitted and in form and substance shall be a permit to the person therein specifically designated to sell and dispense at retail spirituous or vinous liquors. “All such sales shall be in unbroken packages and the same shall not be opened or the contents or any part consumed on the premises where purchased.” The duties of the Commissioner of Revenues set out in the 1935 Act have been transferred to appellants by Acts 1951, No. 159. Thus we see that under Acts 1935, No. 108, the Commissioner of Revenues could only “adopt rules and regulations for the supervision and control of the manufacture and sale of vinous, (except wines) spirituous or malt liquors . . . not inconsistent with law.” By Article III, Section 1, it is provided “ . . . that the number of permits ... to dispense . . . liquor shall be restricted, and the Commissioner of Revenues is . . . empowered to determine whether public convenience . . . will be promoted by issuing such permits.” Since a “dispensary”, under Article I, Section 3, is defined as any . . . “store which . . . sells at retail in unbroken packages for non-consumption on the premises any intoxicating . . . liquor,” it appears that the use of the word “dispense”, as used in connection with the permits the Commissioner was authorized to supervise, should have the same limitation. That the word “dispense” was used, in Article III, Section 1, to prohibit the on-premises consumption of intoxicating liquors is further demonstrated by Article III, Sections 2, 3, 4, 5, and 6. While it is true that section 2 provides for six classes of permits, the last of which is “(6) hotel, restaurant or club permit,” it also provides that, “No person shall sell vinous, spirituous or malt liquors . . . except as provided in this Act. . . . ” Under the scheme of the same Article, section 3 permits a person to apply for a distiller’s or manufacturer’s permit; section 4 permits a person to apply for a rectifier’s permit; and section 5 permits a person to apply for a wholesaler’s permit, all of whom are prohibited from selling “ ... to any dispensary, hotel, restaurant or club, who is not duly authorized under this Act to receive, possess, transport, distribute or sell same.” Section 6 of the same Article permits a person to apply for a retailer’s permit but with the restriction that the permit “to sell and dispense at retail ...” shall “ ... be in unbroken packages and the same shall not be opened or the contents or any part consumed on the premises where purchased.” Thus we have a statutory scheme authorizing the issuance of permits for dispensing spirituous liquors and authorizing persons to apply for distiller’s permits, rectifier’s permits, wholesaler’s permits and retailer’s permits, but no such authorization is given for a permit for on premises consumption of spirituous liquors. We can find no reason for legislative designation of permits that could be ajiplied for except to exclude by implication application for any other type of permit, Cook Commissioner of Revenues v. Arkansas Missouri Power Corp., 209 Ark. 750, 192 S.W. 2d 210 (1946). Therefore we hold that appellants were not authorized to issue permits for on premises consumption of vinous, spirituous or malt liquors. It necessarily follows that the regulations for Class Six Club Permits are not authorized by law and are invalid. Affirmed.

Holt, J. Appellant brings this appeal from a deci sion of the Pike circuit court, sitting as a jury, awarding judgment in favor of appellee. The only error pressed upon us here by appellant is that there was no substantial evidence upon which the lower court’s judgment could be based. We cannot agree with this contention. The facts, as disclosed by the record and which are practically undis puted, are substantially as follows: On May 6, 1937, the appellee, 0. C. Mitchell, bought a 1933 model V-8 Ford sedan automobile from the Burch Motor Company at Hot Springs, Arkansas, and on the same day purchased from appellant, Lumbermen’s Mutual Insurance Company, through its agent, H. W. Conde, a liability insurance contract covering the automobile. The policy contained the following provisions: “The Lumbermen’s Mutual Insurance Company, Mansfield, Ohio (a mutual company, hereinafter called the company). “Does hereby agree with the insured, named in the declaration made a part hereof, in consideration of the payment of the premium and of the statements contained in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy: “Coverage E- — -Collision or upset — Actual Cash Value — Less $50 deductible — Premium—$7. “To pay for loss consisting of damage to the automobile caused by accidental collision with another object or by accidental upset, but only for the amount of each separate loss, when determined, in excess of the deductible sum.” On August 29, 1937, Alton Mitchell in company with his brother, Jessie Mitchell, with the permission of ap-pellee, their father, were driving the car in question and were involved in a collision near Okolona, Arkansas, which tore off the fan belt and the radiator, burst off the lines to the manifold heads which cover the valves and tore off two pieces of bolts from the manifold and otherwise seriously damaged the motor. Immediately after the collision appellee notified appellant and upon instructions from it, the car was towed to the Burch Motor Company ’s garage at Hot Springs, Arkansas, to be repaired. Two weeks later appellee was notified that the car was completely repaired, and after paying the Burch Motor Company $50, his part of the repair bill, he attempted to drive the car to his home in Grlenwood, 32 miles away. When he had driven the car less than a mile, it began to “pop, jump and fail to function correctly.” He finally managed to drive the car home, but.the next morning, after driving it three or four miles, the motor completely failed to function and appellee towed the car back to the Burch Motor Company. • Mr. 'Burch, manager of the Burch Motor Company, and Mr. Conde, agent of appellant insurance company, promised appellee that they would see that the car was completely repaired and fixed. The car remained with the Burch Motor Company for several weeks, but appellant refused to authorize the Burch Motor Company to make further repairs on the car. On several occasions, Mr. Conde promised appellee and ap-pellee’s attorney that he would authorize the Burch Motor Company to fix the damaged car, but failed to keep his promise. After several Aveeks delay, appellant finally refused to make the additional repairs and appellee authorized the Burch Motor Company to make the repairs at an additional expense of $69.20. These repairs called for a new motor. It would cost considerably more money to repair the old engine than to put in a new motor. The motor was in good condition prior to the collision. The judgment of the court below was as follows: “The only question for determination of the issues involved in this case is Avhether or not the défective condition of the motor of plaintiff's car, after the repair of the car by the Burch Motor Company, was caused by the collision which occurred August 29, 1937. “Plaintiff testified that the motor was in excellent condition prior to this collision and that as the result of the 'collision the top of the manifold of the motor was bursted and that the motor completély failed to function after a drive of some thirty miles following the repairs. He notified defendant’s agent and the motor company and demanded that the repairs of the motor be made, and defendant declined to make such further repairs, although there is some testimony that they promised to do so. The plaintiff is corroborated in his testimony as to the cause of the motor trouble by one of the parties who was in the car at the time of the collision, the mechanic who repaired the motor prior to the collision, and other testimony of expert character. “The preponderance of .the evidence justifies the conclusion that the defendant failed to fully repair plaintiff’s car following the collision under their contract, and since plaintiff has been damaged in the sum of $69.20 for their failure to do so after due notice and demand.” Then follows the judgment of the court in favor of appellee. Since, in accordance with a long established rule of this court, we must give the judgment of the trial court, when sitting as a jury, the same weight and effect that we give to the. verdict of a jury, it is our duty to affirm where there is substantial testimony to support his finding. Giving to the facts, as we find them in this record, their strongest probative force in favor of appellee, it is our view that the evidence is of a substantial nature and the judgment will accordingly be affirmed.

Ernie E. Wright, Chief Judge. Appellants seek reversal of the decree of the trial court dismissing their complaint for partition of forty acres of land and confirming title solely in appellees. Various points for reversal are urged by appellants. However, as we conclude the decree should be affirmed on the restoration of a lost deed it is unnecessary to discuss the other points raised by appellants. Henry Young acquired title to the SW 1/4 of the SE 1/4 of Section 7, Township 11 North, Range 30 West in Crawford County, Arkansas in 1905. Appellants and appellees all claim title through Henry as the common source. In 1918 he mortgaged the 40 acres along with 160 acres of adjoining land to the Federal Land Bank. In 1925 his son, Edward Young, purchased the 160 acres from Henry Young and wife, and the deed was duly recorded. Appellees, Everett Young and his wife Maggie Young, alleged in their counterclaim that Edward Young also obtained a deed from Henry Young to the forty acres but that it had been lost or destroyed without recording. After hearing extensive testimony the Chancellor found the appellees had proven by the clearest, most conclusive and satisfactory proof that Henry Young and his wife executed and declined a conveyance of the forty acres to Edward Young in 1926, reserving a life estate in themselves, and that the deed had been lost or destroyed and should be restored. Henry Young died in the mid 1930s and his widow died in the early 1950s. Edward Young and his wife Lucy took possession of the forty acres and exercised exclusive control over it along with the 160 acres after the death of Henry Young’s widow. Edward Young died in 1957 and in 1967, Lucy Young executed a deed to the forty acres to Everett Young; and in April 1978 she joined in adeed with the children of her and Edward Young conveying the land to the son, Everett Young. Everett Young and his wife, Maggie, have exercised exclusive control over the forty acres since 1967 and, while they have not lived upon the land, they have utilized it in various ways, claimed ownership and paid the taxes. The Court found title in appellees was also established by adverse possession. It is undisputed that appellees have record title to at least a one-half interest in the forty acres, and appellants would have an inherited interest as decedents of Henry Young only if appellees failed to establish a deed was executed and delivered by Henry Young and his wife to Edward Young or failed to establish ownership by adverse possession. We look then to the evidence before the court supporting the decree finding that a deed conveying the forty acres was in fact executed and delivered in 1926 by Henry Young and his wife to Edward Young. Lucy Young, widow of Edward Young, age 85, testified she and her husband bought 160 acres from his father, Henry Young, in 1925 and that in October, 1926, Henry Young and his wife made and delivered a deed to the forty acres in dispute to Edward at Mountainburg and Edward brought the deed home. Edward took over the mortgage payments on the land. Henry and his wife reserved the right to. live on the forty until they died. Henry died in 1935 and Cordelia died in 1951. Lucy kept the deed at home. While she was away someone entered the home, tore things up and the deed and box it was in was missing. The deed was sent to the Federal Land Bank and returned when the loan was paid off. Edward made the mortgage payments until 1926 and until the mortgage was paid off in 1948. Numerous receipts from the Federal Land Bank evidencing loan payments by Edward Young were received in evidence, along with a letter from the Bank’s affiliate office in Fort Smith dated September 18, 1948, to Edward calling attention that taxes had not been paid on the forty acres and referring to the land as belonging to Edward. At that time Cordelia was still living upon the forty. Edward’s brothers and sisters all knew about the deed. She doesn’t know why they failed to record the deed. She and her husband took possession of the forty acres after Cordelia Young died, claimed to own it and utilized it with the rest of the farm. The 200 acres was under one fence. Harrison Young, a brother of Everett, testified his grandfather and grandmother lived on the forty acres until they died, and they recognized his father, Edward Young, and wife as being the owners of the land. His mother had possession of the forty acres after the death of his grandfather and grandmother and it was just part of the one farm. In 1965 he saw the deed for the forty that had been executed by his grandparents to his dad and mother. The deed was in the old home place. He looked for the deed after the house was ransacked but did not find it. Mrs. Dutton testified she is a sister of Everett Young and that her father, Edward Young, claimed ownership of the forty as far back as she remembers. She worked like a man on the forty to help pay off the mortgage. The mortgage was paid off in 1948 or 49. Her father, Edward Young, had possession of the whole farm including the forty and after his death her mother had possession. In 1963 her mother showed the deed to the forty acres to her and her husband. Appellee Everett Young testified he was born on the 160 acres and ownership of the forty by his father had been discussed by family members through the years. In 1975 Jerry Young commented to Everett that he knew he had bought the whole place from his mother and Everett confirmed that he had. Jerry asked if there would be a chance to buy 5 or 10 acres, and gave him a card with his phone number on it. The card was received in evidence. His father and mother and he had paid taxes on the forty acres for many years. He saw the deed in 1953. His dad got the papers out and showed them to him. The deed was stolen or taken by someone. He knew where it was kept in his mother’s home. Someone ransacked the place while she was away in Texas. They could not find the papers after that. He has paid the taxes on the forty since 1966, has put up most of the fencing, he and his sons cleared about ten acres nine years ago, he has fruit trees on it, and has been raising corn and vegetables on it. When he bought the land from his mother he did not know the deed from his grandparents to this father had not been recorded until after he had paid for the land. Katherine Stewart, one of the appellants, testified she took Edward Young’s widow, Lucy, to the welfare office in the late 60s or early 70s and she had to have her deeds. They found evidence from the papers this forty acres was in her name. They put it down that she owned the forty acres, and she told them she owned it. It is well settled the chancellor’s findings of fact will not be reversed unless clearly against the preponderance of the evidence. Gibson v. Heiman, 261 Ark. 236, 547 S.W. 2d 111 (1977). The testimony as to the execution and delivery of the deed of Henry Young and wife to Edward Young, supported by testimony of various witnesses that they had seen the deed, the long exclusive possession of the land and payment of taxes by Edward Young, his widow and the appellees are sufficient to support the finding of the chancellor that the execution and delivery of the deed and the loss of same was established by clear, conclusive and satisfactory evidence. Isgrig v. Thomas, 219 Ark. 167, 240 S.W. 2d 870 (1951); Carpenter v. Jones, 76 Ark. 163, 88 S.W. 871 (1905). Affirmed.

George Rose Smith, Justice. The appellants, as the surviving children and sole heirs of Lois Thompson Henry, brought this suit to quiet their title to an 87.29-acre tract of land in Union county. The principal defendant is the appellee Alta Goodwin, who conveyed the land to the plaintiffs’ mother, Mrs. Henry, in 1973 by a warranty deed and later by what amounted to a correction deed. The chancellor, finding that the effect of the deeds was to create an express trust in favor of Mrs. Goodwin, dismissed the appellants’ complaint. For reversal the appellants contend, first, that no trust was created, and second, that Mrs. Goodwin is precluded by estoppel and by the clean hands doctrine from asserting her claim to the land. In 1973 Mrs. Goodwin, then about 83, learned that she would be eligible for supplemental Social Security income if she got rid of her land and did not have more than SI,500 in cash. She consulted Mrs. C.B. Attaway, who had been a real estate broker for over 30 years. Mrs. Attaway advised Mrs. Goodwin to convey the land to some third person and to have that person deed the land back to Mrs. Goodwin, so that the second deed could be recorded if the grantee predeceased Mrs. Goodwin. Mrs. Goodwin’s niece, Mrs. Henry, agreed to hold the title for Mrs. Goodwin. Mrs. Goodwin executed a warranty deed to Mrs. Henry on November 8, 1973, which was promptly recorded. Mrs. Henry reconveyed the land to Mrs. Goodwin on April 3, 1974, but that deed was not then recorded. Both deeds contained defective descriptions. On July 19, 1974, Mrs. Goodwin executed a second deed to Mrs. Henry, with a correct description. Mrs. Henry did not execute a second deed back to Mrs. Goodwin, but she did give Mrs. Goodwin a letter that said: “Since a more complete description of your land was required I took another Deed from you last Thursday. I will deed it back to you when you have made other arrangements to take care of your medical expenses.” Mrs. Goodwin also deposited certain cash in a joint savings account with Mrs. Henry. It happened that Mrs. Henry, the younger of the two women, died on December 31, 1975. Within the next seven days Mrs. Goodwin recorded the deed to her from Mrs. Henry and also conveyed the land to Mrs. Attaway, now a co-defendant, who agreed to hold the title for Mrs. Goodwin. One of the appellants, John Hugh Henry, acted as an executor of his mother’s estate. He did not then question Mrs. Goodwin’s assertion that she owned the land and the savings account. Neither item was listed in the inventory of Mrs. Henry’s estate. The money in the account was turned over to Mrs. Goodwin. Later on the appellants apparently changed their minds and brought this suit to recover the land from Mrs. Goodwin. The chancellor reached the right result, although we do not agree that a valid express trust was created. Equity, however, will impose a constructive trust when a grantee standing in a confidential relation to the grantor orally promises to hold land for the grantor and later refuses to perform his promise. Walker v. Biddle, 225 Ark. 654, 284 S.W. 2d 840 (1955). The appellants, as heirs of their mother, paid nothing for the land and so stand in no better position than she would have occupied. Baker v. Applen, 181 Ark. 424, 26 S.W. 2d 109 (1930). “A confidential relation exists between two persons when one has gained the confidence of the other and purports to act or advise the other’s interest in mind.” Restatement, Second, Trusts, § 2, Comment b (1957). Here the confidential relation and the other material facts relating to the constructive trust are shown by clear and convincing evidence; indeed, the testimony is virtually undisputed. John Hugh Henry, one of the appellants, testified that for 18 years before his mother’s death she and her aunt, Mrs. Goodwin, had been neighbors and visited on a daily basis. “Mrs. Goodwin was there every night to watch television. Mrs. Goodwin would come in during the day. She from time to time would take a meal at our home, and she and mother had a very, very good, close and warm relationship.” Mrs. Henry’s deed to Mrs. Goodwin and her letter both show that she was holding the title for her aunt. All the necessary elements of a constructive trust are present. The appellants also contend that since Mrs. Goodwin apparently misrepresented her position to the Social Security agency, she is precluded by estoppel or the clean hands doctrine from claiming the land. In a similar situation, where the owner of property transfers it upon an intended trust which fails for illegality, “a resulting trust does not arise if the policy against permitting unjust enrichment of the transferee is outweighed by the policy against giving relief to a person who has entered into an illegal transaction.” Restatement, supra, § 422. It is thus a matter of balancing conflicting principles of public policy. Among the factors to be considered are (1) whether the grantor’s conduct involves moral turpitude, (2) the extent of the policy making the transaction illegal, (3) whether the enforcement of a trust would tend to prevent the accomplishment of the illegal purpose, (4) whether the transferee was more at fault than the transferor, and (5) whether the transferor was ignorant of the law or of the facts making the trust illegal. Id., Comment b. Here the difficulty is that the appellants, in attacking the validity of the transaction between Mrs. Goodwin and Mrs. Henry, did not develop enough facts to show that the trust in favor of Mrs. Goodwin ought not to arise. The record does not disclose just what the Social Security regulations are. Mrs. Goodwin evidently relied upon the advice given to her by Mrs. Attaway. Mrs. Henry was perfectly willing to participate in the transaction. Mrs. Goodwin testified that she did not tell the Social Security office that she didn’t own the land any more. “I just told them that I had made arrangements to not list it.” Mrs. Henry apparently took the deed to the Social Security office for its inspection, pursuant to a letter from that office saying that the agency was required “to verify the transfer of this property.” Of course, what we say in this opinion is not binding upon the Social Security Administration, which is not a party to the case and may be in a position to recover whatever payments were made to Mrs. Goodwin. We cannot say, however, in balancing the equities, that Mrs. Goodwin’s conduct was so reprehensible that she should lose the property which she has apparently occupied as her home since 1913. Affirmed. We agree. Harris, C.J., and Byrd and Hickman, JJ.

Ernie E. Wright, Chief Judge. This case was appealed to the Arkansas Supreme Court and was transferred to the Court of Appeals pursuant to Rule 29.3. The appeal arises from the denial of a Workers’ Compensation claim, and the judgment of the Pulaski County Circuit Court affirming the decision of the Workers’ Compensation Commission. The appellant initiated claim for benefits for a hernia which claimant contends he sustained while working for Meuwly Machine Works, the principal appellee. It is undisputed that the employer-employee relationship existed on the date of the alleged injury, May 5, 1977, and that the claimant’s average weekly wage was such as to entitle him to the maximum compensation rate of $84.00 per week. There was evidence that appellant sustained injury on the job resulting in the hernia, but the claim was denied by the administrative law judge on the ground that claimant failed to comply with Ark. Stat. Ann. § 80-1313 (e) which requires: In all cases of claims for hernia it shall be shown to the satisfaction of the Commission: (1) . . . (2) . . . (3) . . . (4) . . . (5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after such occurrence. The decision of the administrative law judge was affirmed by the Commission with Commissioner Clark dissenting on the ground that the need for the services of a physician was demonstrated and that the rationale of Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S.W. 2d 929 was applicable. Here the claimant attempted to see a physician on the day following the occurrence of the hernia, and there was evidence that he needed, wanted and sought the services of a physician. The circuit court affirmed the decision of the Commission, and this appeal is from the judgment of the circuit court. The claimant testified that at about 10:30 a.m. on May 5, 1977, he was lifting a piece of machinery when he felt “a real deep burning in my stomach right below the belt line on the right-hand side”. The pain was severe, he quit working and went to the restroom for twenty to thirty minutes. He returned to work but the severe pain continued. He “puttered around”, put in his time, but didn’t actually work much. He made several trips to the restroom, sitting in a position to relieve the pain. He needed to work all the time possible. When he got home he lay down and told his wife about his pain. They discussed his seeing a doctor but decided to wait to see what developed. The following day he went to work, told his foreman he thought he had hurt himself, how it happened and that he had to make arrangements to see a doctor. The claimant called his family doctor, but he was not available. He explained his problem to the nurse or receptionist. On the following Thursday he was able to obtain an appointment with Dr. Richardson. From examination Dr. Richardson found that claimant had a right inguinal hernia and a successful herniorrhaphy was performed. Medical reports of Dr. Richardson were received in evidence. Claimant’s wife testified that the claimant “looked terrible” when he arrived home from work on May 5 and that he was leaning over in a bent condition. He told her about how he started hurting when he lifted something at work. He took a bath, laid down and said he’d wait about seeing a doctor and that maybe it wasn’t anything serious. She testified he normally worked until he went to bed, but this night he went directly to bed. She testified his condition was such that he needed a doctor then. The Commission erred in holding the failure to obtain the attendance of a physician within 72 hours following the occurrence barred claimant from benefits. As pointed out in the Prince case, the statute does not require claimant to prove he was actually attended by a physician within 72 hours after the injury. The statutory requirement is met if the evidence shows that within 72 hours after the injury the claimant’s condition was such that he sought and needed the services of a physician. The case is distinguished from Harkleroad v. Cotter, et al, 248 Ark. 810, 454 S.W. 2d 76, in that there the claimant made no effort to see a physician until eleven days after the alleged injury. Likewise, in Lashlee Steel Company, et al v. Dodridge, 250 Ark. 520, 465 S.W. 2d 691, claimant contended he was injured on a Thursday. He first saw a doctor on the following Tuesday, some five days after the injury. There was no evidence that he attempted to see a doctor within the 72 hour statutory time period. In the case at bar evidence on the part of the claimant tends to show the pain at the time of and following the claimed injury was so severe as to cause him to stop working for twenty to thirty minutes, that he was not able to work in his usual way after the incident, the pain was brought to the attention of the claimant’s wife whose testimony was corroborative of his condition, and the claimant needed and sought the services of a licensed physician within 72 hours after the injury. There was no suggestion of malingering or bad faith on the part of claimant. The judgment of the circuit court is reversed and re manded with directions that the case be remanded to the Workers’ Compensation Commission for further proceedings consistent with this opinion.

( 'onley Byrd, Justice. Appellant Winthrop Rockefeller is the Governor of the State of Arkansas. Acting as such Governor and for the purpose of removing appellees Ernest Hogue and Newt L. Hailey, members of the Arkansas Game and Pish Commission, he appointed appellants Courtney Crouch and Heartsill Ragon as members of a “hearing panel” to prepare, in accordance with judicial standards, a proper record of the charges against each Commissioner. The hearing panel is directed to hear the evidence presented both for and' against removal of the Commissioners and, after the evidence had been properly prepared, to present it to the Governor for Ms decision. Pursuant to the Governor’s plan for the preparation of the record, H. W. McMillan was appointed “evidence officer” to investigate the, charges against the Commissioners and to present such evidence as he considers pertinent to the hearing panel. The Chancery Court enjoined appellants Crouch and Ragon from holding a hearing on the Governor’s charges against the Commissioners upon the basis that the referral to the panel was an unlawful delegation of authority, and also enjoined the Governor from considering as admitted matters contained in a request for admissions (the request being submitted in accordance with the discovery procedure provided for circuit, chancery and probate courts by Act 335 of 1953). For reversal appellants contend, among other things, that the chancery court erred in taking jurisdiction because the Commissioners have an adequate remedy at law. Appellants’ argument is as follows: “In the case at bar, two basic questions arise: (1) Is there a remedy available at law? (2) Is such remedy adequate to give appellees complete and prompt redress for any grievances they conoeive they have because of the actions of appellants? “The answer to the first of these questions is unquestionably in' the affirmative. Section 5 of Amendment 35 grants to the Governor the power of removing appellees after a hearing and also provides that such hearing ‘may be reviewed by the Chancery Court for the first district with right of appeal therefrom to the Supreme Court, such review and appeal to be without presumption in favor of any finding by the Governor or the trial court.’ Thus the people of Arkansas have given to appellees a clear remedy as a matter of right to redress am alleged wrongs which they might receive at the hands of the Governor because of removal proceedings. There are no provisos or special qualifications into which appellees must fit their alleged grievances in order to obtain this right of appeal. Therefore, if appellees feel that they have been wronged or that their rights have been denied or infringed, they have a right to appeal to the Pulaski Chancery Court and to this Court. “The answer to the question whether the remedy available to appellees is complete is also in the affirmative. In order to preclude the maintenance of a suit in equity the remedy at law must be plain, adequate, complete, and as efficient as the remedy in equity. First State Bank v. Chicago R. I. & P. R. R. Co., 63 F. 2d 585, McGehee v. Midsouth Gas Company, 235 Ark. 50, 357 S.W. 2d 282. Certainly the remedy provided for appellees by the people of Arkansas in this case meets all of these standards. By appealing the decision of the Governor to the courts in question, appellees can raise not only the alleged wrongdoings which they have raised in this suit but also any which might occur in the future as the removal proceedings continue. Also, by using the method provided for in the Constitution the appellees can have the matter decided once and for all without resorting to piecemeal litigation. “In this case there would be no irreparable injury if appellees lose this appeal. Just for the sake of discussion, let us assume that the injunction is dissolved by this Court and that the Governor wrongfully removes appellees from office. The only thing which they stand to lose is privilege to serve as Commissioners on the Game & Pish Commission. No question of salary or other renumeration is here involved. Under the law it would not be necessary for the appellees to even miss a single day in office if they had been wrongfully removed. In Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85, (1968), this Court held that the removal would not be complete and the office would not be vacant until the appellate proceedings had been completed. “The people of Arkansas have provided appellees with a complete, adequate and efficient remedy to redress not only the alleged wrongs set forth in their complaints but also any grievances which they may conceive in the future. Since there are no special circumstances requiring the extraordinary remedy of injunction, the lower Court erred in allowing the appellees to substitute their request for an injunction for the appeal provided for in the Constitution.” Since our decisions, Cummins v. Bentley, 5 Ark. 9 (1842), Bassett v. Mutual Benefit Health & Accident Ass’n., 178 Ark. 906, 12 S.W. 2d 893 (1929), recognize that equity lias no jurisdiction where there is a complete and adequate remedy at law, we must then determine whether the Commissioners have a complete and adequate remedy at law. The Commissioners sought to be removed were appointed under Amendment 35 to the Constitution of Arkansas. The amendment was initiated by the people and enacted at the general election. In adopting Amendment 35, the people of Arkansas made provision for an independent commission to regulate hunting and fishing' in the State and to advance conservation of all forms of wildlife. This was something new'in our constitutional fabric. By their action the people created the commission, set its membership, prescribed the qualifications for appointment, and generally outlined the powers of the commission. Section 2 of Amendment 35 conferred upon the Governor the power to appoint the commissioners. Because of the State’s history of two term Governors, a “built in” safeguard was established, staggering the commissioners’ terms of office, in the effort to prevent any Governor from gaining control of the commission. Thus, with seven year staggered terms, it was doubtlessly assumed that no Governor would be able to appoint a majority of the commissioners. Although recent history has shown that this assumption was erroneous in that one Governor served twelve consecutive years, there can be no doubt of the intentions. Section 5 of the Amendment provides: “A Commissioner may be removed by the Governor only for the same causes as apply to other constitutional officers, after a hearing which may be reviewed by the Chancery Court for the First District with right of appeal therefrom to the Supreme Court, such review and appeal to he without presumption in favor of any finding by the Governor or the trial court.” [Rmphasis ours]. In Rockefeller v. Hogue, 214 Ark. 1029, 429 S.W. 2d 85 (1968), we held that the removal phrase “for the same causes as apply to other constitutional officers,” referred to the “high crimes and misdemeanors and gross misconduct in office,” set out in Art. 15, § 1 of the Constitution as grounds for impeachment of officers in general. The United States Supreme Court, In The Matter of John Buffalo, Jr., 390 U.S. 544, 20 L. Ed. 2d 117, 88 S. Ct. 1222 (1968), pointed out that proceedings such as this are adversary proceedings of a quasi-criminal nature and that one so charged is accordingly entitled to “procedural due process ”. AAre understand this ‘ ‘ procedural due process” to mean that one so charged is entitled to a hearing before a tribunal established by law and governed by rules of law previously established, 16 Am. Jur. 2d, Constitutional Law § 580, where he will be entitled to the compulsory attendance of witnesses or a substitute therefor such as the taking of depositions. Anything less would discourage men of character from accepting such positions, for otherwise their leadership and character could be destroyed by an adjudication that they were guilty of “high crimes and misdemeanors and gross misconduct in office” because of a mere failure of proof. That a person charged in an impeachment proceeding is entitled to procedural due process is not a new requirement nor one of recent origin. It received much thought at the time of the impeachment of Sir Francis Bacon. AArhen we analyze Section 5 above, to determine the point or place where the procedural due process is guaranteed a commissioner in a removal proceeding, we also find the answer to the question here involved — i.e. does the commissioner have a complete and adequate remedy at law to correct any alleged errors committed by the Governor in discharging his duties? Under the scheme of government set out in our constitution of 1874, the government of the State was divided into three branches, the executive, the legislative and the judicial. Under Article 7, § 1, the judicial power was vested: “... in one Supreme Court, in circuit courts, in county and probate courts and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established, and, when deemed expedient, may establish separate courts of chancery.” Article 7, § 4 gave the Supreme Court appellate jurisdiction only, unless otherwise specifically provided. Circuit courts were generally given jurisdiction in all civil and criminal cases and superintending control and appellate jurisdiction over inferior courts, Art. 7, § 11 and Art. 7, § 14. The chancery court, as distinguished from the circuit court, has at all times been a trial court or a court of first instance. Even the superintending control and appellate jurisdiction of the circuit courts over inferior courts from 1873 to date has been by way of trial anew on the merits without any regard to any error, defect or other imperfection in the proceedings of the inferior courts (Ark. Stat. Ann. § 26-1308 [Repl. 1962]). Also, when Amendment 35 was adopted, there was no established procedure for a hearing before the Governor or for the compulsory production of evidence to be submitted to him. Nor did Amendment 35 give the right of subpoena to the Governor for the compulsory production of evidence. We note further that while Section 5, supra, provides for a review “by the Chancery Court for the First District” it also refers to the same tribunal as “trial court” when providing that the review and appeal to tliis court is to be “without presumption in favor of any finding by the Governor or the trial court.” (Emphasis ours). Thus we find that at the time of adoption of Amendment 35 there were no procedural rules established for holding hearings before the Governor or for compulsory attendance of witnesses. Nor was any such procedure established by Amendment 35. However, at that time, there existed a procedure established by law for a hearing' before the chancery court, for compulsory attendance of witnesses and preservation of the record. The only conclusion that we can draw, from the language of the amendment equating the finding of the Governor with that of the “trial court” when viewed in the light of the history of the State at the time of the enactment and the requirements of procedural due process, is that a commissioner removed by the Governor is entitled to a trial anew on the merits in the Chancery Court of the First District without regard to any error, defect or other imperfection in the proceedings before the Governor. Because of this we agree with appellants that the commissioners have a complete and adequate remedy by appeal and that the chancery court was without jurisdiction to interfere with the hearing before the Governor. Reversed and dismissed. Harris, C.J. and Fogleman, J., concur. Carleton Harris, Chief Justice. I agree that the Chancellor’s decree should be reversed, but I see no necessity to go further than to say that the Pulaski Chancery Court had no jurisdiction to enjoin appellants from conducting the hearing. In 43 C.J.S., Injunctions, § 116, p. 647, it is stated: “While injunctions have been granted to prevent the improper removal of an officer where there was no doubt as to the illegality of the action and where the removal had not already taken place but was threatened, the general rule, in the absence of statute providing, otherwise, is that equity lias no jurisdiction to enjoin the appointment or removal of public officers, whether the power of appointment or removal is vested in executive or administrative boards * * This is also pointed out in our own case of Davis v. Wilson, 183 Ark. 271, 35 S.W. 2d 1020. in the Vermont case of Emerson v. Hughes, 90 A. 2nd 910, the factual situation was somewhat similar to the case at bar. The governor sought to remove a member of the Liquor Control Board. The Chancery Court granted a temporary injunction restraining the Governor from holding a removal hearing, but on appeal to the Supreme Court, that court held that the Court of Chancery had no jurisdiction to grant the injunction, stating that equity does not, as a general rule, have jurisdiction to enjoin the removal of a public officer. Of course, under Amendment 35 to the Constitution of Arkansas (setting up the Game and Fish Commission), the Governor’s findings may be appealed to the Chancery Court, and thus, at that time (if such an appeal should be perfected), the Chancery Court, by virtue of the constitutional provision, would have jurisdiction — but that jurisdiction is only granted in event of an appeal. The majority are also of the view that the Chancery Court had no jurisdiction to issue the injunction, but my disagreement with the majority is based on the fact that they proceed to set out the procedure to be followed on appeal, if and when the Governor holds that a commissioner should be removed. The question of whether a commissioner who has been removed by the Governor is entitled to a trial anew on the merits in the Chancery Court is not a question presented to this court in the instant litigation, and it is not argued by either side in the briefs submitted. Consequently, the majority is in the position of setting' out the procedure to be followed on an appeal, without giving the parties, both appellants and appellees, the opportunity to brief this question. In accordance with the views herein expressed, I too would reverse the Chancery Court, holding that it had no jurisdiction to enter the injunction, but I would terminate the opinion with that finding, leaving questions that have not yet arisen to be decided, if and when the}' do arise. John A. Fogleman, Justice. I agree fully that the chancery court had no jurisdiction. I agree with the disposition because I think the case must be dismissed for want of jurisdiction. But I do not agree with the means employed to reach the result. There is a much more obvious want of jurisdiction in the trial court which has been urged by appellants but ignored by the majority. Because this want of jurisdiction of subject matter is total, any action taken in the case by either the trial court or this court, except to dismiss it, is wholly void. Appellees sought to have the chief executive of the state and commissioners appointed by him enjoined from proceeding with a hearing under Amendment No. ■15 to our constitution for the removal of appellees as members of the Arkansas Game and Fish Commission. Kadi complaint showed on its face that the chancery court was without jurisdiction. This want of jurisdiction was recognized in the early case of Rhodes v. Driver, 69 Ark. 606, 65 S.W. 106, where this court quoted from High on Injunctions: “No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence, is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature, and cognizable only by courts of law. A court of equity will not permit itself to be made the forum of determining the disputed questions of title to public offices, or for the trial of contested elections, but will in all such cases leave the claimant of the office to pursue the statutory remedy, if there be such, or the common law remedy, by proceedings in the nature of a quo warranto,” High, Injunctions (3rd Ed.) No. 1312. See also Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230, Ann. Cas. 1915C 980; Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002; Sheffield v. Heslep, 206 Ark. 605, 177 S.W. 2d 412. Courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political and where no civil or property right is involved. They have no jurisdiction in matters of a political nature or to interfere with the duties of any other department of government. Walls v. Bnmdidge, supra. To assume such jurisdiction would be to invade the domain of other departments of government or of tribunals having jurisdiction. 42 Am. Jur. 2d 834, Injunctions § 86. Political rights have been clearly defined and distinguished in Walls v. Bundidge, supra, as follows: “* * * Political rights consist in the power to participate directly and indirectly in the establishment or management of the government. These political rights are fixed by the Constitution. Every citizen has the right to vote for public officers and of being elected. These are political rights which tlie humblest citizen possesses. Civil rights are those which have no relation to the establishment, support, or management of the government. They consist in the power of acquiring and enjoying property and exercising the paternal and marital powers and the like.” Proceedings pertaining to removal from public office are matters of a political nature and the right of the incumbent to remain in office is a political right. In this state the chancery court has no jurisdiction in cases pertaining to ouster of an incumbent from public office and none can he conferred by statute. Gladish v. Lovewell, 95 Ark. 618, 130 S.W. 579. This court said in that opinion: ‘ ‘ The reason for the rule is that such cases involve political rights with which equity has nothing to do.” This rule has general acceptance and is stated in 42 Am. Jur. 2d, Injunctions, § 86, page 835: “A court of equity, unless its jurisdiction has been enlarged by statute, has no general jurisdiction over the removal of public officers, and therefore it cannot enjoin an officer or board from removing an officer or from appointing a successor to him after removal.” See also 43 Am. Jur. 55, Public Officers, § 219. It has been applied by the Supreme Court of the Chited States many times. Walton v. House of Representatives, 265 U.S. 487, 44 S. Ct. 628, 68 L. Ed. 1115 (1924) (and cases cited therein). In the Walton case, the court said that the rule was not altered ¡even though the removal proceeding be in the nature of a criminal prosecution. It has also been applied in a petition to enjoin a governor from conducting a removal hearing under a sta tule strikingly similar to the constitutional provision involved. here. See Emerson v. Hughes, 117 Vt. 270, 90 A. 2d 910 34 A.L.R. 2d 539 (1952). The authorities were carefully reviewed in that case and overwhelming support for the rule was found. The statute 47 V.S. § 6131 read: “* * * ‘Removal. After notice and hearing the governor may remove a "member of the liquor control board for incompetency, failure to discharge his duties, malfeasance, immorality or other cause inimical to the general good of the stale. In case of such removal, he shall appoint a person to fill the unexpired term.’ ” The lack of jurisdiction is just as great even though an injunction is sought. Walls v. Brundidge, supra; Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002; Davis v. Wilson, 183 Ark. 271, 35 S.W. 2d 1020; Priest v. Mack, 194 Ark. 788, 109 S.W. 2d 665; Curry v. Dawson, 238 Ark. 310, 379 S.W. 2d 287. Thus the chancery court was devoid of judicial power in this matter to the extent that any decree rendered by it would be void. Raney v. Hinkle, 80 Ark. 617, 95 S.W. 993; Miller v. Tatum, supra; Robinson v. Morgan, 228 Ark. 1091, 312 S.W. 2d 329. See also 4 C.J.S. 163, Appeal and Error, § 42. I regret that the majority have seen fit to bypass this fundamental want of jurisdiction and have laid its action upon a jurisdictional limitation which is not so fundamental that the chancery court would be deprived of power to act. The existence of an adequate remedy at law is not ground for dismissing a complaint, even when objection to jurisdiction on that ground is raised by demurrer. Higginbotham v. Harper, 206 Ark. 210, 174 S.W. 2d 668. My regret is based not only upon my feeling that this court should be zealous in preventing and avoiding interference with other independent and coequal branches of government but upon the feeling that the court is using this vehicle to gratuitously render an advisory opinion upon procedures in this case. In so doing, the court is not only rendering' an opinion on questions not raised or briefed by the parties but is doing so by way of dictum as support for a judgment which itself is void for want of jurisdiction. Since there was a want of jurisdiction of the subject matter or a want of power in the trial court, the jurisdiction of this court, being* derivative, is no greater. Jurisdiction of an appellate court is derived from and depends upon that of the court of origin. Rucker v. Cox, 200 Ark. 247, 138 S.W. 2d 778; Markham v. Evans, 239 Ark. 1154, 397 S.W. 2d 365; Whitesides v. Kershaw, 44 Ark. 377; Wright v. Wooldridge, 94 Ark. 276, 126 S.W. 841. Where the court from which an appeal is taken has no jurisdiction, the appeal confers none. Gregory v. Williams, 24 Ark. 177; Dunnington v. Bailey, 27 Ark. 508; Smyrna Baptist Church v. Burbridge, 205 Ark. 108, 167 S.W. 2d 501; Carter Special School District v. Hollis Special School District, 173 Ark. 781, 293 S.W. 722; Harris v. Hare, 183 Ark. 259, 35 S.W. 2d 340; See 4 Am. Jur. 2d 539, Appeal and Error, § 9. This court has no jurisdiction where the trial court had none. Trapnall v. Jordan, 7 Ark. 430. Siuce an appellate court acquires only such jurisdiction as the court wherein the case originated had, it may render only such judgment as the trial court could or should have rendered. Pride v. State, 52 Ark. 502, 13 S.W. 135; Price v. Madison County Bank, 90 Ark. 195, 118 S.W. 706; Markham v. Evans, supra; Carter Special School District v. Hollis Special School District, supra; Baughman v. Overton, 183 Ark. 561, 37 S.W. 2d 81; Wright v. Wooldridge, 94 Ark. 276, 126 S.W. 841; Woolverton v. Freeman, 77 Ark. 234, 91 S.W. 190. See also 4 C.J.S. 159, Appeal and Error, § 41. This court has no jurisdiction to do anything except dismiss this case for want of jurisdiction. While I academically agree with the majority that appellees have a complete and adequate remedy by appeal as provided by Amendment 35, I do not agree, even academically, that the review is of the nature suggested in the majority opinion. The very language of the constitutional amendment contradicts the construction . of the majority opinion. It says that a commissioner may be removed “after a hearing which may be reviewed by the chancery court * * * with right of appeal therefrom to the supreme court, such review and appeal to be without presumption in favor of any finding by the governor or the trial court.” It is not the removal which is to be reviewed, it is the hearing. This cannot mean that a trial de novo such as is specifically provided by statute on appeals to circuit courts is indicated. See, e.g., Ark. Stat. Ann. § 26-1308 (Repl. 1962). On those appeals, there is no review, and the hearing in the inferior tribunal is not even considered. The statute provides that the circuit court shall hear, try and determine the cause on its merits. No such provision appears in Amendment 35. A review of a hearing, on the other hand, certainty should not involve any more than the type of review given here on appeals from chancery courts. I have been unable to find any instance where the “review” of any matter heard by any tribunal in Arkansas has been taken to encompass a complete new trial where evidence is heard anew and additional evidence accepted, unless a specific statute authorizes or requires this to be done. In matters pertaining to legal proceedings, the word “review” means a judicial reexamination, as of the proceedings of a lower tribunal of any kind by a higher ("Webster’s New International Dictionary, Second and Third Editions). This matter was treated by the Supreme Judicial Court of Massachusetts in Swan v. Justices of Superior Court, 222 Mass. 542, 111 N.E. 386, 389 (1916), wherein it was held that a review of removals of license commissioners of a city indicated simply a reexamination of proceedings already mad. The court said: “* * * ‘A review of the charges’ signifies in its broad sense an examination of the specifications of misconduct which constitute the cause or causes on which the hearing was had, to see if they are stated fairly, in a common sense way, though not necessarily with technical accuracy. A review of ‘the evidence submitted thereunder’ manifests a purpose that there shall be no new witnesses heard but simply that the evidence on which the mayor based his findings shall be re-examined. A review ‘of the findings’ imports an examination of the conclusions reached by the mayor both as to facts, law7, and the resultant decision.” The majority has grasped the words “trial court” as the basis of the opinion that a complete new- -trial should be had in the chancery court. The effect of this holding is to relegate the hearing before the chief of the executive branch relating to the removal of a member of that branch to the status of a preliminary hearing such as is conducted before magistrates in felony cases. It ■would vest the real power of removal in the judicial branch of the government rather than the executive branch. I humbly submit that this was not the intention of the people of Arkansas in the adoption of this amendment. It is obvious to me that the people intended that the power of removal in the governor be limited to the same causes as applied to other constitutional officers and that it be subject to review in order to prevent arbitrary or capricious action. It is also obvious to me that the people intended to avoid the cumbersome, expensive and generally unsatisfactory impeachment processes by the legislative branch. But it is also clear to me that it was never intended by anyone that the real power of removal be vested in the chancery court of the first district subject only to a trial de novo on appeal, as in other chancery cases. While I do not think the question was ever properly reach'd here, I felt compelled to express my present feel ings with regard to the proper construction of the constitutional amendment with reference to the subject of review. Viewed in a concrete factual situation, rather than in the abstract, with the question presented through advocacy, I might come to a different conclusion. I dare say that the same might be said as appropriately of my brethren of the majority. I would reverse and dismiss.

Holt, J. This action was commenced by the appel-lee against appellant in the Crawford circuit court on October 18,1937, to recover '$2,957.96 alleged damages on ten separate shipments of strawberries in carload lots. These cars were shipped' from Judsonia, Arkansas', to Pittsburg, Pennsylvania; Judsonia, Arkansas, to Buffalo, New York; McRae, Arkansas, to Cincinnati, Ohio; Bald Knob, Arkansas, to Denver, Colorado; Bald Knob, Arkansas, to Buffalo, New York; Judsonia, Arkansas, to Buffalo, New York; Russell, Arkansas, to Cleveland, Ohio; Judsonia, Arkansas, to Cleveland,'Ohio'; Exeter, Missouri, to Cleveland, Ohio; Ward, Arkansas, to Syracuse, New York. All of these shipments were made dur-^ ing May of 1936. Appellee recovered a verdict in the sum of $2,957.96,' the total sum sued for. The complaint contained ten separate causes joined in separate counts. The allegations in each count are identical except the date of shipment, car number, origin of shipment, destination, and amount of damage alleged. It will be necessary, therefore, to copy the material allegations in the first count of the complaint only, which are: That appellant “then and there received and accepted said strawberries for transportation and issued and delivered to the appellee its original express receipt contract, and for a valuable consideration thereinafter to be paid it agreed to carry and transport said strawberries under the provisions of said contract and its duty as a common carrier of freight and merchandise . . .” Copy of express receipt contract is hereto attached marked Exhibit “A” and made a part of this complaint. Appellee further alleges that the appellant violated its express receipt contract, and also its duty to the appel-lee as a common carrier by delivering the said strawberries at destination in a soft, wet, rotten and otherwise deteriorated condition, etc. Thereafter on April 4, 1938, appellant filed its demurrer and answer. The demurrer was overruled. Appellánt specifically denied each and every' material allegation in the complaint, and pleaded specially that by the terms of the shipping contract it was provided that, unless caused in whole or in part by its own negligence or that of its agents, appellant should not be liable for loss, damage or delay caused by the act or default of the shipper or owner, or the nature of the property, or the inherent vice therein, or improper or'insufficient packing, securing, or addressing, or the act of God; that if any loss, damage, or delay occurred in said shipments, or either of them, which appellant denied, it occurred while said cars and each of them were stopped and held in transit or after reaching destination upon request of the shipper or owner, or resulted from one of the excepted causes set forth in said shipping contract, and each of them; that appellant was not an insurer of the safe transportation of said perishable shipments respectively, and that it performed its full duty under the terms and provisions of said respective contracts of shipment. The evidence on these ten different shipments is so voluminous, the record containing some 2,500 pages, that it cannot he set out within the compass of this opinion; however, we have carefully considered it and shall set out that which we deem controlling as follows: The uniform express receipt contract referred to in-the complaint and introduced in evidence contains the following provisions: “Paragraph !. The provisions of this receipt shall inure to the benefit of and be binding upon the consignor, the consignee and all carriers handling this shipment and shall apply to any reconsignment, or return thereof . . . Paragraph 4. Unless in whole or in part by its own negligence, or that of its agents, the company shall not he liable for loss, damage or delay caused by: (a) The act or default of the shipper or owner, (b) The nature of the property, or .defect or inherent vice therein, (c) Improper or insufficient packing, securing, or addressing.” Paragraph 18 from Classification 24, Packing Requirements, provides: “All shipments must be so prepared or packed as to insure safe transportation with ordinary care on the part of the express company.” Section 28 of Classification 24, Refrigeration — Carload Shipments of Perishable Commodities, provided in substance that the express company has arranged for a limited number of refrigerator cars, and, to the extent available, these cars will be furnished on application of shippers; that cars will be handled only by trains designated 'by the railroad companies; that consignor is required to deliver to express agent written memorandum of load in car, commodity, weight, name of consignee, destination, and any such operation instructions as requesting ice bunkers to be left open, proportion of salt to ice when car re-iced, loading and unloading in transit, etc. That refrigeration being a separate and distinct service of transportation, and not included in express rate, cost of ice and salt must be assumed by owner in addition to charge for transporta ti on. The record further reflects that the express refrigerator cars used in nine of these shipments were first iced to bunker capacity, from 12,000 to 14,000 pounds of ice being placed in each car, by appellant in North Little Rock,- Arkansas, and they were then delivered at the points of origin of the shipments in either Judsonia, McRae, Bald Knob, Russell, Rogers or "Ward, Arkansas. In count IX the initial icing to bunker capacity of 13,900 pounds took place at Rogers, Arkansas, and the car then delivered to Exeter, Missouri, for loading by the shipper. Each one of these cars was re-iced to capacity at these shipping points, the cars thoroughly inspected, accepted by the agent, or agents, of the shipper and in each instance was loaded by and under the supervision of ap-pellee, the shipper. When the berries were loaded into each of these cars for shipment they appeared to be in good condition. At the time each of these cars started from the original shipping point their final destination was unknown. In most instances the consignee was the shipper, appellee. These shipments either went first to ,St. Louis, Missouri, to what is known as the Eastern Grateway, or to Kansas 'City, Missouri, the Western Gateway, where diversion orders were given by the shipper. Delays in the movement of nine of these shipments of from three to ninety hours were caused solely by the shipper in giving diversion orders to appellant of the various cars. In one of the shipments, wherein a delay of approximately thirty hours occurred, six hours of this delay, the evidence shows, was the fault of appellant in changing car wheels in St. Louis. The record further reflects that a sufficient number of icing stations was provided by appellant along the line of each shipment, and that all of these cars were re-iced to bunker capacity at each of these stations, that the temperature inside these cars, for the safe transportation of the berries might range from 49 degrees at the top do 42 degrees at the bottom of each car, and that this temperature was maintained in each one of these shipments. The coihmodity temperature at destination of car in Count I was 44 over 43% (meaning 44 degrees at the top and 43% degrees at the bottom); in Count II 47 over 42; in 'Count III 45 over 41 at Cincinnati and 42 over 40 at Louisville; in Count IY 48 over 44 at Kansas City and 45. over 41 at Denver; in Count Y by consignees 46 over 42; in Count YI on joint inspection 47 over 40, but by appellant’s employee 44 over 40; in Count YII 46 over 43 and by consignee two days after arrival 44 over 40; in Count VIII 42 over 38; in Count IX, 43 over 40, and by consignee’s inspection 42 over 38; in Count X by appellant’s agent on arrival 42 over 38 and twelve hours after arrival by a R.P.I.A. inspector 49 over 41. The record further discloses that consignees were promptly notified of arrival of the cars at destinations by appellant, and that unloading began promptly; that at destination the berries in the car in Count I showed disease of 3 to 10 per cent, gray mold; in Count II a tan rot average 8 per cent.;.in Count III 0 to 4 per cent, gray .mold at Louisville and 3 to 10 per cent, overripe at Cincinnati ;• in Count IY less than 1 per cent, decay at Kansas City; at Denver one crate out of 32, 30 per cent, gray mold, other good, and 3 to- 20 per cent, pale, sandy, bird-pecked; in-Count V evidence shows the berries were not good quality and 1 to 2 per cent, leather rot, 4% per cent, botrytis; in Count VI average 2.7 per cent, tan rot, 15 per cent, white shoulders or average 3 per cent, defects; in Count VII most crates 1 to 3 per cent, leather rot in all stages; in Count VIII 4 to 6 per cent, leather rot, early stages, gray mold, botrytis, poor quality; in Count IX 1 to 3 per cent, leather rot, average 8 per cent, ripe and soft; in Count X 1 per cent, cottony botrytis, 2 to 3 per cent, bruised, and IQ to 15 per cent, surface bruised by dividers. There is evidence that the diseased condition of the berries at their destination was due to their inherent weakness, field disease, and was present in the berries, though not observable when they were gathered from the fields; that these diseases would develop under the temperatures in which the berries were shipped and the only way to prevent such development would be to freeze the berries." A Mr. Cole, a resident of Van Burén, Arkansas, who has had twenty odd years experience in buying and shipping' strawberries, testified. that, in his opinion, berries in question in each of these shipments could not have been carried safely above a temperature of 43 degrees, that they would break down at a temperature of 45 degrees. He hád no personal'knowledge of any of these shipments, was not present when they were leaded, knew nothing about the cars in which they were «h^'ped, and did not claim to possess scientific knowledge, his evidence being based on his experience. ■ The refrigerator cars used were of approved type and construction. Appellee’s witness, Robinson, kept a record of his inspections at the loadin'? points, upon which he relied. These were introduced in evidence as exhibits, and each one stated “if car equipment is defective in anyway (examine close) notify railway of damage in writing.” None of his reports show a defect of any kind in the cars or equipment. The cars were inspected at each re-icing station, and the berries appeared to be in good condition at these points. Diversion orders were promptly effected by appellant when received in every instance except in one instance of a s.ix-hour delay in St. Louis for change of car wheels. In every instance, the ice in each car was found to 'be in good order and sufficient in quantity upon- arrival at destination, and the temperature inside the cars adequate. On this state of the record, at the out-set, appellant earnestly insists that appellee, in each of the ten counts in its complaint, has elected to base any right to recover damages on contract {ex contractu) and not in tort {ex delicto) and, therefore, since each action was based on contract, appellant was exempted from liability due to the specified causes set forth in paragraph 4 of the express receipt contract, supra, and, therefore, the burden rested on appellee to show affirmatively that any loss or damage was either not caused by any act within the exceptions in paragraph 4, or that it was caused by appellant’s negligence in fact. We are of the opinion that the appellant is correct in this contention. While it is true that appellee had the choice of bringing his action on contract or in tort, he must make an election, and in determining this we must gather his intention from the four corners of his complaint, or from a construction of the allegations set out therein. In the instant case it seems to be clear that ap-pellee based his suit on contract. The trial court adopted this' view as evidenced by certain instructions which it gave. Instruction 13 contained this provision: “. . . the plaintiff has based its right to recover for each of said shipments upon the alleged violation by defendant of an express contract of shipment covering each car of berries. The right of plaintiff to recover herein is governed by the respective shipping contracts.” And in instruction 15, the court said in substance that it was not sufficient for appellee to prove merely that the berries were delivered to appellant in good condition and delivered by it in damaged condition “but the burden rests upon plaintiff to prove that the defendant is liable according to the terms and provisions of said shipping contracts ...” In 1 C. J. iS., § 49, p. 1118, the rule is stated as follows : “If the complaint shows that it is based upon the contract of shipment, the action is in contract, provided, it has sometimes been stated, the allegations in regard to the agreement include an averment of consideration, and its character as such is not changed' or affected by the fact that there are also allegations of negligence; but if it appears that the complaint is based upon the breach of legal duty as distinguished from the contractual duty, the action is in tort, even though the complaint sets forth the contract of shipment, which is ordinarily treated as matter of inducement or explanation.” In a. comparatively recent case, that of Southern Pacific R. Co. v. Gonzales, 48 Ariz. 260, 61 Pac. 2d 377, 106 A. L. R. 1012, the principles which we think control here are set forth in a somewhat exhaustive opinion, which reviews the authorities from early times. In this ease the court held that the action to recover damages to a shipment of tomatoes was based on contract, although negligence was alleged and in its opinion said: “Plaintiff contends that his action sounds in contract and not in tort . . . Under the common law, the obligation of a common carrier was long supposed to rest entirely upon a public duty imposed by law as a matter of public policy, which was an obligation to carry safely without excuse or exception, save for such losses as might be occasioned by the act of God or the public enemy. The idea of contract or the obligations, resulting from it were never associated with the question of a carrier’s responsibility. Actions for a. violation of this obligation were, therefore, necessarily ex delicto and not ex contractu. “About 1750, however, in the case of Dale v. Hall, 1 Wils. 281, there was an innovation upon this doctrine, the court holding, in substance, that there was a contract, express or implied, which created the relation of shipper and carrier, and that a shipper could sue either upon his contract in assumpsit,. or on the case for the breach of a public duty. Hutchinson on Carr., 3d ed., vol. 3, 1569, et seq.; Angelí on Carr., par. 422; Spence v. Norfolk & Western R. Co., 92 Va. 102, 22 S. E. 815, 29 L. R. A. 578. Prom that time on, actions were based sometimes on one and sometimes on the other theory. There are still, however, well-recognized differences existing between an action ex contractu, and that of ex delicto, which are important in determining whether the one or the other should be brought . . . It is frequently, however, very difficult to determine to which class a complaint belongs. In such cases of doubt, the general rule for this, as well as other actions where the question becomes important, is set forth by us in Anderson v. Thude, 42 Ariz. 271, 25 P. 2d 272, as follows: ‘It is the rule that if the complaint may be construed either as one in tort or one on contract, it will be presumed to be the latter. Consolidated Flour Mills Co. v. Muegge, 127 Okla. 295, 260 P. 745; Nathan v. Locke, 108 Cal. App. 158, 287 P. 550, 291 P.286’ . . . “Plaintiff apparently liad some doubts himself as to which form of action should be brought, for his complaint, in paragraph 5, very carefully alleges an agreement, upon consideration, to ‘safely, securely, expeditiously and with due care’ carry the tomatoes to their destination, which clearly sets up a contractual obligation. On the other hand, in paragraph 7, he claims that the .defendants ‘negligently caused the bunkers in the car into which the said tomatoes' were loaded to be filled with ice, ’ etc. . . . Nor did plaintiff see fit to set forth either all or part of the contract on which he claims to rely in haeo verba. The only contract which appears in the evidence is the bill of lading issued by the Mexican company, under the terms of which the American company accepted the Canadian car for transportation.” See, also, Am. Ex. Co. v. Lankford, 1 Ind. T. 233, 39 S. W. 817. In the instant case appellee alleged and proved the shipping contract entered into and thereby committed itself to an action on contract. 'Since the action was based on contract it exempted appellant, from liability due -to the specified causes set forth'in paragraph 4, supra. The burden rested on appellee to show affirmatively that the loss resulted from a cause for which appellant was responsible. In 9 Am. Jur., § 835-, p. 942, the author says: “It has also -been held that where the complaint itself discloses that the shipment was carried under a special contract which exempts the carrier from liability for loss due to specified causes, the burden rests upon the plaintiff to show affirmatively that the loss resulted from a cause for which the carrier is responsible.” It was, therefore, not sufficient merely to show that these berries, in each of these shipments, were delivered to appellant at the point of origin in good condition and delivered at destination in a damaged condition. That would only prove common law liability which was not alleged and was not sufficient under the shipping contracts. We hold that appellee has failed to discharge the burden imposed upon it by substantial testi mony and, therefore, is not entitled to recover on any of ten shipments involved in this case. To entitle appellee to recover it was required to prove liability as set forth in, or reasonably implied by the terms of the contract and subject to all exemptions stated therein. On the evidence before us in this record as relating to all of these ten shipments, even if we test appellee’s right to recover, on appellant’s common law liability, which only requires appellee to show that, it delivered the berries to appellant in a good' condition-, and that they were delivered at destination points in a damaged condition, in order to establish a prima facie case of negligence against appellant, still we hold that appellant has successfully overcome this prima facie case made by ap-pellee, and that the evidence falls far short of being of that substantial nature required by the decisions of this court to afford a recovery. In the instant case, appellant undertook to transport for appellee strawberries, a perishable commodity, and the rule is well settled that, in so doing, appellant was not an insurer, but was required to use ordinary care in the transporting and in its handling of the berries and in the furnishing of refrigerator cars for that purpose. In 13 C. J. S., § 79, p. 152, it is stated: “With respect to perishable goods which themselves contain the elements of destruction governing their loss or deterioration, the carrier is not an insurer, and is no more liable for destruction or injury resulting solely from the inherent infirmity in the goods than for loss entailed solely by an act of G-od or of the public enemy, or by the carelessness of the shipper . . . The measure of the carrier’s duty is to exercise reasonable care and diligence to protect the goods from loss or injury while in its custody, taking into consideration the character of the commodity, ths. condition of the weather, and the time necessary to complete the transportation, and it is generally said that the carrier is liable for only such deterioration as is attributable to its negligence.” The same principle is declared in 4 R. C. L., § 375, p. 919: ‘ ‘ The methods of handling and transporting fruit are well understood, and carriers accept freight for transportation with the understanding and expectation that they will observe proper care, as that is understood by the shipper and carrier of such articles. Carriers are not insurers in such cases; hut each one is charged with the duty of exercising ordinary care to protect fruit from injury while it is in its charge, and this duty requires the carrier to use such care in order, to prevent the fruit from decaying, as well as from being damaged by other means.” The shipper assumed the responsibility of loading, and did load, each of. these shipments at points of origin. In 9 Am. Jur., § 725, at page 866, it is said: “When a shipper assumes the responsibility of loading a car and seeing that it is properly prepared for the transportation of the particular article which he is loading, the -general rule seems to be that he assumes responsibility for all defects in package and loading which are necessarily invisible to the agent of the carrier who accepts the freight or which he cannot discern by ordinary observation or such inspection as he can readily make.” See, also, So. Pac. Co. v. Itule (Ariz.), 74 Pac. 2d, 38, 115 A. L. R. 1268, wherein the court said: “We think the fairer and more logical rule is that in cases of the shipment of perishable fruits and vegetables, when the carrier shows affirmatively that it handled them in the method requested by the shipper, and that it exercised reasonable care to prevent any damage from any cause not necessarily involved in the method of transportation so chose, that it has satisfied the requirements of the law in regard to the quantum of proof required to establish a defense to the action.” We think appellant performed the duty required of it in transporting each one of these shipments' and that there is no substantial evidence in this record to the contrary. In Ry. Ex. Co. v. H. Rouw Co., 185 Ark. 526, 48 S. W. 2d 220, the court held: “A carrier which holds itself out as proposing to provide means of preserving perishable goods must exercise ordinary care in adopting means of transportation and furnishing such equipment.” In Ry. Ex. Co. v. H. Rouw Co., 184 Ark. 482, 42 S. W. 2d 261, this court held (quoting syllabus): “The duty of a carrier transporting strawberries is to exercise ordinary care to ice and re-ice the car properly. . . . The duty of a carrier transporting strawberries is to exercise ordinary care merely in furnishing shipping facilities.” Therefore, testing the liability of appellant,on each of these shipments for loss, by negligence as at common law, we think that each of the ten counts in the instant case is ruled by the recent ease of Ry. Ex. Agency v. S. L. Robinson & Co., 184 Ark. 660, 43 S. W. 2d 543, wherein the plaintiff was allowed to amend his complaint and rely solely for negligence upon the liability of the carrier as at common law. The evidence in that case showed that the berries were received in good condition and delivered at destination in a poor condition. This court in that ease said: “'Counsel for appellees claim that they amended their complaint and relied solely on liability for loss by negligence of the carrier as at common law. Inasmuch as we have reached the conclusion that the carrier has overcome the prima facie case made by the shipper, we shall treat the complaint as amended as contended for by ap-pellees. . . . “The carrier did not content itself with introducing witnesses as to the general condition of the shipment of strawberries while in its hands, but introduced all persons employed by it who had part in the different transactions during transit. We do not mean that all the operatives of the train were introduced as witnesses, but we do mean that the carrier followed the shipment step by step from the place of shipment to the place of delivery. It was shown by competent evidence that a refrigerator car of the most approved type was furnished the shipper within which to carry the berries. The condition of the car and its material, both as to its equipment and construction, were detailed by the witnesses. It was shown that the carrier had a sufficient number of stations along the route for re-icing the car and that the car was properly inspected and well iced at all these stations. The evidence shows that the car of strawberries was in good condition at all these points. The car was diverted by the shipper from Kansas City, Missouri, to Chicago, Illinois. As soon as it arrived at its destination, the consignee was notified. An examination of the berries Avas’ made when they arrived at their destination, and they Avore found to be full ripe and watery. None of the crates Avere broken or damaged. One inspector testified that the berries contained brown rot which is a disease of berries knoAvn as botrytis. This exists from water-soaked berries, causing a dry and leathery rot. Botrytis in these berries originated from the berries getting Avater-soaked, forming a dry leathery rot. This resulted from the inherent nature and infirmities of the berries. Another inspector testified that brown rot, called botrytis, is an inherent field disease. The condition existed when the berries Avere loaded, although it might not then be visible. . . . “The testimony of the witnesses for the appellant Avas reasonable and consistent in itself, and Ave think entirely overcame the presumption of negligence in favor of the shipper caused by proof that the berries Avere received in good condition at the point of shipment, and were in a decayed condition at the time of reaching their destination. . . . It is true that A. II. Welch, a witness for the shipper, testified that the berries Avere bruised Avhen inspected by him at the place of destination in Chicago. lie said that he did not know, however, what caused this; but the explanation given by the Avitnesses for the carrier explains it. On account of their diseased condition they became soft and watery, and this, in the very nature of things, would cause them to become bruised. ’ ’ Just as in the Robinson Case, supra, appellant in each of the shipments iii the instant case followed them step by step from points of origin to their destination and avc think there is no substantial evidence in this record showing that appellant failed to exercise that degree of care required of it in its handling of each one of these shipments. On. the AAdiole case, we'conclude, therefore, that the trial court erred, at the conclusion of the introduction of all tlie evidence in the case, in its refusal to instruct-a verdict for the appellant, and since each one of these ten cases seems to have been fully developed, the judgment's rendered in each is reversed and each cause of action dismissed.

James H. Pilkinton, Judge. This appeal is from an order of the Chancery court overruling a motion to dismiss a petition against an out-of-state defendant for lack of personal jurisdiction, and questioning the validity of certain modifications made thereafter in a divorce decree. On December 31,1977, a decree of divorce was entered in favor of appellee ágaiñst appellant based on constructive service. The appellant was a resident of Texas at that time. There were two children of the marriage. The son was in the custody of the father-appellee, and the daughter was in the custody of the mother-appellant. Each was found to be a proper person to retain such custody, and the father was ordered to pay child support for the minor daughter in the sum of $150 per month, plus usual medical expenses. On April 7, 1978, the father filed a petition to modify the original divorce decree seeking definite periods of visitation with his daughter. The mother responded by filing an answer pro se. She also asked for affirmative relief and sought to have the original decree modified to increase the amount of monthly support for the daughter. On May 17, 1978, a hearing was held on the respective pleadings then before the court and, with both parties present, an order was entered fixing the visitation rights of the father, and increasing the child support to $170 per month. On January 26, 1979, appellee filed what he called “An Amended Petition to Modify Decree of Divorce’ ’, and had a summons issued for appellant directed to the Sheriff of Harris County, Texas. This summons was served on February 7, 1979 and return filed. On January 26, 1979, a second summons was issued to William Lee Fergus, attorney at law, Osceola, Arkansas, (counsel for appellee) directing him to summon appellant to.answer within 20 days. This document is not dated, and was not signed by the clerk. However, the record shows that counsel for appellee wrote a letter, dated January 24, 1979, addressed to appellant at her address in Houston, Texas, and sent it to her by certified mail, return receipt requested. This letter contained a copy of the amended petition. On February 23, 1979, appellant filed a special'appearance, and moved the Chancery Court to set aside and quash the two purported summonses. Appellee filed a response to this pleading; and, on February 26, 1979, without notice to appellant or her counsel, the Honorable Henry Wilson, Chancellor, issued an order denying the motion to quash, and allowing appellant to file a response within ten days. On March 8, 1979, appellant filed a response to appellee’s petition to modify, denying the continuing jurisdiction of the court over her person and seeking dismissal of the petition to modify for want of jurisdiction. On March 13, 1979, the Chancery court with Honorable Howard Temple-ton, Chancellor, presiding, declined to rule further on the jurisdictional question. It was the view of the court that the prior order, made by Judge Wilson on February 26 and filed February 28, settled that issue. Judge Templeton ruled that such order gave his court jurisdiction over both the cause of action and of the parties. The Chancery court on March 13, 1979, modified the decree further, as requested by appellee. Appellant has appealed from the order dated March 13,1979 which was signed by the judge on May 25, 1979, but not entered until June 7, 1979. For reversal, appellant has asserted four points which she contends require a reversal of the trial court’s order of March 13, 1979. I. Appellant first says the Chancery court erred in finding that the court had jurisdiction of her person, although admitting that the Mississippi Chancery Court had jurisdiction of the subject matter. Appellant overlooks the fact that she had entered her appearance in this case generally on April 20, 1978, when she filed an answer to appellee’s first petition to modify the decree, and asked for affirmative relief. She was also present in person, and by counsel, at the first hearing to modify, held on May 17, 1978, and she received an increase in support for the daughter from $150 to $170 per month. She submitted herself to the jurisdiction of the Mississippi County Chancery Court at that time as to the matters pertaining to visitation of the daughter and of the daughter’s proper support. The court has continuing jurisdiction in these matters; and, at any later time, on proper motion and due notice to the other parent, may make such order as the circumstances require. II. Appellant argues that a new or original personal service or process on her was required. We find no merit in this argument under the circumstances here. Where modification is considered a continuation of an original matter before the court, the issuance of a new or original process, or new personal service, is not required. 27B C.J.S. Divorce § 317 (4). However, proper notice of the application for modification, and an opportunity to be heard should be given whether or not required by statute. Seaton v. Seaton, 221 Ark. 778, 255 S.W. 2d 954 (1953); Schley v. Dodge, Chancellor, 206 Ark. 1151, at 1154, 178 S.W. 2d 851 (1944). It is conceded by appellant that she did receive actual notice of the filing of the petition that is in question. She received notice in several ways, one of which was by being mailed a copy of the amended petition by certified mail, return receipt requested, as required by Ark. Stat. Ann. § 27-362(b) (Repl. 1979). Appellant claims that section of the statute did not apply. She would be correct if appellant had not previously entered her appearance in this case, and if an original personal service or summons had been required. However, as already noted, only notice was necessary. The argument of appellant fails to take into consideration the difference between the service required in an original action, and notice required in a matter where the court already has personal jurisdiction of the parties. III. Appellant also complains that on February 26, 1979, the Chancery Court, without notice to appellant, issued an order denying the motion to quash, and allowed appellant ten days in which to file a response. Appellant did not file any motion or pleading on her part seeking to have this particular order vacated, but instead filed an answer or response. The error, if any, was harmless under the circumstances. Appellant made her argument at the March 13,. 1979, hearing and it was rejected by the trial court. IV. As her fourth point, appellant claims the court erred in refusing to rule further concerning personal jurisdiction over the defendant. As stated above, she renewed her objection to the jurisdiction of the court at the March 13,1979 hearing. However, the import of her argument was that new or personal service of process on her was required. The Chancellor was correct in rejecting this argument. Appellant has argued on appeal that the court was wrong in its reasoning that the personal jurisdiction question was not still before the court at the time of the hearing on March 13, 1979. Be that as it may, and regardless of the reason given for its action, the opinion of the court was correct. Appellant had previously entered her appearance, and the court had continuing jurisdiction to deal with the matters of child custody and visitation under the circumstances. As a side matter appellant complains of repeated efforts of appellee for modification of the original decree. She claims this places an undue burden on her to resist his various petitions. It is true that repeated efforts for modification of a decree are looked on with disfavor by the courts; and there should be an end to the constant changes and modifications of orders having to do with the custody or visitation of a child. Saltonstall v. Saltonstall, 148 Cal. App. 2d 109, 306 P. 2d 492 (1957). However, this is a matter which n\ust be first dealt with on the trial court level. It is not properly before us in this appeal. Finding no error, the order of the Chancery Court is affirmed.

Frank Holt, Justice. Appellant, as administratrix of the estate of her deceased husband, filed this tort action on behalf of their two minor children. The action was brought after the expiration of the three year statute of limitations contained in the Arkansas Wrongful Death Act, Ark. Stat. Ann. § 27-907 (Repl. 1962). The trial court sustained appellee’s demurrer on the ground that the action was barred by the statute of limitations. The only issue presented by this appeal is whether or not the general savings clause in Ark. Stat. Ann. § 37-226 (Repl. 1962) tolls the statute of limitations in § 27-907, which provides: Every such action [wrongful death] shall be brought by and in the name of the personal representatives of such deceased person, and if no personal representative, then same shall be brought by the heirs at law of such deceased person. Every action authorized by this act [§§ 27- 906 & 27-910] shall be commenced within three [3] years after the death of the person, alleged to have been wrongfully killed and not thereafter. § 37-226 reads: If any person entitled to bring any action, under any law of this state, be, at the time of the accrual of the cause of action, under twenty-one [21] years of age, or insane or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three [3] years next after full age, or such disability may be removed. Appellant contends that the three year statute of limitations in § 29-907 is tolled when the plaintiffs, as here, are minors and that the cause of action does not accrue during their minority. The general rule is that a provision in a wrongful death statute which requires an action to be brought within a specified time is more than “an ordinary statute of limitations and goes to the existence of the right itself.” 25A C.J.S Death § 53b. In Anthony v. St. Louis I.M. & S. Ry. Co., 108 Ark. 219, 157 S.W. 394 (1913), we held that the “bringing of the suit within [three] years ... is made an essential element of the right to sue.” We cited with approval Earnest v. St. Louis Memphis and Southeastern Railway, 87 Ark. 65, 112 S.W. 141 (1908), which held that the time fixed by the statute becomes a limitation or condition on the right of action and will control. In Anthony, we specifically held that a general savings clause statute, as here, did not apply to suits brought under the wrongful death statute which statute accords a right of action that did not exist at common law. The Anthony rule has been consistently cited with approval and controlling in numerous decisions. Hicks v. Missouri Pacific Railroad Company, 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed 285 F. 2d 427; Missouri Pacific Railroad Co. v. Armstrong, 184 Ark. 1076, 44 S.W. 2d 1093 (1932); Smith v. Missouri Pacific Railroad Co., 175 Ark. 626, 1 S.W. 2d 48 (1927). We hold it is controlling here. Appellant also argues that since the general savings clause in § 37-226 has been applied to actions for medical malpractice, Ark. Stat. Ann. § 37-205 (Repl. 1962), it should be applied to the wrongful death statute because the two statutes are similar since neither statute contains a savings clause and each contains a statute of limitations. It is true that in Graham v. Sisco, 248 Ark. 6, 449 S.W. 2d 949 (1970), we held that the savings clause statute, § 37-226, tolled the two year statute of limitations, § 37-205, in malpractice actions. There is, however, a distinction between the two statutes. As appellee correctly observes, actions for malpractice are not statutory in origin. These statutes merely fix “the time in which action must be taken to enforce liability which they recognize as already existing.” Partin v. Wade, 172 F. 2d 50 (8th Cir.1949). However, it is well established in Arkansas that a right of action for wrongful death is of statutory origin only since no such cause of action existed at common law. Smith v. Missouri Pacific Railroad Co., supra. The limitation of time fixed by a wrongful death statute is a limitation on the right of action and is an essential element of the right to sue. Therefore, since the general savings clause provision of § 37-226 has no application to wrongful death actions, the court correctly sustained the demurrer. Affirmed. We agree: Harris, C.J., and Fogleman and Purtle, JJ.

Cabbeton Harris, Chief Justice. On April 28, 1966, appellee, Hattie Iiagan, was a passenger in an automobile operated by her sister, Lona Dennington, and being driven north on Highway 4, approaching the intersection at Cedar Street in downtown McGehec. Jerry Peacock was driving an automobile south on Highway 4 toward Cedar Street. The automobile driven by Mrs. Dennington slowed, and made a left turn into Cedar Street, and was struck by the Peacock vehicle at this intersection. Mrs. Dennington held a policy of liability insurance issued by appellant, United States Fidelity and Guaranty Company, which contained an uninsured motorist endorsement, and under its provisions, appellee Hagan was insured up to $10,000.00. This policy was in full force and effect at the time of the accident. Mrs. Hagan instituted suit against the company, alleging that she was painfully injured in the accident due to the negligence of Jerry Peacock, and that Peacock was operating an “uninsured automobile” as that term was defined in the policy. Judgment against appellant was sought in the amount of $9,500.00 ($500.00 having been previously paid under the medical coverage provision of the policy). On motion of appellant, Peacock was made a party defendant. Subsequently, Peacock answered, denying all material allegations of the complaint, and the company filed its separate answer denying that Peacock was legally obligated to Mrs. Hagan, though admitting that appellee had coverage under the uninsured motorist provision in the policy. On trial, the jury returned a verdict in favor of Peacock and the United States Fidelity and Guaranty Company, denying any recovery whatsoever to Mrs. Hagan. Thereafter, appellee filed a motion for a new trial, and the court granted this motion, finding “that the verdict of the jury is contrary to the preponderance of the evidence in this case, and should be set aside.” From the judgment granting the new trial, both the company and Pea cock bring this appeal. For reversal, it is first asserted that the jury verdict was reasonable, and the action of the. trial court in granting a new trial on the ground that the verdict was contrary to a preponderance of the evidence, was an abuse of discretion by the court. It is then contended that there was a failure of proof that Peacock was an uninsured motorist. The company argues that the verdict, rendered by the jury was in line with the evidence, and that, there being a conflict, in the testimony as to negligence, the jury properly passed upon this question; that a court is not authorized to set aside a verdict as being against the weight of the evidence, unless it clearly appears that the jury finding is not only contrary to the. evidence, but so palpably wrong as to shock the sense of justice. Tn support of this argument, two cases are cited, Vandever v. Wilson, 5 Ark. 407, and Singer Manufacturing Company v. Rogers (1902), 70 Ark. 385, 67 S.W. 75. The first case, decided in 1843, deals with usury, and this court upheld the Circuit Court in refusing to grant a new trial. The second case concerns a contract between the Singer Company and one of its employees. Here again, the case does not deal with the propriety of the court’s setting aside a verdict; rather, this court held that the Cir-suit Court shoukl hare sustained the motion for new trial, stating that the judgment against the company was clearly and palpably wrong. We have pointed out in several recent cases that the only issue that arises on our review of the trial court’s action in setting aside a verdict, is whether the trial judge abused his discretion. Worth James Construction Company v. Fulk, 241 Ark. 444, 409 S.W. 2d 320; Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898, and cases cited therein. We reiterate that we will not disturb the trial court’s finding (that the verdict was against ihe weight of the evidence), unless it is evident that the court abused its discretion. Hi some instances, we have held that the trial court, abused its discretion in setting aside a jury verdict, the most recent holding being found in Ellsworth Brothers v. Mayes, Admr., handed down March 24, 1969, where we found that the trial court clearly abused its discretion in granting a new trial. But we find no abuse of discretion in the case before us. It was stipulated by the parties that the speed limit at the intersection where the accident occurred was 30 miles per hour. The locale of the collision was in downtown McG-ehee during the noon hour. One eye witness testified that his attention was attracted to the Peacock ear when he heard Peacock spin the wheels about a block away from the scene of the accident. He said that the vehicle passed him at a speed of approximately 50 miles per hour. The wife of this witness testified that the Peacock car “was doing fifty or probably sixty.” There was evidence by a passenger in the Peacock automobile that she observed the Pennington automobile a half block away, as it entered the intersection. It would appear that Peacock had at least 150 feet of space in which to bring his car under control. Of course, it was the theory of appellant that Mrs. Pennington proceeded into the intersection when she did not have time to get across, and was thus negligent. Let it be remembered, however, that this litigation does not involve the degree of negligence between Peacock and Mrs. Pennington. Rather, the suit was instituted by Mrs. Hagan, a passenger in the Pennington automobile. There, was no contention by appellant that the two sisters were engaged in a joint venture, and the only evidence of possible negligence on Mrs. Hagan’s part is that she failed to warn of the approach of the Peacock car, which she said she saw approximately a block away as Mrs. Pennington turned into the intersection. This failure to warn could not have been a proximate cause of her injuries, since Mrs. Pennington testified that she too saw the automobile, about the same distance away, as she made the turn into the intersection. Be that as it may, we certainly cannot say that this evidence was so cogent that the trial judge, in setting aside the verdict, abused his discretion. Nor can we agree that there was a failure of proof that Peacock was uninsured for the reason that it appears that tilia matter was covered by stipulation in chambers. While various matters were being stipulated, counsel for Peacock stated: “While we are stipulating I would like to stipulate that the policy of insurance of USF&G was in full force and effect on the date of the accident and that Jerry Peacock was an uninsured motorist.” Though counsel for United States Fidelity and Guaranty was present, he made no comment, and it is now argued that this was only an offered stipulation, and that there was no response or agreement from counsel for the company. There are several reasons why this argument lacks merit. In the first place, it appears that appellant had already entered into a binding stipulation with regard to this fact. Prior to the quoted statement, counsel for the company had said: “ * 95 * U.S.F.&G. declares, affirms and is willing to stipulate that it will pay all sums that the plaintiff shall be found to be legally entitled to recover as damages from the defendant, Jerry Peacock because of bodily injuries sustained by the plaintiff caused by the accident of April 28th, 1966, up to the sum of $9,500.00 which represents the limits of the policy of insurance.” Counsel for Peacock did not want the name of the insurance company mentioned in the presence of the jury, as he considered that this might be prejudicial to his client. In discussing the matter, counsel for the company again stated : “Judge, my stipulation and declaration goes to the fact that we agree that we are going to pay what sums that Mrs. Hagan is found to be entitled to recover as damages from Peacock, that therefore there is no issue of fact here as far as IT.S.F.&G. is concerned in this case.” In a few moments, this position was repeated: “We are stating that whatever damages the jury finds that Mrs. Hagan is entitled to recover against Peacock we are going to pay it and we will authorize and declare that a judgment can be entered for that amount against U.S.F.&G.” Again, appellant’s counsel stated: “Judge, what you have got, you have got a suit in tort and a suit in contract. The suit in tort is going to decide the issues of the suit in contract.” The court disagreed with the argument, and referred all issues to the jury. It would certainly appear that counsel for appellee was justified in assuming that there was no necessity to offer proof that Peacock was an uninsured driver. Also, the trial judge gave the following instructions: “You are instructed that the plaintiff, Hattie Hagan, can recover from the defendant, United States Fidelity and Guaranty Company, only if she recovers from the defendant, Jerry Peacock. “If your verdict is for the plaintiff and against the defendant, Jerry Peacock, you will assess plaintiff’s recovery in the amount you find from a preponderance of the evidence will reasonably and fairly compensate her for the damages sustained in accordance with these instructions. In such case you will also return a verdict against the defendant, United States Fidelity and Guaranty Company, for the amount of her damages, not to exceed, however, the policy limits of $9,500.00. “In other words, any verdict against defendant, Jerry Peacock, will be for the full amount of the damages, if any, sustained by plaintiff, Hattie Hag-an, but any verdict against defendant, United States Fidelitv and Guaranty Company cannot exceed $9,-500.00.” Though an objection was made to the instruction by counsel for appellant on other grounds. there was no complaint that the instruction was erroneous because of a lack of evidence that Peacock was an uninsured driver. Affirmed. No brief has been filed in this court by Peacock. United States Fidelity and Guaranty Company offered an amendment to the instruction as follows: “* * * jf your verdict is for the defendant Jerry Peacock then in that event you must return a verdict for the defendant United States Fidelity & Guaranty Company; and the court overurled the defendants’ objections, and the defendants at the time asked that their exceptions be saved and duly noted of record, which is hereby accordingly done.”

Mehaeey, J. This is a suit by the State of Arkansas to collect back taxes alleged to be due from, the appellee, Midland Valley Eailroad Company. Complaint was filed in the chancery court of Sebastian county on July 29, 1935. On August 17, 1935, the appellee filed.a demurrer to the complaint which was by the court overruled on May 8, 1936. On June 10, 1936, answer was filed and on June 20,1936, the appellant filed amendment to complaint, and also filed a supplemental complaint with interrogatories. The corporation commission had authorized the bringing of the suit and the appellee filed petition before the corporation commission requesting that it recall the order to sue, which the commission declined to do. The appellant took the deposition of Mr. C. J. Inger-soll. Mr. Ingersoll testified that he is chairman of the board of directors of the Midland Valley Eailroad Company, with which he has been connected since 1920, first as assistant to the president for 12 years, and since that time as chairman of the board. The deposition of Mr. Ingersoll was taken at Philadelphia by agreement on interrogatories. He testified in substance that the Midland Valley Eailroad Company was incorporated June 4, 1903, in the state of Arkansas, and attached to his deposition a copy of the charter and articles of incorporation. He gave the names and addresses of the officers and directors of the railroad company during each year from 1930 to 1936, inclusive, with the number of shares and classes of stock controlled by each; that the corporate and financial records and books of account are kept in the custody of officers of appellee at its offices in Muskogee, Oklahoma, and Philadelphia, Pennsylvania; that the president and vice-president have free access to the financial files, records and books of account. The company’s seal is kept by the secretary in his office in Philadelphia. The chief accounting officer is Mr. E. B. Harper. Witness has full directing control, management and supervision of the transportation operations and financial affairs of the appellee. Witness then gives a statement of prop erty, assets, in the form of moneys and credits consisting of $1,124,901 cash in bank subject to check; that this money was held and used by, the railroad company in the operation of its lines as a common carrier and this sum constituted the working fund growing out of the operation of the company as a common carrier; that on January 1, 1931, there existed at various places outside the state of 'Arkansas what is classified by the Interstate Commerce Commission as cash and loans and deposits in the sum of $671,183; that all this constituted working funds growing out of and held and used by the company in the operation of its lines as a common carrier and meeting its obligations growing out of its utility operations. The testimony as to the other years was substantially the same as he said that the sole business of the appellee was common carrier by rail, and that this business was in full activity then and now absorbing all the resources of the company. The appellee makes annual written reports to the Interstate Commerce Commission and to the Arkansas Corporation Commission; the reports in question do not purport to give value and do not do so; the reports are true and correct to the best of witness ’ knowledge and belief. The reports to the Interstate Commerce Commission and to the Arkansas Corporation Commission do not purport and do not differentiate between what is alleged in the question as being earned from transportation operations, on the one hand, and derived from non-carrier properties or activities on the other. All of the income of the company is applicable to and used in its sole activity, that of operating a public utility. Witness then gives a list of stocks of other corporations held by it and also the number of bonds, and their value. The returns from the bonds have been commingled with the company’s revenue and used by it in paying expenses of its utility operations, and but for such returns in the last few years the railroad would not have been able to pay its fixed charges; witness testifies at length about its relationship with the Muskog-ee company, in what capacity it has been connected with said company, and what amount of the total, common and preferred stock of the company is owned by the Musko gee company in the years 1930 to 1936, inclusive; that these matters are reported to the Arkansas Corporation Commission each year and the figures here are the same as in the report made to the commission. Witness testified that the report to the Arkansas Corporation Commission showed the items with reference to its current, as distinguished from its deferred liability, and gave the figures; also showed its capital and surplus. Witness also testified at length and in detail about the outstanding preferred stock, the preferences to which the holders of said stock are entitled, a tabular statement of the amount and rate of dividends declared and paid on its preferred stock each year from 1930 to 1936, inclusive, and also the same with reference to the common stock; that the first mortgage of the Midland Valley Railroad Company to Girard Trust Company, trustee, is $15,000,-000, and mortgaged to the Fidelity Company in the sum of $5,512,500. ' i w; %jí¡¡.. This is the only evidence introduced by the state, and it shows that the indebtedness is in excess of the value of the property it owns. There were other pleadings filed later, but on March 7, 3938, the cause was submitted to the chancellor and time given both parties to file briefs. After the submission and after the briefs had been filed the appellant, on June 14, 1938, filed motion for an order authorizing resumption of the taking of testimony, examination of defendant’s officials, and for the production of books and papers, and the appellee filed motion to strike and to dismiss ; whereupon the court entered the following decree: “On this day the- above cause coming' on to be heard comes the plaintiff by George W. Vaughan, attorney, and also comes the defendant by its attorneys, and the cause being submitted to the court upon the complaint and exhibits thereto; the answer of the defendant; the deposition of C. Jared Ingersoll and the exhibits attached thereto; and on the motion of the defendant to strike from the files plaintiff’s reply to the second amended answer the supplemental complaint, and the motion for an order authorizing resumption of taking of testimony, examination of witnesses and for the production of books and papers, and the court being well and sufficiently advised in the premises, and this cause haying been submitted to the court on March-7,1938, and the court having-taken the same under advisement, after allowing time to both parties in which to file briefs, and after said briefs were filed, the plaintiff then filed its reply to the second amended answer, the supplemental complaint and the motion for an order authorizing resumption of taking of testimony, examination of witnesses and for the production of books and papers; and said pleadings on behalf of the plaintiff were not filed until June 14, 1938, which was after all briefs were filed, and defendant then filed its motion to strike said pleadings from the file, and the court is of the opinion that said motion to strike filed on behalf of the defendant should be sustained, and is of the further opinion that the plaintiff’s complaint should he dismissed for want of equity. “It is, therefore, considered, ordered, and decreed hv the court that said motion to strike be and the same is hereby sustained, and thereupon the court, having considered the deposition of C. Jared Ingersoll, which was all the evidence introduced in the cause, and after hearing the arguments of counsel and having considered the briefs on file, it is ordered,, adjudged and decreed that the complaint of the plaintiff be, and the same is hereby dismissed for want of equity, and it is further ordered that the defendant have and recover of and from the plaintiff all of its costs herein expended, to all of which the plaintiff excepted.” The case is here on appeal. The complaint stated a cause of action and the de-demurrer was, therefore, properly overruled by the court. The pleadings of the appellee were not verified, but this was a mere formal matter and if motion had been made the court would doubtless have required a verification of the pleadings. This court said in the case of Coleman v. Bercher, 94 Ark. 345, 126 S. W. 1070: “The omission of the plaintiff or her attorney to sign the complaint, and the omission of Hiner in the affidavit attached thereto to state that he was plaintiff’s attorney, were mere formal defects or clerical' mistakes which could not affect the .rights; of the parties in a trial on the merits of the case; and the motion to correct the same, having been seasonably made, should have been allowed by the court as a correction of mistake, under § 6245 of Kirby’s Digest, and thus have cured the defect. “To illustrate, our Civil Code provides that a complaint must contain the style of the court, but the court has held that the omission to do so is a mere formal error. McLeran v. Morgan, 27 Ark. 148. ’ ’ This court said in another case: “The answer upon which the motion was based does not appear to have been verified. That would not have been regarded as sufficient to have justified striking it from the files, or to have prevented a consideration of its contents, unless there had been a refusal to verify after order made to' do so.” Jackson v. Reeve, 44 Ark. 496. Appellant complains because it says the appellee failed to answer interrogatories, but this matter does not seem to have been called to the attention of the court, and the parties themselves were endeavoring to reach an agreement as to the facts. The appellant filed a motion to require the attendance of witnesses and the production of books. If this motion had been made in time, the state would have been entitled to an order of the court to produce books alleged to contain evidence pertinent to the matter in controversy. Section 5152, Pope’s Digest. 'But this motion was not made in time. The decree recites that it was after the case had been submitted and briefs had been filed by both sides. The appellant asked in its motion not only for the production of books and the examination of appellee’s officials, but for an order authorizing the resumption.of the taking of testimony. This motion was made on June 14, 1938, nearly three years after the complaint was filed and after the case had been submitted and both parties had filed briefs. The granting or refusing to grant this motion was within the discretion of the trial judge. Of course his discretion must not be abused, and when abused is subject to review by the appellate court. “The judge is not to be restricted to the function of a mere umpire or referee in a contest between opposing parties or counsel, but is charged by law and conscience with the fundamental duty of seeing that truth is established and justice done, under the statutes and rules of law designed to bring about such result, and his control of tlie situation should be manifest and complete at all times.” 64 O. J. 66. ‘ ‘ The trial judge must always have a very large discretion in controlling and managing the routine proceedings at the trial, and it is not necessary to specify the' matters to which such discretion extends. It applies beyond doubt to the addresses of counsel as well as to other incidents. But it must be a reasonable, a legal, discretion, and whether it be so or not must depend upon the nature of the proceeding on which it is exercised, the way it is exercised, and the special circumstances under which it is exercised. It can never be intended that a trial judge has purposely gone astray in dealing with matters within the category of discretionary proceedings, and, unless it turns out that he has not merely mis-stepped, but has departed widely and injuriously, an appellate court will not re-examine. It will not do it when there is no better reason than its own opinion that the course actually taken was not as wise or sensible or orderly as another would have been.” Coca-Cola Bottling Company of Ark. v. Jordan, 186 Ark. 1006, 54 S. W. 2d 403. At the trial the appellant introduced the deposition of Mr. Ingersoll and rested. The case was submitted to the court, and three months after that time the motion was filed. The court did not abuse its discretion in refusing to re-open the case and permit the taking of more testimony. The evidence of Ingersoll is not disputed and it shows that all of thé property mentioned by the state as subject to taxation is used in the utility operation of the company. Section 2051 of Pope’s Digest provides that all property, real and personal, not used in the utility operation of the company as such, shall be listed and assessed by the assessor. Whether any of the prop erty mentioned, by the state was not used in the utility operation of the company was a question to be determined from the evidence, and the only evidence in the case shows that the property mentioned was used in the utility operation of the company. The decree of the chancery court is not against the preponderance of the evidence, and it is, therefore, affirmed.

David Newbern, Judge. The appellant was convicted of theft of an automobile of a value in excess of $2500 and sentenced to 20 years confinement and afine of $15,000. His appeal raises the question whether evidence of previous offenses should have been admitted and whether the prosecutor’s closing remarks were so calculated to inflame the jury as to be a ground for mistrial. We affirm the conviction. Billy Reno, a co-defendant who decided to plead guilty apparently shortly before the trial, testified that he and the appellant had been working together stealing cars. He said-on the day the offense charged was committed he and the appellant drove to Benton and to a used car lot there with the intent to steal a car. While the appellant distracted the salesman, Reno took the keys to a Cadillac from the top of the hood of the car and replaced them with other keys. That night, after the business had closed for the day, the appellant brought Reno back to. the lot where he started the car and began driving it away. In the meantime, the substitution of the keys had been noticed by the employees and owner of the car lot, and a policeman was waiting in the car lot office after closing time. As Reno attempted to drive the car from the lot, he was shot by the policeman and arrested. In corroboration of Reno’s testimony, the appellee played for a jury the recording of a telephone conversation between the appellant and Passmore, a police informant. In the conversation the appellant complained of the “stake out” where his buddy had about been “blown away.” He referred to having gotten a truck to which he was afraid to return, to having “gotten” two other cars, to arranging for fake drivers’ licenses and bills of lading for vehicles, and to setting up an alibi for some event, apparently the one charged here, by saying he was at Memphis or West Memphis. The appellant objected to both the testimony of Reno and the tape on the basis that they contained evidence of other offenses committed by the appellant. With respect to the tape recording, the appellee alleges the appellant could have had access to it before the trial, presumably by a discovery motion pursuant to Ark. R. Crim. P. 17.1 (a) (ii), and that his failure to move to suppress the tape before the trial in accordance with Rule 16.2 waived any objection. Whether this recorded statement falls within the purview of Rule 16.2 is a question the answer to which we will save for another day. We have at least some doubt whether a rule which is phrased in terms of suppression of things “seized” applies to a statement obtained in the manner described. To answer in the affirmative we would be required to find it fits the definition of “seizure” in Rule 10.1 (b) as “. . . the obtaining of information by an officer . . . under . . . color of authority.” We need not reach all the questions such a determination would require, as both the recorded statement of the appellant and Reno’s testimony raise the same issue. Reno’s testimony would not be left uncorroborated by exclusion of the tape recording, as the owner of the car lot testified that the appellant had been.on the lot the day in question, that the green and white truck he and Reno had been driving earlier was seen driving past the lot shortly before Reno attemted to take the car, and the appellant was seen driving the truck past the lot an hour after the event. In addition, the appellant admitted having been on the lot with Reno earlier in the day. The corroboration of an accomplice’s testimony required by our statute, Ark. Stat. Ann. § .43-2116 (Repl. 1977), is only that which tends in “some degree” to connect the accused with the crime. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978); Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943). Unlike Pollard v. State, 264 Ark. 753, 574 S.W. 2d 656 (1978), we have here evidence other than the testimony of an accomplice directly connecting the appellant to the offense, i.e., the testimony of a car lot employee that the appellant had diverted his attention from the car to be stolen while Reno exchanged the keys. The employee testified the appellant asked to look at a truck on the other side of the lot from the place where the Cadillac was parked. He was not, however, sufficiently distracted to miss seeing Reno remove the keys which had been atop the hood of the Cadillac and then walk behind the truck the appellant and Reno had been driving and then return to the Cadillac and place on it a set of keys which turned out to be different ones. It was this act of picking up and putting down keys that aroused the car lot personnel to suspect the appellant and Reno. Thus, we come to the question whether the evidence tending to show other offenses was admissible. The applicable evidence rule is Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979), which provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be. admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. This is one of the rules of evidence which is most difficult to apply. It codifies the rule which was in existence before it was adopted, and it has been the subject of numerous decisions in the Arkansas Supreme Court and other appellate courts. Although much similar language is found in the cases, the decisions seem to have been pretty much ad hoc. As long as the purpose of the rule is kept in mind, however, ad hoc application of it may be in order. The most helpful of the Arkansas decisions is Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), in which Justice George Rose Smith discussed the rule and identified the problem in its application as being whether one of the “so-called” exceptions, in that case, evidence of another crime tending to prove “intent,” was present. This suggests a fairly mechanical approach to the rule which apparently was not the intent of its .modern version drafters. Our rule is drawn from the federal rule, and a discussion of the intent of the drafters is found in The Federal Rules of Evidence: A Symposium, 71 Nw. U.L.R. 634 (1976). In that article, the authors suggest two possible approaches to the “other offenses” problem. One would emphasize admissibility by viewing the words “such as” in the rule as indicating the list following to be exemplary only. The other would admit the evidence only if it fell strictly within one of the categories. In our view, the rule should be interpreted to exclude evidence of other offenses when its only purpose is to show the accused’s character or some.general propensity he might have to commit the particular sort of crime in question. It should not be interpeted to exclude evidence of other offenses when that evidence is probative of the accused’s participation in the particular crime charged. If it is probative of his participation the only remaining question should be whether it is so prejudicial that it should be excluded because the prejudice brought about by exposition of other offenses is not sufficiently balanced by the probative value of the evidence on the facts sought to be proved. See, Rule 403. Although Rule 403 was not specifically in issue at the trial and has not been cited by the appellant here, we think it must be included in the ultimate determination of admissibility. This is the approach applied in U.S. v. Dansker, 537 F. 2d 40 (3rd Cir. 1976), and suggested in the article cited above. A good example of the approach is the decision in U.S. v. Coppola, 526 F. 2d 764 (10th Cir. 1975). The court said: As to the evidence that the government offered, it is to be noted that inasmuch as Molina was admittedly the actual killer, it was relevant to introduce evidence of Coppola’s heroin traffic so as to demonstrate his motive for and connection with the murder. After all, the gov ernment was seeking to show that Coppola was trying to maintain his position as the principal narcotics distributor at Leavenworth. Herman’s testimony supported this, and so the government’s evidence in this area had probative value and was thus properly admitted. [Citations.] From a careful examination of the record, we are convinced that the government organized and presented its evidence in an effort to validly utilize this evidence and not to exploit it as a means in and of itself to convict the defendant. [526 F. 2d at 772] Note that the court used one of the terms from the “exceptions” part of the rule, that is, “motive,” but did not limit itself to that, as it added, “and connection with” the offense. The balancing came at the end of the quotation where the court assured itself the evidence was not being used “as a means in and of itself to convict the defendant.” In this case, the evidence of other offenses showed a strong connection between the appellant and Reno. The appellant took the stand to deny any intent to participate in the theft. He said he had gone to the lot with Reno to act as co-signer on a note in the event Reno found a car he wanted to buy. We believe the question of his intent with respect to some of his conduct was raised in this case by him, and the evidence had a “true relation to the issue of intent” and thus it would be admissible under the standard stated by Justice Smith in the Alford case, 223 Ark. at 338. In conclusion on this point, we apply the standard of the Alford case with an elaboration, somewhat as stated by the Eighth Circuit Court of Appeals in U.S. v. Conley, 523 F. 2d 650 (8th Cir. 1975), cert. den., 424 U.S. 920(1976). First, an issue must be raised as to which the “other offenses” evidence relates. Second, the proffered evidence must be clear and convincing, and third, the probative value of the evidence must outweigh its unwarranted prejudicial effect. In this case we find the evidence related to the intent or motive of the appellant — an issue his denial and explanation clearly raised. The “other offenses” evidence was very clear and convincing that he and Reno were conducting a car stealing operation, and tended to refute the appellant’s explanation of his conduct. The probative value of the evidence thus was strong, and it outweighed any possibly undue prejudice to the appellant. The other point raised by the appellant was the failure of the trial court to grant a mistrial when the prosecutor, in describing the acts of the appellant, made what he called an analogy to a “dope trafficker” who used others to commit offenses for his benefit. This reference was made in a way which left no doubt the prosecutor was not describing the appellant as a “dope trafficker,” and no mistrial was warranted. We see nothing inflammatory in the remark. Affirmed.

John A. Fogleman, Justice. This appeal is the result of proceedings held by appellant Arkansas Real Estate Commission concerning complaints lodged against appellees Kathleen Harrison and Dixie Harrison, hereinafter referred to simply as Kathleen and Dixie. After a hearing on December 13, 1976, appellant entered an order dated December 29, 1976, suspending Kathleen’s real estate broker’s license for a period of ninety days, effective January 15, 1977. The order stated that Kathleen had failed, within a reasonable time, to remit moneys belonging to others which had come into her possession and that she had failed to clearly and accurately reduce an agreement concerning commission fees to writing, as required by appellant’s Rule 40. She was found to have violated the provisions of Ark. Stat. Ann. § 71-1307 (g), (h) and (j) (Repl. 1957). Pursuant to Ark. Stat. Ann. § 5-713 (Repl. 1976), Kathleen filed a petition for review of appellant’s order in the Circuit Court of Pulaski County on January 13, 1977, and on that same date the circuit court entered an order staying the order issued by appellant, until a review of the record of the proceedings could be had. This was circuit court case number 77-184. Another hearing was held by appellant on January 24, 1977, on a charge that both appellees had allowed an unlicensed person to assist them in the procurement of a real estate listing contract, with the knowledge that said person was not licensed as either a real estate broker or salesman. Both were found to have violated Ark. Stat. Ann. § 71-1307 (h) and (j) and Kathleen’s broker’s license was suspended for a period of ninety days, effective February 15, 1977, while Dixie’s real estate salesman’s license was suspended for a period of sixty days, commencing on February 11, 1977. Both filed a petition for review in the Pulaski County Circuit Court, which issued an order on February 14, 1977, staying the order of appellant, pending review. This case was circuit court case number 77-749. On August 30, 1978, the circuit judge declared that none of the actions of either of the appellees constituted a violation of Ark. Stat. Ann. § 71-1307 (g), (h) or (j) and he entered an order which reversed the orders of appellant, declaring those orders to be null and void. This appeal followed. Although appellant raises two points for reversal, both are based on the same contention, i.e., there was substantial evidence to support the findings and actions of appellant, and consequently, we will discuss them as if they were the same. The statutory provisions which Kathleen was found to have violated are a portion of a statute empowering the Arkansas Real Estate Commission to revoke or suspend the real estate license of any person found to have committed certain acts. The portions pertinent to this appeal are: * * * (g) Failing, within a reasonable time, to account for or to remit any moneys coming to his possession which belong to others, or * * * (h) Being unworthy or incompetent to act as a real estate broker or salesman in such manner as to safeguard the interests of the public, or * * * (j) Any other conduct whether of the same or a different character from that hereinbefore specified which constitutes improper, fraudulent or dishonest dealing. The complaint filed against Kathleen Harrison alleged that she had wrongfully retained a 82,000.00 earnest money deposit given to her in. connection with an offer and acceptance signed by John Noordhoek, who wished to purchase property owned by Tom Keathley and listed for sale with Kathleen’s agency. The offer and acceptance contained a clause which stated that it was “subject to satisfactory financing.” Noordhoek testified at the hearing that he had attempted to obtain financing, his loan applications were rejected by the FHA and by the Federal Land Bank, and when he showed Kathleen a letter from the Federal Land Bank, rejecting his application, she accused him of turning down the loan and threatened to sue him. He said he obtained a job at Ward’s Body Works to improve his chances of approval upon a second application to the Federal Land Bank, but quit after his application was again rejected. According to Noordhoek, after failing in three attempts to obtain financing on the property, he asked Kathleen to return his earnest money deposit and “she told me to go to hell.” He stated that at the time of the hearing, his deposit had not been returned to him. Kenneth Fudge, the local manager of the Federal Land Bank, stated that he had recommended Noordhoek’s second loan application be approved because of Noordhoek’s employment, but that Fudge’s supervisor rejected the application, not because of employment or lack of employment, but rather because he did not think that the income projections for the dairy farm Noordhoek proposed to operate on the property were sufficient. Kathleen testified that she did not return the earnest money because she felt that Noordhoek had not made “sufficient effort to get a loan” and was therefore in breach of the contractual offer and acceptance, that she understood Noordhoek’s lack of employment was the reason the loan had not been approved and that she thought he was backing out to buy a farm from the man he was renting a house from. Noordhoek had stated earlier that he had attempted to buy another farm later, but was forced to abandon his efforts due to his financial difficulties. Upon review of the actions of an administrative board or agency, the circuit court’s review of the evidence is limited to a determination of whether there was substantial evidence to support the action taken, and upon appeal to this court, our review of the evidence is similarly limited. Ark. Stat. Ann. § 5-713; White County Guaranty Savings and Loan Ass’n. v. Farmers and Merchants Bank of Des Arc, 262 Ark. 893, 562 S.W. 2d 582; Arkadelphia Federal Savings and Loan v. Mid-South Savings and Loan, 265 Ark. 860, 581 S.W. 2d 345 (1979). When we view the evidence in this case in the light most favorable to the findings of appellant, we cannot say that there is no substantial evidence to support the action of appellant in suspending Kathleen’s real estate broker’s license for a period of ninety days and we therefore reverse the judgment of the Circuit Court of Pulaski County. Appellant’s Rule 40 was not introduced at the hearing and is not abstracted in appellant’s brief, although a portion of the rule is quoted in the argument portion of appellant’s brief. Because we find that there was substantial evidence to support appellant’s finding regarding Kathleen’s failure to remit the earnest money deposit, and because the text of Rule 40 does not appear in the record before us, we need not discuss appellant’s argument relating to Kathleen’s alleged failure to comply with the requirements of the rule. As to the finding of appellant that both appellees had violated § 71-1307 (h) and (j) by allowing an unlicensed person to assit in the procurement of a real estate listing contract, we agree with the circuit court that it was not supported by any substantial evidence. Carroll McGee testified at the hearing held on January 24, 1977, that he had seen a newspaper advertisement, placed by Jaine B. Sage, which offered the Sage house for sale. He stated that he called Sage, suggested that she list her house with the Harrison Real Estate Agency and that he and Dixie, his fiance, went to the Sage home where Sage signed a listing contract with Dixie. He stated that he did not tell Sage that he was a real estate salesman or broker, nor that he was associated with or employed by the Harrison Agency. He stated that he asked for no compensation from Dixie and that none was offered or paid. We do not find it necessary to detail any additional testimony from this hearing because there was no showing that any actions of appellees in this transaction were violations of either subsection (h) or (j) of Ark. Stat. Ann. § 71-1307. Appellant points to Ark. Stat. Ann. § 71-1302 (Supp. 1977), which defines a real estate broker and real estate salesman and lists numerous actions and activities which are considered to be within the realm of real estate transactions, requiring a license. However, a complete reading of the statute reveals that all of these activities must be performed for compensation or with the expectation of compensation to be considered activities of a real estate broker or salesman. The undisputed evidence reveals that McGee neither received nor expected compensation for his actions, from either the seller or the broker, or for that matter, the salesman. So far as the record discloses, McGee was promoting the business of his fiance without compensation. Appellant has not referred us to, nor have we been able to find, any authority, statutory or otherwise, which would prohibit the actions of McGee and appellees, unless the element of compensation for McGee’s services was present. In light of such a complete lack of substantial evidence, we affirm the action of the circuit court. The judgment of the circuit court in case number 77-749 is affirmed. The judgment of the circuit court in case number 77-184 is reversed and the cause is remanded to the Circuit Court of Pulaski County with directions to remand it to Arkansas Real Estate Commission to enter an order consistent with this opinion. We agree. Harris, C.J., George Rose Smith and Holt, JJ-

J. Fred Jones, Justice. This appeal is from a judgment of the White County Circuit Court awarding medical benefits and denying death benefits under a liability insurance policy issued by the appellant, Southern Farm Bureau Casualty Insurance Company, to Rosebud School District No. 35. The case was submitted to the trial court upon stipulation of facts, and was tried before the judge sitting as a jury. Southern Farm has appealed from that portion of the judgment awarding medical benefits, and the claimant for death benefits has cross-appealed from that portion of the judgment denying her claim. The appellant has designated one point it relies on for reversal, as follows: “An automobile used in lieu of an insured vehicle at a time when an insured vehicle is available for use is not a substitute automobile.” The cross-appellant has designated one point, as follows: “The trial court erred in holding the policy did not cover the owner and driver of the substituted automobile, Forrest F. Noggle, as an insured.” The entire case concerns the interpretation of the coverage provisions of an insurance contract and the facts are not in dispute. On July 1, 1984, Southern Farm issued its standard form automobile liability insurance policy to Rosebud School District No. 35, Rosebud, Arkansas, covering ten separately designated school busses belonging to the district. The contract was evidenced by printed form together with an additional endorsement or rider. The printed form portion of the contract was designed for individually owned vehicles with limited family, guest and authorized user coverage. The policy was made applicable to the school district by an attached ‘ ‘ School Bus Endorsement,” and the difficulty arises in the printed form provisions of the policy rather than the endorsement. The contract provided for the payment of limited medical and death benefits under certain conditions, the pertinent provisions of the policy being as follows: “MEDICAL PAYMENTS — COVERAGE C To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical and dental services, including prosethetic devices, and necessary ambulance, hospital, professional nursing and funeral services to or for: DIVISION 1 (a) the named insured and, while residents of the same household, his spouse, and any relative of either, who sustains bodily injury, caused by accident, while in or upon, entering or alighting from, or through being struck by any automobile. (b) in the event of death of the first individual named as insured by automobile accident, di rectly and independently of any other cause, while in or upon, entering or alighting from, or through being struck by any automobile, the sum of $5,000 less any payments otherwise made hereunder on account of injury. DIVISION 2 (a) any other person who sustains bodily injury, caused by accident while in or upon, entering or alighting from the automobile while being used by or with the permission of the named insured or spouse. VIII. TEMPORARY USE OF SUBSTITUTED AUTOMOBILES While the described automobile is withdrawn from use, such insurance as is afforded by this policy applies to another automobile not owned by the named insured or spouse while temporarily used as the substitute for such automobile. This insuring agreement does not cover as an insured the owner of the substitute automobile or any employee of such owner.” The School Bus Endorsement provides, inter alia, as follows: . “1. PURPOSES OF USE ARE: (1) Transportation for school children, students (except adult students), teachers, school officials, board members, nurses, and doctors to and from school, games and outings in connection with school activities. (2) Occasional use for transporting special groups, such as 4-H Club, Future Farmers, Scouts, and Farm Bureau groups, parents or guardians of school children, or organized groups, except when used as a public or livery conveyance. (3) Family, personal, business and pleasure use.” The declarations attached to the policy with the School Bus Endorsement provide: “C. MEDICAL PAYMENTS 1. a $2,000 each person 1. b $5,000 2. $2,000 each person.” On February 27, 1965, while the policy was in force, Forrest Noggle, a teacher, coach and employee of the Rosebud School District, was using his personally owned automobile for transporting Rosebud School basketball players to and from a basketball tournament which was an officially approved athletic event of the insured. Any one of the school buses designated in the insurance policy was available for the trip, but with the permission of the school officials and at district expense, Mr. Noggle used and drove his own vehicle in lieu of a school bus listed under the policy endorsement. Lanny Noggle and Darlene Noggle were both students of the Rosebud School and were participants in the basketball tournament. They were passengers in the Noggle automobile and were returning from the tournament when the Noggle vehicle was involved in a collision which injured Lanny and Darlene Noggle and took the life of Forrest Noggle. The original suit forming the basis for this appeal, was brought against the appellant by Francis Noggle, as the surviving spouse of Forrest Noggle for death benefits, and as the mother and next friend of Lanny Noggle for medical benefits. L. H. Noggle joined in the suit as father and next friend of Darlene Noggle for medical benefits. The complaint alleged that the personally owned vehicle of Forrest Noggle was a substitute automobile within the coverage of the policy of insurance issued by the appellant to the Rosebud School District and that appellees were entitled to recover under the medical pay and death benefit provisions of the policy. It is from this allegation that the difficulty arises. The amounts sued for are within the policy limits and there seems to be no contention that if one of the insured’s school buses had been involved, instead of the privately owned automobile, there would have been no question as to coverage. The point relied upon by the appellant presents the specific question of whether the personally owned vehicle being driven by Forrest Noggle at the time of the accident, was a temporary substitute vehicle within the meaning of the insurance policy. The exact language of the policy provision, as related to this specific question, appears in paragraph VIII of the policy, restated here with emphasis for distinction, as follows: “While the described automobile is withdrawn from u,se, such insurance as is afforded by this policy applies to another automobile not owned by the named insured or spouse while temporarily used as the substitute for such automobile. This insuring agreement does not cover as an insured the owner of the substitute automobile or any employee of such owner.” The above provision attaches no conditions at all as to why the insured vehicle must be withdrawn from use in order for the insurance to attach to a substituted vehicle. It is also noted that while this provision makes such insurance as is afforded by the policy (which includes medical benefits) applicable to a substitute automobile, it clearly eliminates the death benefits as to the owner of the substitute automobile. Our decision in Webb v. State Farm Mut. Ins. Co., 241 Ark. 363, 407 S.W. 2d 740, is of no assistance to the cross-appellant in the case at bar because the coverage on the substitute automobile in the Webb case applied when the described automobile was withdrawn from normal use because of specifically enrunerated reasons. That is not the situation in the case at bar. In the Webb case the policy provided: “Temporary substitute automobile — -means an automobile . . . temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, serving, loss or destruction.” (Emphasis supplied.) And this court in commenting on the language of the policy in the Webb case, said: “The quoted section of the policy provides a specifically limited coverage as to a non-owned temporary substitute automobile when the automobile described in the policy is withdrawn from normal use by the insured because of its breakdown, repair, servicing, loss or destruction. This language is clear and emphatic.” The language of the policy provision in the case at bar does not provide such a “specifically limited coverage,” which is so “clear and emphatic.” The language of the policy provision in the case before us simply provides that such substitution may be effective “while the described automobile is withdrawn from use.” If the appellant insurance company had intended to limit the conditions under which the insured vehicles were to be withdrawn from use before the insurance coverage would attach to substituted vehicles, it would have been a simple matter to have included such limitations in the contract it prepared. The substitution of the automobile for a bus in this case could well have been prompted by the fact that the small number of passengers attending the basketball tournament could be transported more economically in the automobile than in a school bus. But for whatever reason the substitution may have been made, the provision providing for the withdrawal and substitution is unlimited by purpose otherwise defined. In Washington Fire & Marine Ins. Co. v. Ryburn, 228 Ark. 930, 311 S.W. 2d 302, this court said: "It is a settled rule in this state (and appears to be the general rule elsewhere) that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer, who wrote the insurance contract, and any doubt as to the meaning of language us.ed, should be resolved in favor of the insured.” See also Webb v. State Farm Mut. Ins. Co., supra. As to the point designated on the cross-appeal, we are of the opinion that the clear language of the policy provision, as emphasized supra, so clearly eliminates the owner of the substitute automobile as an assured under the contract, we would accomplish nothing in the way of additional clarity by adding more words to this opinion. We conclude that the trial court was correct in the interpretation placed on the provisions of the insurance contract and that the judgment should be affirmed botl on appeal and cross-appeal. Affirmed. Fogleman, J., disqualified and not participating.

Mehaeey, J. This action was commenced by appellant who filed in the circuit court the following complaint: “Comes the plaintiff and for cause of action herein states: That on March 29, 1926, defendant performed an operation on plaintiff for gall stones and for hernia, in the city of Little Bock, Arkansas, at St. Vincent’s Infirmary. That seven or eight weeks after said operation plaintiff began suffering pains in the region of the gall bladder, which suffering continued almost constantly from then until the date of plaintiff’s re-operation on March 26,1936. That in .September, 1935, plaintiff suffered a physical and nervous breakdown due to constant suffering, ill health and worry over her physical condition. Plaintiff was in such a weakened condition that re-operation at the time of her collapse was not advisable. After six months of nursing and confinement to bed the second operation was performed on plaintiff in the gall bladder region to discover the cause of plaintiff’s suffering. This operation was performed at St. Edwards’ Infirmary in-the city of Fort Smith, Arkansas, on March 26, 1936; That upon entering the region of the gall bladder, where the gall bladder should have been, there was encountered an enlarged abscessed mass about the size of a small orange. The mass was covered by omentum, and the walls of same were definite, distinct ¡and movable. In the process of removing this mass an old .puss-soaked gauze sponge exuded from a rupture therein. This mass developed to be the- gall bladder of plaintiff in a swollen, abscessed and decayed condition. That said gauze sponge had been left in the gall bladder' or the cavity enclosing-same by the defendant at the time he operated on or dressed plaintiff’s wound March 29, 1926. The existence of the foreign matter in the wound of the gauze spongé caused the abscess and decay of the gall bladder, the processes of nature covering the affected party by omen-tum preserving said sponge until its discovery in 1936. “That the leaving of-said gauze sponge in the gall bladder or the gall bladder area by the defendant was due to the careless and negligent conduct of said operation by the defendant or those under his direction. That as a result of such negligence and carelessness aforesaid plaintiff endured almost constant pain from 1926 to 1936. That since the removal of the abscessed mass from plaintiff at the time of the second operation plaintiff has been relieved of the pain suffered in the gall bladder region and has in some measure regained a semblance of health, 'but the impaired condition of her entire system due to the absorption of pus over the long period of years, had permanently injured her health. Arthritis has developed in both arms and shoulders and will continue, to exist during the rest of her natural life. Plaintiff is without strength with which to perform her normal household duties and is forced to, and has been since the beginning of her last trouble in 1926, employing household help. “That during the period of illness caused by defendant’s negligence in 1926 until and including the operation in March,-1936, plaintiff has expended large sums of money in doctors, hospital, nursing and medical bills. That by reason of the physical pain and suffering, including the-second operation, mental anguish and financial expenses caused plaintiff in the past and the pain, suffering and general ill health which she will suffer for the rest of her life by reason of the carelessness and negligence of the defendant as hereinbefore alleged, plaintiff has been damaged in the sum of forty thousand ($40,000) dollars. “Wherefore, plaintiff prays judgment against the defendant in the sum of forty thousand ($40,000) dollars, together with all costs herein expended.” The appellee filed the following demurrer: “The defendant, with permission of the court, withdraws its answer heretofore filed in this case and demurs to the complaint of plaintiff, because same shows upon its face that it is barred by the statute of limitations.” The court sustained the- demurrer, and appellant refused to plead further, and the complaint was dismissed. The court, in sustaining the demurrer, held that the cause of action was barred by act 135' of the Acts of 1935, which reads as follows: “An Act to Provide a Definite 'Statute of Limitations Relative to All Actions of Contract or Tort Arising Out of Malpractice of Physicians, Surgeons, Dentists, Hospitals and Sanitaria. “Be It Enacted by the General Assembly of the State of Arkansas. “Section 1. Hereafter all actions of contract or tort for malpractice, error, mistake, or failure to treat or cure, against physicians, surgeons, dentists, hospitals, and sanitaria, shall be commenced within three years after the cause of action accrues. The time of.the accrual of the cause of action shall be date of the wrongful act complained of and no other time. “Section 2. All laws or parts of laws in conflict herewith are hereby repealed and this.act shall take ef: feet and be in force from and after its passage.” The appellant contends that the legislature intended) the act to mean that the law existing at the time of the passage of the statute to the effect that a person wronged has three years from the time of discovery of the wrong in which to bring his suit was being changed to read that from henceforth or “thereafter” the action must be brought within three years from the time of the commission of the wrongful act regardless of the time of the discovery. It is contended that the appellant would have three years from the date of the passage to bring suit, and she cites and relies on the case of Baldwin v. Cross, 5 Ark. 510. The court stated in that case that prior to the passage of the act which the court then construed, there was no statute in force in.the territorial government as to limitations upon foreign judgments, and that all demands existing when the act went into operation must be sued for within the time prescribed, or they would be barred. But the court also said in that case: “No statute can be construed retrospectively when it. takes away subsisting vested rights. It cannot cut off all remedy and deprive a party of his right of action. ’ ’ Act 135 did not take away any subsisting vested rights and did not deprive the party of her right of. action. Act 135 contained no emergency clause, and we recently said: “If, therefore, an act is passed which does not contain an emergency clause in which the fact is stated constituting the' emergency, the act does not become effective until 90 days after the adjournment of the session of the general assembly at which it was enacted.” Gentry v. Harrison, 194 Ark. 916, 110 S. W. 2d 497. The general assembly of 1935, after the passage of this act, adjourned on March 14, 1935, and therefore the act did not become effective until 90 days after March 14, 1935. Appellant therefore had 90 days after the passage of the act in which she might have brought her suit. This provision of our constitution providing that acts without the emergency clause take effect 90 days after the adjournment of the Legislature gives parties 90 days and has- the same effect that an act would if passed and it were expressly stated in the act that in causes of action that had already accrued parties should have 90 days after the adjournment of the Legislature in which to bring suit. The Massachusetts court said: “The fact that the time allowed under the statute is the 30 days between the passage of the law and the day when it takes effect, instead of the same length of time expressly given by the terms of the act is immaterial. ’ ’ Mulvey v. City of Boston, 197 Mass. 178, 83 N. E. 402, 14, Ann. Cas. 349. The court in that case also said: “What shall be considered a .reasonable time must be settled by the judgment of the Legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal bar, unless the time allowed is manifestly, so insufficient that the statute becomes a denial of justice. ’ ’ The ■ Legislature could not pass a law that would cut off all remedy and deprive a party of his right of action. - ■ • ‘ “Statutes of limitation have to do, not with the obligation, but the remedy. They ‘are to be applied to all cases thereafter brought, irrespective of when the cause of action arose, subject, of course, to the universally recognized rule that they cannot be used to cut off causes of action without leaving a reasonable time within which to assert them.’ Osborne v. Lindstrom, 9 N. D. 1, 81 N. W. 72, 46 L. R. A. 715, 81 Am. St. Rep. 516. The time cannot be pronounced unreasonable unless ‘so short as under the circumstances to amount to a practical denial of the right itself.’ ” Kozisek v. Brigham, 169 Minn. 57, 210 N. W. 622, 49 A. L. R. 1260. It is a general rule that statutes of limitation are to be applied to all cases thereafter brought without any regard to when the cause of action arose, subject, of course, to the rule that they cannot be used to cut off causes of action without reasonable time given in which to bring suits. In construing statutes, it is the duty of the court to ascertain the intention of the Legislature. There does not appear to be anything in act 185 to indicate that it was the intention of the Legislature that it should apply only to causes of action that thereafter arose; but we think the act applies to all actions brought after the act 'became effective. The act provides that “hereafter all actions shall be commenced within three years after the cause of action accrues.” Again, there is no emergency clause, and the Legislature, in passing the act without such a clause, thereby gave all parties 90 days in which to bring suits where the cause of action accrued before the effective date of the act. The suit, of course, brought after the passage of the act and before it became effective, would be under the law that existed prior to the passage of the act. In the instant case the appellant had 90 days after the passage of the act in which to bring her suit, and whether 90 days was a reasonable time, was a question for the Legislature. “It is established that a statute of limitations, because it relates to the remedy only, will apply to a cause of action existing at the time it is passed if sufficient time has been allowed between the passage of the act and the time for the new limitation to take effect to give opportunity to persons having such causes to bring their suits or actions.” Cunningham v. Commonwealth, 278 Mass. 243, 180 N. E. 147. ‘ ‘Rut the Legislature may reduce the period of limitation within which an existing cause of action may be brought, if reasonable provision is made for opportunity to bring suit upon claims before they are barred, and tbe statute in question is applicable to rights previously vested, as well as to rights subsequently acquired.” Colby v. Shute, 219 Mass. 211, 106 N. E. 1006; Maloney v. Brackett, 275 Mass. 479, 176 N. E. 604. The complaint shows that on March 29,1926, the operation was performed for gall stones and hernia; that seven or eight weeks after the operation appellant began to suffer pains in the region of the gall bladder; that this suffering continued constantly until March 26,1936, when she had another operation. It was therefore practically ten years from the time of the operation by the appellee before she had the second operation, and, according to her own statement, she knew within seven or eight weeks after the first operation, as much as she knew ten years thereafter, when she had the second operation. She,, of course, did not know that a gauze had been left, and that this was what caused the suffering, but she did know that something caused the suffering and that it continued constantly for ten years. - There is no allegation in the complaint that there was any fraudulent concealment by the appellee or any concealment at all. Appellant only claims that she did not discover what caused the pain and suffering until the second operation. We think the cause of action was barred under act 135 of the Acts of 1935, and that the circuit court correctly sustained the demurrer. The judgment is affirmed.

John A. Fogleman, Justice. The petition of Houston Contracting Company and Continental Insurance Company for review of the decision of the Court of Appeals rendered on September 19,1979, is granted pursuant to Rule 29, § 6 (a) and (b) and the mandate to the trial court issued on that decision is recalled. The question involved is the application of the statute of limitations provided by Ark. Stat. Ann. § 81-1318 (Repl. 1976), a section of the Worker’s Compensation Law, when compensation for disability on account of an injury has been paid to the claimant under the laws of a sister state. It appears that the case is one of first impression in Arkansas and that there is a split of the authorities on the question in other jurisdictions. The question involves the interpretation and construction of an act of the General Assembly. The appeal was originally filed and docketed in this court as No. 79-221, under the style of Houston Contracting Company et al v. Jessie T. Young, but was transferred to the Court of Appeals, along with numerous other cases, by Per Curiam order of this court on July 9, 1979, prior to the filing of any briefs in the case. The appeal to this court was taken from the Circuit Court of Union County, which had affirmed the decision of the Workmen’s Compensation Commission. The case is both excepted from the jurisdiction of the Court of Appeals under Rule 29(l)(c) and involves an issue of significant public interest on a legal principle of major importance. Had a brief or jurisdictional statement revealing these facts been filed prior to the date of our order of transfer, the transfer should not have been made. The respondent, Jessie T. Young, advances the argument that, since petitioner acquiesced in the transfer by failing to object, it accepted the Court of Appeals as the appropriate forum for its appeal, and the petition for review should be denied. Although it is clear that any party to an appeal may move for a transfer of an appeal by this court under Rule 29(3) or for the certification of any appeal to this court by the Court of Appeals under Rule 29(4), the failure to do so is not a waiver of, or bar to, review under Rule 29(6) by this court. The reason is that the Court of Appeals may, and should, upon its own motion, certify to this court any appeal it finds to be excepted from its jurisdiction by Rule 29(1) or to involve an issue of significant public interest or a legal principle of major importance. If, however, the case had been appealed to the Court of Appeals from the Workmen’s Compensation Commission under Act 252 or 253 of 1979 [Ark. Stat. Ann. § 81-1323 (b) (Supp. 1979)], the case could not have been certified or transferred to this court prior to a decision having been made by the Court of Appeals. See Ward Manufacturing Company v. Fowler, 261 Ark. 100, 547 S.W. 2d 394. Harris, C.J., not participating.

David Newbern, Judge. This case was appealed to the Arkansas Supreme Court and assigned to the Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3). The chancellor awarded rescission of a real estate contract upon finding a breach of the contract by the appellant due to his failure to perform within a reasonable time. We affirm that result. Mr. and Mrs. Gray, the appellees, agreed to buy, and Mr. Kellum, the appellant, agreed to sell a house and lot for $138,500. The house was in the final construction phase, and the agreement provided Mr. Kellum was to finish the house with carpets, drapes, and other “custom” items selected by the Grays. Shortly after February 27, 1978, the date the agreement was entered, the parties began to argue. Mr. Gray, a long-time real estate dealer, heard some things about Mr. Kellum’s business reputation of which he did not approve, and he found Mr. Kellum argumentative with respect to the completion of the house. On March 13, 1978, the parties had a confrontation. Their descriptions of it differ. Mr. Gray said he offered to rescind the contract and allow Mr. Kellum to retain $5,000 of the $10,000 earnest money the Grays had paid if Mr. Kellum would accept the offer. Mr. Kellum’s version was that the Grays said they were backing out of the deal and demanded $5,000 of their $10,000 be returned. At that meeting, Mr. Kellum asked Mrs. Gray if the Grays had purchased the house next door to the one in question, and she said they had. The contract specifically provided the $10,000 would become liquidated damages if the buyers defaulted. Kellum says his posture thereafter became that of regarding the $10,-000 as forfeited and the contract terminated because of the Grays’ repudiation. The Grays take the position they were entitled to performance because they had only offered to rescind and their offer was not accepted. The chancellor, in his findings at the end of the trial and statements in his decree, said several highly inconsistent things. He said the parties had rescinded the contract, time was of the essence in the contract, and Mr. Kellum had failed to perform in a reasonable time. If the contract was rescinded, no performance by Kellum was required. If time was of the essence, then Kellum was required to perform at a specific time, and the “reasonable time” standard would not have applied. There was no evidence supportive of the conclusion that time was of the essence. Although we find the chancellor’s statements confusing, we are not bound by them on this de novo review, and we can review the record and reach the same result he reached despite them. See, e.g., Gentry v. Allen, 228 Ark. 236, 306 S.W.2d 695 (1957). Neither side questions the existence of the contract or that Mr. Kellum has not transferred the property to the Grays. The only question is whether he was justified in his refusal to perform. To prove an anticipatory repudiation of a contract, one must show a present, positive and unequivocal refusal to perform. Meinhardt v. Investment Builders Properties Co., 518 P. 2d 1376 (Colo. App. 1974); Rest. Contracts, §318 (1932). On that issue, Kellum had the burden of proof as he would on almost any factual assertion he might have urged as a defense. Armstrong & Co. v. Ben Pearson, Inc., 294 F. Supp. 163 (E.D. Ark. 1967); Coast Pump Associates v. Stephen Tyler Corp., 62 Cal. App. 3d 421, 133 Cal. Rptr. 88 (1976); Haas v. Cohen, 295 N.E. 28 (Ill. App. 1973); Audrey Apartments v. Komegay, 255 So. 2d 792 (La. App. 1971). He presented only his own testimony which was controverted by that of Mr. Gray. In addition, the Grays presented, as exhibits, copies of correspondence between the parties. In a letter of March 21, 1978, Mr. Kellum’s attorney conveyed to the Grays’ attorney an offer to release them from the contract under certain conditions including retention of $5,000 of the $10,000 deposit and retention of the remainder of it to the extent he sustained loss in a subsequent sale of the house. The letter is evidence that Mr. Kellum did not at that date regard the $10,000 as forfeited. On April 14,1978, his attorney wrote a letter saying the “deposit” was forfeited. On April 21, 1978, the Grays responded in a letter demanding a return of $5,000 or performance within 60 days. The complaint was filed July 31, 1978. In view of the entire record in this case, we cannot find that Mr. Kellum sustained his burden of proving the Grays repudiated their agreement with him in such a manner as to excuse his performance. Even if the record could be regarded as showing an anticipatory repudiation by the Grays, there is no evidence whatever that Mr. Kellum brought suit or materially changed his position before the Grays’ letter of April 21, 1978, informing him of their willingness to perform. Thus clear evidence of repudiation would be meaningless in view of this retraction. Rest. Contracts, §319 (1932). It is enough to say here that Mr. Kellum has not sustained his burden of proof on the issue of repudiation. He has failed to perform within a reasonable time, and rescission with restitution of the earnest money is an appropriate remedy. Economy Swimming Pool Co. v. Freeling, 236 Ark. 888, 370 S.W.2d 438 (1963). See also, Hogue v. Pellerin Laundry Machinery Sales Co., Inc., 352 F.2d 772 (8th Cir. 1965). Affirmed.

J. Fred Jones, Justice. Lafayette County Industrial Development Corporation filed suit in the Columbia County Chancery Court against the First National Bank of Magnolia seeking' restitution of funds deposited in the bank to the account of Magnolia Steel Corporation, and for a declaration of a constructive trust upon the funds so deposited. The bank challenged the sufficiency of the evidence by motion, amounting to a demurrer, under Ark. Stat. Ann. § 27-1729 (Repl. 1962). The chancellor granted the motion and the Development Corporation has appealed relying upon a single point for reversal, designated as follows: ‘ ‘ The ' Chancellor erred in dismissing the complaint of the appellant for the reason that as a matter of law the appellant’s proof entitled it to the relief, prayed. ’ ’ The primary factual background for this litigation appears as follows: Mr. W. H. Hoster was a resident of Oklahoma and was engaged in the steel mill business in Oklahoma City under the corporate or trade name of Oklahoma Steel Company. Hoster was interested in an Arkansas location for the establishment of a small roll ing mill for processing scrap steel. Mr. W. O. Blewster was the president of the First National Bank of Magnolia in Columbia County, Arkansas, and was an active member of the Magnolia Chamber of Commerce. Mr. Blewster was interested in obtaining new industry for the Magnolia area, so he, and other members of the Magnolia Chamber of Commerce prevailed upon Mr. Hosier to locate and build a rolling mill near Magnolia in Columbia County. As a first step in regard to the Magnolia program, on February 28, 1963, Mr. Hosier formed an Arkansas corporation named “Columbia Steel Corporation,” and with the exception of two qualifying shares, he was the sole owner of the stock issued. Lafayette County had been designated by the Area Redevelopment Administration (A.R.A.) as an area of substantial unemployment and eligible for financial assistance under federal laws; and Mr. Blewster owned an interest in an organization which has procured leases on iron ore deposits in Lafayette and Nevada Counties. Some leading citizens of Lafayette County were invited by Mr. Blewster to attend a Chamber of Commerce meeting in Magnolia where Mí1. Hoster was introduced and his plans for the rolling mill at Magnolia were explained. The citizens of Lafayette County were urged to attempt the procurement of a steel mill in their area under the A.R.A. program. The Lafayette County citizens proceeded to organize the appellant corporation for the purpose of sponsoring a steel mill and blast furnace project near Stamps under the A.R.A. program. On December 10, 1962, Mr. Hoster formed a domestic corporation named “Magnolia Steel Corporation” for the purpose of erecting a steel mill at Stamps for the processing of the iron ore in Lafayette and Nevada Counties. With the exception of two qualifying shares, Hoster was the owner of all the stock issued in this corporation. On April 5, 1963, Magnolia Steel applied for an A.R.A. loan and on August 9, 1963, a government loan was authorized for the project at Stamps in the amount of $977,763.00. The loan was to be secured by a mortgage subordinate only to the security for a loan to be made by the appellant bank and its correspondent banks in tlie amount of not more than $300,850.00. The appellant was required under the authorization to make available to Magnolia Steel not less than $150,425.00 in the form of equity capital or as a loan covered by a standby agreement. Under the terms of the authorization it was necessary for Magnolia Steel to have available, from sources other than the A.B.A. loan, not less than $375,212.00 in the form of equity capital. No less than $75,212.00 of this amount was to be spent solely on account of the cost of the project and no less than $300,000.00 was to be made available for working capital. As a part of the procedure in procuring the government loan, on November 20, 1963, the appellant agreed to loan to Magnolia Steel $150,425.00 to be secured by a third mortgage lien subordinate to a first mortgage lien securing a ¡oroposed loan by the appellee bank, and the lien of a second mortgage to be given to A.B.A. The appellant agreed to make the proceeds of its loan available to Magnolia Steel on or about December 20, 1963. This agreed loan was to be evidenced by a note temporarily secured by a mortgage on land to be acquired for the project. In carrying out its agreement, the appellant caused to be issued and sold, Lafayette County Industrial Development bonds in the amount of $150,425.00, and the appellee, First National Bank of Magnolia, was made paying agent. These bonds were sold to citizens of Lafayette County and by December 23, 1963, the appellant had raised the net amount of $146,425.00. In the meantime, Columbia Steel was engaged in financing its own operation in connection with the construction and operation of its plant in Columbia County near Magnolia. In February and March, 1963, the ap pellee bank made two loans totaling its loan limit of $110,000.00 to Columbia Steel. The appellee made various loans to Mr. Hoster and on November 26, 1963, made loans, apparently carried on the books as cash items, in the amount of $75,000.00 to Hoster and $50,-000.00 to Oklahoma Steel. On the same date, November 26, 1963, the appellee made an unsecured loan of $100,000.00 to Magnolia Steel. No part of this loan was ever deposited to the account of Magnolia Steel, but on November 27, 1963, the day following the loans to Hoster, Oklahoma Steel and Magnolia Steel, the sum of $225,000.00 was deposited to the account of Columbia Steel. There were several withdrawals from the Columbia Steel account, including $75,000.00 in repayment of the loan to Hoster, and $50,000.00 in repayment of the loan to Oklahoma Steel.. . The appellant knew nothing of the appellee’s loan of $100,000.00 to Magnolia Steel, when on December 23, 1963, the appellant delivered its check to Magnolia Steel in the amount of $146,425.00.- The check was endorsed by Hoster who then handed it to Blewster, and on the following day, December 24, 1963, the check was deposited in the appellee bank to the account of Magnolia Steel. On December 27, the next banking day following Christmas, $100,000.00 was withdrawn from the account of Magnolia Steel and used to purchase a cashier’s cheek made payable in the amount of $100,000.00 to the appellee bank as security for the $100,000.00 loan made on November 26 to Magnolia Steel and deposited to the account of Columbia Steel. Subsequent to the above transactions, Mr. Blewster resigned as president of the Magnolia bank; the cashier’s check was cashed and the proceeds applied in satisfaction of the bank loan to Magnolia Steel; Magnolia Steel canceled its loan application with A.R.A. and Magnolia Steel was merged with Columbia Steel. The appellee bank purchased the assets of Columbia Steel in Columbia County under mortgage foreclosure and appellant purchased at foreclosure the only assets of Magnolia Steel, consisting of eighty acres of land for plant site in Lafayette County, which had been purchased for $24,000.00 and paid for, at appellant’s insistence, out of the proceeds of the bond sale deposited to the account of Magnolia Steel. We now come to the point of law on which this case turns. The appellee challenged the sufficiency of the evidence by motion filed under authority of Ark. Stat. Ann. § 27-1729 (Repl. 1963), which provides that in any chancery case the defendant may, at the close of plaintiff’s case, file a written motion challenging the sufficiency of the evidence to warrant the relief prayed. If the trial court grants the motion and we reverse his action on appeal, we are required by the statute to remand the cause for the development of the defendant’s proof. In arguing the insufficiency of appellant’s evidence, the appellee says: “ [I] t offers no evidence that the First National Bank or any of its officers knew, or had reason to know, that W. H. Hoster was not spending these funds on behalf of Appellant. Proof from Appellant’s own officers shows that they, like the Bank president, all understood and believed that W. H. Hoster was using funds to plan for, purchase, and construct equipment for the Magnolia Steel Corporation.” (Emphasis supplied.) Appellee concludes its argument with this statement: “The Chancellor heard the testimony; he observed and heard the evasiveness of Appellant’s officers much of which is obscured in the abstract of testimony. The Chancellor knew the quantum of proof required, and Ms duty to dismiss upon motion properly presented.” We agree witli the appellant that this case is controlled by our decision in Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225, and although the trial court mentioned “ prepon derance of the evidence” in the Werbe case and the chancellor did not do so in the. case at bar, we are of the opinion that in hearing the testimony and observing the evasivenesss of appellant’s officers, as argued by the appellee, the chancellor also considered what he observed and heard, and that he weighed the evidence in arriving at his conclusion to grant appellee’s motion in this case. In so doing we conclude, that the chancellor erred. Werbe v. Holt, supra, was a case of first impression under Ark. Stat. Ann. § 27-1729, supra, and as to the questions raised by the statute and answered in Werbe, we said: “When the defendant in an equity or probate case asks for judgment at the close of the plaintiff’s testimony, should the trial judge view the evidence in the light most favorable to the plaintiff to determine whether a prima facie case has been made, or should he weigh the testimony to decide whether the plaintiff has proved his case by a preponderance of the evidence? In short, does a motion filed under Act 470 present an issue of law or of fact? # # * After a painstaking study of this matter we are unanimously of the opinion that the motion presents a question of law and not of fact. The General Assembly evidently chose its language with care, and what the motion challenges is ‘ the sufficiency of the evidence’ to warrant the relief prayed. The quoted phrase has a familiar legal meaning — a meaning that does not involve the weighing of evi deuce. For instance, it is often said that the defendant’s motion for a directed verdict in suits at law challenges ‘the sufficiency of the evidency’ to take the case to the jury. Here the legislature has used a phrase of well known legal signification, and it is presumed to have used the language in that sense. Fernwood Mining Co. v. Pinna, 138 Ark. 459, 213 S.W. 397. * * * The question may arise either in equity cases, where the chancellor is the arbiter of the facts, or in cases tried at law without a jury where also the trial judge decides all issues of fact. By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case.” In Neely v. Jones, 232 Ark. 411, 337 S.W. 2d 872, the correctness of sustaining a demurrer to evidence was again raised, and in that ease we said: “The only question is whether the demurrer to the evidence was properly sustained. This depends, under our holding in Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225, upon whether the proof, viewed in its most favorable light, would have presented a question of fact for the jury if the case had been tried at law.” In reversing the chancellor’s decree sustaining the demurrer in Neely v. Jones, this court said: “Here the trial court’s action in sustaining a demurrer to the evidence can he affirmed only if the plaintiffs offered no substantial testimony upon the controlling question of fact. We are unable to say tliat their proof falls completely short of establishing a prima facie case.” What the chancellor did in the case at bar was tantamount to directing a verdict for the defendant at the close of the plaintiff’s evidence in a law case. In Hawkins v. Missouri Pacific Railroad Co., Thompson Trustee, 217 Ark. 42, 228 S.W. 2d 642, this court said: “A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.” And again in St. Louis, I.M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S.W. 786, we said: “The rule is that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury.” We conclude that the appellant offered some substantial evidence in support of its allegations in this case and that the chancellor erred in granting appellee’s motion before the appellee offered additional evidence or rested its case. The decree of the chancellor is reversed and this cause remanded for a complete trial on the merits. ^Reversed and remanded.

Humphreys, J. Appellee brought suit in the circuit court of Saline county against appellants to recover damages in the sum of $3,000 for personal injuries received by her while assisting C. C. Toll, an employee of appellants, lifting at his request, a motor-car on the railroad track of appellants near Traskwood. The negligence alleged was that while she and her son-in-law, John Dixon, were assisting said employee in turning the motor-car around and replacing it on the track, C. C. Toll gave it a sudden shove or jerk without warning to her, which caused her to either slip or catch her foot on a tie or rail and twist her ankle and strain her back, shoulder and right side, thereby painfully injuring her. Appellants filed an answer denying that C. 0. Toll liad authority to request appellee to assist him in lifting the motor-car back on the track or that an emergency existed from which such authority to make the request might be implied. The cause was submitted to a jury upon the pleadings, evidence and instructions of the court resulting in a verdict and consequent judgment for $100 against appellants, from which is this appeal. The evidence, stated in the most favorable light to appellee, is, in substance, as follows: On May 20, 1£ 36, in the daytime, C. C. Toll had taken the motor-car off the track to allow a train to pass and it rolled down a slight embankment; that she and her son-in-law were going up the railroad to see- the foreman about her yearling that had been killed in the operation of one of their trains; that when they arrived at the point where the motor-car was, she inquired of Toll where the section foreman could be found and Avas informed that the foreman was in Benton; that after explaining to Toll that her heifer had been killed, he requested them to help him lift the motor-car back on the track, and said he would let them ride doAvn to the mile post where her yearling Avas killed, and he would turn the information in to the office for her; that he told them where to take hold of the motorcar to help him, and when they lifted the car “her foot ‘kinda’ got tangled up Avith the rail and twisted in her shoe, and when this happened it gave her a wrench and twisted and wrenched her shoulder” which caused her much pain and suffering for many months; that after her injury they rode down to the mile post and Dixon showed Toll Avhere the yearling was killed and Toll got on the motor-car and went down the track toward Malvern; that she did not fall or turn the car loose, but got blind; that the others did not stumble or turn the motor-car loose. No evidence was introduced tending to show that Toll shoved or .jerked the motor-car during the time appellee and her son-in-law were helping Toll lift it on the track. The Aveight of the motor-car is not disclosed by the evidence. Appellee testified that it Avas heavy, but Dixon SAA'ore it Avas not very heavy. The undisputed evidence shoAved that Avhen operating the car one person lifted it off and on the track. Two questions are involved in this appeal the first being whether there is any substantial evidence showing that an emergency existed that warranted or justified appellants’ employee in requesting or employing appel-lee in lifting the motor-car hack on the rails and, if so, the second being whether the employee was guilty of any negligent act which caused the injury complained of. (1). The general rule is that a servant has implied authority to employ or request assistance to perform a duty where an emergency or exigency arises requiring immediate action to protect the interest of a master. Henry Quellmalz Lbr. & Mfg. Co. v. Hays, 173 Ark. 43, 291 S. W. 982; Booth & Flynn v. Price, 183 Ark. 975, 39 S. W. 2d 717, 76 A. L. R. 957. There is no substantial evidence in this record tending to show that there was any pressing or immediate necessity for lifting this motor-car back on the rails to protect the interests of appellants. We, therefore, conclude that appellee was a volunteer and assumed the risk incident to the assistance she rendered. (2). There is no substantial evidence in the record showing that C. C. Toll was guilty of any act of negligence that caused appellee to catch the heel of her shoe on the rail so as to twist her foot and wrench her shoulder and back. It was alleged in the complaint that Toll shoved or jerked the motor-car when she was helping lift or pull it on the rails, but neither she nor her son-in-law testified that he shoved or jerked it while lifting it on the rails. In order to recover, the burden was upon appellee to prove by a preponderance of the evidence that such an emergency had arisen as would call for her assistance in the matter, and that C. C. Toll was guilty óf some act of negligence that was a proximate cause of her injury. There is no substantial evidence in the record to support the verdict of the jury finding that such emergency had arisen or that Toll was guilty of negligence. The court should have instructed a verdict for appellants on the record made in accordance with the request of appellants to do so, and, as the case has been fully developed, the judgment is reversed, and the cause is dismissed.

John A. Fogleman, Chief Justice. This action was commenced by appellee and cross-appellant Grand National Bank against appellants on two promissory notes executed by them on November 5, 1975. They were: a short term ninety-day note in the principal amount of $15,000, with interest at ten percent, renewable at maturity with an eight percent reduction in principal, and a note for the principal sum of $22,000 with ten percent interest to be paid over ten years in one hundred twenty equal installments. Appellee’s loan clerk prepared the notes, a deed of trust, a security agreement and a financing statement using the total proceeds of the two notes as the total amount financed and excluding any charges for credit life insurance. Several errors were made in the preparation of the documents. The deed of trust and the security agreement prepared by the loan clerk referred to only one promissory note for $37,000 and were therefore incorrectly drawn, a fact overlooked by both parties at the time. At the closing, appel lants requested credit life insurance on both promissory notes. This required an additional advance of funds, but appellee’s loan officer, instead of preparing new documents, tried to make corrections on the face of the notes. These corrections were initialed by Roger Winkle. The amount of the monthly payments in the body of the installment note, however, was not changed to correspond to the adjustment made for the credit life insurance until the discrepancy was discovered at the close of the appellee’s business day. The total amount recited as due in the body of the installment note was not corrected. Soon after the notes were executed, appellants received a payment book showing payments which had been increased to cover the amount of the premium for the credit life insurance as a part of the principal. Appellant made these payments for approximately one year in the amount shown in the coupon book, rather than the amount of the lower installment payments indicated in the note. The Winkles subsequently defaulted on both promissory notes and, on May 5,1977, the bank brought this suit to collect the balance due on them. The bank, having discovered the errors in the documents, sought reformation of these instruments as well as judgment for the balance due on both notes and foreclosure of the security instruments. Appellants’ answer was a general denial but they filed a counterclaim and an amendment thereto, alleging that appellee had violated the Truth in Lending Act and that the loan was usurious. They also sought to recover actual and punitive damages, alleging that the bank’s officer had willfully, maliciously, and intentionally misled them in the transaction. The chancellor found that: the Winkles desired to borrow funds sufficient to refinance outstanding obligations and to provide additional capital for their business, Winkle Handbag and Fabric Center; because the loan was primarily (even overwhelmingly) for business purposes, the bank was not required to comply with the provisions of the Truth in Lending Act; the instruments should be reformed to describe the intentions and agreement of the parties; and the $22,000 installment note was usurious. Because appellee is a national bank and, therefore, subject to federal regulation, the judgment rendered for appellants was in the amount of twice the interest they had paid on the $22,000 note. Appellee bank was awarded the balance due on a renewal of the $15,000 note and the remaining principal of the $22,000 note, less interest and the credit life premium. Appellants rely upon five points for reversal: I THE CHANCELLOR ERRED IN NOT FINDING THE ENTIRE LOAN TRANSACTION USURIOUS BY EXCLUDING THE $15,000 DEMAND NOTE. II THAT THE CHANCELLOR ERRED IN NOT VOIDING THE $22,000 INSTALLMENT NOTE. III THE CHANCELLOR ERRED IN FINDING THAT A MUTUAL MISTAKE OF ERROR TOOK PLACE IN THE PREPARATION OF A DEED OF TRUST. IV THE CHANCELLOR ERRED IN EXEMPTING THIS LOAN TRANSACTION FROM THE PROTECTION OF THE TRUTH IN LENDING LAW AS TO THE RIGHT OF RESCISSION. V THE CHANCELLOR ERRED IN SUSTAINING DEMURRER FOR DAMAGES. Appellee cross-appeals alleging error on three points: I THE CHANCELLOR ERRED IN CONCLUDING THAT THE ACCRUAL OF INTEREST USING THE “RULE OF 78’s” RENDERED THE $22,000 PROMISSORY NOTE USURIOUS. II THE CHANCELLOR ERRED IN CONCLUDING THAT THE USE OF THE ‘ ‘ RULE OF 78’ s’ ’UNDER THE WORDING OF THE PROMISSORY NOTE RENDERED THE NOTE USURIOUS. III THE CHANCELLOR ERRE D IN FIN DIN G THAT THE COMMISSION EARNED ON THE CREDIT LIFE INSURANCE PREMIUM RENDERED THE NOTE USURIOUS. We will first treat appellants’ arguments and then consider appellee’s three points on cross-appeal. I Appellants, in their pro se brief, argue that not only the $15,000 promissory note, but the whole transaction, was usurious because appellee did not prove at trial that credit life insurance was issued on that note and, therefore, a charge for a credit life insurance premium was actually hidden interest. Appellants also contend that the $15,000 note as renewed on April 13, 1976 is usurious on its face. Appellee bank, while protesting that this issue was raised for the first time in appellants’ post-trial brief, stated that the policy was not introduced at trial because of an oversight of counsel. The record reveals that the foundation had been laid for the policy’s introduction into evidence, but two copies of the policy on the $22,000 note were introduced instead and appellee’s attorney had misplaced the document in question. Because the attorney felt that the validity of the policy was not at issue at trial, the oversight was never corrected. Appellee attached the policy to its post-trial brief as an exhibit. Even though more than one month elapsed between the filing of this brief and the filing of the chancel lor’s findings of fact and law, the chancellor obviously considered the policy without objection from appellants. The chancellor found that the original figures typed on the face of the note had been changed, when the Winkles elected to take credit life insurance, to include the amount of the premium $51.75 and the changes had been initialed by Roger Winkle. Appellants complain that appellee failed to produce this policy in response to a subpoena duces tecum which they had caused to be served upon appellee three months before the trial which was held on October 25, 1977. This subpoena called for appellee to bring all documents regarding the execution of the promissory notes for $22,000 and $15,000 to a hearing to be held on June 28, 1977. Although both parties abstract portions of the record, it is not clear to us whether the hearing was held or its nature, if held. It must have been one of several preliminary hearings mentioned in appellants’ statement of the case, one of which was held on June 29, 1977. There is no indication that the case had been set for trial on either date. We find no indication that the subpoena required production of the policy, or other documents at the trial. Appellee’s attorney claims to have been misled into the belief that appellants were not raising any issue as to the credit life insurance until the question was raised in a post-trial brief filed by appellants. A stipulation was entered into on October 19, 1977, which was a week prior to actual trial, although it appears that this may have been the date on which the trial was originally set, because the parties agreed in the stipulation that the Winkles were entitled to a continuance. That stipulation included the following paragraphs: 2. That the defendants’ allegation of usury is evidenced by the computerized statement mailed to them by Systematics, Incorporated, which reflects computation of earned interest for the calendar year 1976. 3. That said defendants specifically waived any other allegations of usury as to the time of making of the promissory notes involved, any demands for payment or any demands made by the pleadings herein. Appellee and its attorney were cerainly justified in believing that the question of credit life insurance was not an issue until appellants asserted in their post-trial brief that the $51.75 was a masked interest charge because no policy was ever issued. George Lefler, Executive Vice-President of Grand National Bank testified that a credit life insurance policy was issued, the premium added to the $ 15,000 principal advanced and interest charged on the total amount financed. Lefler also testified that the credit life insurance was issued by an independent insurance company and the policy issued to the Winkles was in the loan file and still in effect at the time of trial. Mrs. Carolyn Phillips, Assistant Vice-President of Grand National Bank, testified that she took the Winkles’ application for credit life insurance. At that time, she claims, she gave Mrs. Winkle a form for a physical examination to be returned directly to the insurer by Mrs. Winkle or her doctor. Mrs. Phillips stated that the habit of the insurance company when it received the physical examination forms was not to notify the bank, and silence was presumed to be acceptance on their part. Mrs. Phillips did not hear from the insurance company and she presumed the Winkles’ policy was accepted. Mrs. Phillips also testified that she altered the $15,000 note to reflect the credit insurance. Appellants also contend that the payments provided for made the note usurious, pointing out that Mike Allen, an accountant called as a witness by the Winkles, testified that he included the credit life insurance premium as principal and calculated the interest allowable on the $15,000 note at 10 percent and found that, considering information statements issued by the bank for the year 1976, there was an overcharge of one cent for that year. He recognized that the statements sent out by the bank were for information purposes mainly to be used by the taxpayer for verification to the Internal Revenue Service as to the amount of interest paid for the year. He also testified that there are untold formulas for computing interest. The Expanded Monthly Tables published by Financial Publishing Company were exhibited. Neither party abstracted this exhibit, so we cannot show the interest calculations on this note (or its renewals), according to these tables. The note was due 90 days from its date. It was paid by a renewal note dated April 13, 1976. Interest was paid up through the date of this renewal. The renewal note was again renewed on August 20, 1976 at which time interest was paid in full and a reduction made of the principal balance. This note was then renewed on December 17, 1976, when interest was again paid in full and there was a reduction of $600 in principal. It is well known that different methods of interest calculation may produce results that may vary as much as one cent or more, for a one year period, sometimes by the rounding off of odd cents. Appellants argue that the April 13 renewal shows usury on its face because the interest showed that it was figured for 99 days while the due date indicated in the lower right hand side of the note was July 3,1976, 81 days from the date of the note. The note was renewed for 99 days. A renewal of this note took place 99 days after its date and there is no indication that the interest paid at that time was excessive. The self-contradictory dates do not, in and of themselves, make the note usurious. The chancellor found that appellee was entitled to judgment against appellants under the terms of the $15,000 note for the amount of its last renewal on December 17,1976. We agree. Appellants had the burden of proving usury by clear, satisfactory and convincing evidence. First American National Bank v. McClure Construction Co., 265 Ark. 792, 581 S.W. 2d 550; Arkansas Real Estate Co. v. Buhler, 247 Ark. 582, 447 S.W. 2d 126. This burden they have failed to meet. It is axiomatic that the chancellor’s findings will not be reversed unless they are clearly against the preponderance of the evidence. Gibson v. Heiman, 261 Ark. 236, 547 S.W. 2d 111; Titan Oil & Gas, Inc. v. Shipley, 257 Ark. 278, 517 S.W. 2d 210. Appellants also argue that the $22,000 note was usurious on account of credit life premiums charged, but we will treat that question when we consider the cross-appeal. II Appellants contend that the chancellor erred in not voiding the $22,000 note because of appellee’s fraudulent and material alteration of this instrument, relying on Ark. Stat. Ann. § 85-3-407 (Add. 1961). Section 85-3-407 provides: Alteration. — (1) Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in (a) the number or relations of the parties; or (b) an incomplete instrument, by completing it otherwise than as authorized; or (c) the writing as signed, by adding to it or by removing any part of it. (2) As against any person other than a subsequent holder in due course (a) alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense; (b) no other alteration discharges any party and the instrument may be enforced according to its original tenor, or as to incomplete instruments according to the authority given. Clearly appellants are not discharged unless the alteration is both fraudulent and material, changes the contract of a party thereto and was made without the assent of that party seeking to be discharged. The changes made in the $22,000 note were the result of the Winkles’ request for credit life insurance and were reflected with their assent as evidenced by Roger Winkle’s initialling of these changes. The subsequent correction in the amount of the monthly payments was merely for the purpose of conforming the payments to the actual agreement of the parties. We agree with appellants and the trial court that the various errors, discrepancies and corrections rendered the note non-negotiable, but this fact had no effect on the valid ity of the note between the parties, even though none of the errors were directly attributable to the Winkles. Carolyn Phillips, who handled the transaction with the Winkles, testified that she had calculated the amount of the monthly payments and had explained to the Winkles that their payments on the note would be $329.97, the correct amount, which was the amount shown in the coupon book sent them two weeks later. Mrs. Winkle said that she called and protested at this time and that Mrs. Phillips said credit would be given if there was any error. Mrs. Phillips said that she could not recall the Winkles voicing any objection. Even though Mrs. Winkle said she mentioned the amount every time they made a payment, the Winkles made these payments by check for a year without noting a protest on them. The name of the unincorporated business of the Winkles was changed to correspond with the name as it was shown on a form previously filled out by the Winkles. We cannot say that there was a preponderance of the evidence to show any alteration of the deed of trust that changed the contract. The contract was for $39,596.40 to be paid in 120 equal installments. The bank simply corrected the error in the amount of the monthly payments to accomplish this agreement. See Teratron General v. Institutional Investors Trust, 18 Wash. App. 481, 569 P. 2d 1198 (1977); 2 Anderson, Uniform Commercial Code 954, § 3-407:14 (2d ed.) 1971. Ill Appellants assert that the chancellor erred in reforming the deed of trust because of mutual mistake in its preparation. There were two errors in the instrument: the recitation that there was one promissory note in the amount of $37,000 and the statement that the promissory note was payable in equal monthly installments of $290.74. The chancellor found that the deed of trust was executed by the Winkles as partial security for the $22,000 note; that a mutual mistake and error took place in its preparation; and that the deed of trust should be reformed to describe accurately the note it secured. According to testimony at trial, the reference to one $37,000 promissory note rather than the $22,000 installment loan resulted from a loan clerk’s error in the preparation of the deed of trust. Appellee’s loan officer, Carolyn Phillips, testified that the error occurred when the loan clerk improperly used the total principal amount of the loan to be secured, rather than the amount of the installment note. The second error occurred when appellants requested credit life insurance and the amount to be repaid on the note was increased. The original monthly installment of $290.74 recited in the deed of trust was not changed to reflect this increase in the amount of the note. The only real disagreement about the terms relates to the $ 15,000 note. The Winkles testified that they were to pay interest only on the $15,000 note until their business improved so they could make payments on the principal. Proof to establish the right of reformation must be clear and decisive. Williams v. Killins, 256 Ark. 491, 508 S.W. 2d 753; Goodrum v. Merchants and Planters Bank, 102 Ark. 326, 144 S.W. 198. There is, however, no requirement that the proof be undisputed. Meeks v. Borum, 240 Ark. 805, 402 S.W. 2d 408. There is a clear preponderance of the evidence to show that the deed of trust as reformed evidences the parties’ intent and agreement. Chancery courts have the power to correct mutual mistakes such as this one and under these circumstances it was appropriate that the chancellor exercise this power. IV Appellants argue that the chancellor erred in exempting the loan from the requirements of the federal Truth in Lending Act, 15U.S.C. § 1601,etseq. Section 1603(1) of that Act states: This subchapter does not apply to the following: (1) Credit transactions involving extensions of credit for business or commercial purposes, or to government or governmental agencies or instrumentalities, or to organizations. The chancellor found that the loan was ‘ ‘primarily, even overwhelmingly, for business purposes” and that the bank therefore did not come within the provisions of the Truth in Lending Act. In the opening statement of their brief, appellants say that the net proceeds of the loan, after refinancing of all their outstanding loans, both business and personal, were to be used for purchases in the Winkles’ business. Mrs. Phillips testified that the Winkles applied for the loan to pay off two loans by First National Bank of Hot Springs and two loans by appellee, which required approximately $34,000. One of the loans by First National Bank was a Small Business Administration loan. The Grand National loans totaled $5,397.67. The balance of the loan proceeds, after payment of these loans, amounted to $3,989.45, and was deposited into the Winkle Fabric account to purchase inventory. Mrs. Winkle testified that the loan from First National Bank had been used to purchase inventory and fixtures, for building rental and for operation of the business and that the proceeds of both loans were used for business purposes. Although Mrs. Winkle testified that the loans retired at Grand National had been personal loans, she admitted that the proceeds had been deposited in the business bank account and that a part of the proceeds of those loans may have been used for the business. The fact that the Winkles may have drawn checks on this account for personal purposes does not change the nature of the loan at the time it was made. The evidence establishes that the proceeds of the loan were applied primarily to retire business debts and purchase inventory. The chancellor’s finding that the loan was exempt is supported by a clear preponderance of the evidence. V Appellants contend that the chancellor erred in sustaining appellee’s demurrer to their claim for actual and punitive damages. A party seeking damages has the burden of proving the claim; if no proof is presented to the trial court that would enable it to fix damages in dollars and cents, the court cannot award damages. Mason v. Russenberger, 260 Ark. 561, 542 S.W. 2d 745; Tolbert v. Samuels, 229 Ark. 676, 317 S.W. 2d 715. Appellants failed to establish any proof upon which a judgment for actual damages could have been based, even if they had established any right to recover damages. Nor can punitive damages be awárded in the absence of actual damages. Tolbert v. Samuels, supra. In our view of the case, however, they have not established any right to recover any damages. CROSS APPEAL I & II On cross-appeal appellee alleges error in the chancellor’s findings that accrual of interest using the “Rule of 78ths” and the use of the rule under the wording of the $22,000 note rendered that note usurious, violating Art. 19, § 13 of the Constitution of Arkansas. The question is whether this note, not usurious on its face or if paid according to its terms, can become a usurious transaction through the use of a mathematical formula, the Rule of 78ths. The Rule of 78ths is an accounting method of accruing interest and of refunding unearned interest when an installment note is paid before maturity. It approximates the interest accrued by using a system developed on the basis of an installment contract for one year where equal payments are made monthly. The calculation is made on a one year contract by using the number of outstanding payments as the numerator and the total number of payments (1 + 2 + 3+ 4 + 5 + 6 + 7 + 8 + 9 + 10 + 11 + 12) or 78 as the denominator in a fraction then multiplied by the total interest added to the principal to indicate the interest accrued. Thus, 15.38 percent of the total interest to be paid on a one year installment contract, if installments were paid as scheduled, would be considered as having accrued in the first month and 1/78 of 1.28 percent during the twelfth month. For a longer term note, the fraction to be used would be arrived at by using the same method. A series of tests exhibited by appellee reveal that the cross-over point at which the interest calculated as simple interest first exceeds that accruing from application of the Rule of 78ths is near one-third the life of the loan. So, if a borrower voluntarily paid the loan during the first one-third of the term, he would pay more interest than would have been earned on a straight simple interest calculation, but thereafter, the total interest paid on prepayment would be more nearly equal to that calculated on the conventional simple interest method. The formula was developed to reasonably relate interest earnings to outstanding principal. The testimony of George Lefler, Executive Vice President of Grand National Bank, described the Rule of 78ths as having nothing to do with calculating interest on a loan, but rather as applying only to prepayment of a loan or the accrual of interest income. Lefler’s testimony and the chancellor’s findings of fact described the rule’s purpose as the acceleration of the payment of interest during the earlier months of the term of an installment note in those cases where the interest for the entire term has been added to the balance of the note. This note provided that: ‘ ‘ Credit on prepayment of this note shall be computed in accordance with the ‘Rule of 78ths’, there being no penalty for prepayments.” Appellee bank, an accrual method taxpayer, contends that because of this provision in the note it had no legal alternative but to accrue and report interest income in accordance with the Rule of 78ths, referring to Treas. Reg. § 1-451-1 (a); Rev. Rul. 72-562,1972-2 D.B. 231; Rev. Rul. 72-100,1972-1 C.B. 122. An example contained in Rev. Rul. 72-562, supra, states that if the Rule of 78ths is specified in a contract as the method for determining a prepayment rebate, interest on that installment contract must be accrued in accordance with the Rule of 78ths. Appellants as borrowers received year-end statements from appellee reflecting the amount the bank had accrued on its books as interest income for that year. The statement received by appellants in January, 1977, read, “Our records indicate you have paid $2,717.97 interest in 1976 on Account 00418009.” The account number is the number of the $22,000 installment loan. The bank contends that these statements are informational and do not necessarily reflect the amount of interest actually paid by the debtor, but rather are prepared to reflect the total accrual on a note for the tax year. The chancellor found that interest at 10 percent per annum on this loan would have been $2,496.98 and therefore the statement sent by the bank reflected interest collected by the bank in excess of 10 percent per annum and that the bank intended to collect interest in excess of 10 percent per annum. We do not consider the Rule of 78ths as it applies to prepayment, there being no question of prepayment in this case. Certain fundamental rules are adhered to by the courts in determining if usury is present: 1. When usury is alleged, the test is whether the borrower promised to pay a greater rate of interest than the law permits and the lender knowingly entered into a usurious contract intending to profit by the methods employed. Commercial Credit Plan, Inc. v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009; General Contract Corp. v. Duke, 223 Ark. 938, 270 S.W. 2d 918; Blalock v. Blalock, 226 Ark. 75, 288 S.W. 2d 327; Brown v. Central Arkansas Production Credit Ass’n., 256 Ark. 804, 510 S.W. 2d 571; Ragge v. Bryan, 249 Ark. 164, 458 S.W. 2d 403; Peoples Loan & Inv. Co. v. Booth, 245 Ark. 146, 431 S.W. 2d 472; Davidson v. Commercial Credit Equipment Corp., 255 Ark. 127, 499 S.W. 2d 68. 2. The burden is upon one asserting usury to show that the transaction is usurious. Wallace v. Hamilton, 238 Ark. 406, 382 S.W. 2d 363; Cox v. Darragh Co., 227 Ark. 399, 299 S.W. 2d 193; Key v. Worthen Bank & Trust Co., 260 Ark. 725, 543 S.W. 2d 496; Poole v. Bates, 257 Ark. 764, 520 S.W. 2d 273; Brown v. Central Arkansas Production Credit Ass’n., supra; Knox v. Goodyear Stores, Inc., 252 Ark. 530, 479 S.W. 2d 875; Nineteen Corp. v. Guaranty Financial Corp., 246 Ark. 400, 438 S.W. 2d 685; appeal after remand, 250 Ark. 832, 467 S.W. 2d 728; Geyer v. First Arkansas Development Finance Corp., 245 Ark. 694, 434 S.W. 2d 301; Peoples Loan & Inv. Co. v. Booth, 245 Ark. 146, 431 S.W. 2d 472; McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W. 2d 409. Because of the highly penal nature of our usury law, the plainest principles of justice require that it be clearly shown that the transaction is usurious. Arkansas Real Estate Co. v. Buhler, 247 Ark. 582, 447 S.W. 2d 126. 3. In determining whether a contract is usurious it must be viewed as of the time it was entered into and it must be presumed that it will be performed according to its terms. See General Contract Corp. v. Duke, supra; Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S.W. 2d 802; Harris v. Guaranty Financial Corp., 244 Ark. 218, 424 S.W. 2d 355; Foster v. Universal C.I.T. Corp., 231 Ark. 230, 330 S.W. 2d 288, 75 A.L.R. 2d 1260; Sager v. American Investment Co., 170 Ark. 568, 280 S.W. 654; Eldred v. Hart, 87 Ark. 534, 113 S.W. 213; 55 Am. Jur. 331, Usury, § 12; Hayes v. First National Bank of Memphis, 256 Ark. 328, 507 S.W. 2d 701; Brown v. Central Arkansas Production Credit Ass’n., supra; McCoy Farms, Inc. v. J&M McKee, supra. 4. The actual test of a transaction alleged to be usurious is whether the total amount the borrower will be required to pay is greater than the total amount he could be required to pay to retire the principal indebtedness with interest at 10 percent per annum for the term thereof. McDougall v. Hachmeister, 184 Ark. 28, 41 S.W. 2d 1088; Davidson v. Commercial Credit Equipment Corp., supra. 5. Usury will not be presumed, imputed or inferred where an opposite result can be reached. Hayes v. First National Bank, supra; Davidson v. Commercial Credit Equipment Corp., supra; Peoples Loan & Investment Co. v. Booth, supra; Universal C.I.T. Credit Corp. v. Hudgens, 234 Ark. 1127, 356 S.W. 2d 658; Brittian v. McKim, 204 Ark. 647, 164 S.W. 2d 435; Brown v. Fretz, 189 Ark. 411, 72 S.W. 2d 765. Applying these principles, we conclude that the method of accrual used by the bank, the Rule of 78ths, does not render this note usurious. There is nothing in the note itself which reflects any excessive interest charge. Mike Allen, a certified public accountant testifying on behalf of appellants, stated that the note was correct on its face with interest for the term at 10 percent being calculated “right on the button.” The chancellor found that if the note had been paid according to its terms, interest would have amounted to ten percent per annum. The year-end statements sent by the bank were informational only, reporting to the bank’s debtors the amount of the bank’s annual accrued interest on a loan; the bank was not expecting or demanding payments in accordance with these statements. The statements did not affect or alter the agreement between the parties and the fact that the bank accrued for tax and accounting purposes an amount of interest greater than 10 percent in any year did not affect the debtors’ contractual obligation to pay $329.97 per month for a period of 120 months. The reports received by the borrowers reflected the amount of interest the bank was required to accrue on its books and report to the Internal Revenue Service in accordance with IRS requirements and were not statements of appellants’ interest obligations under the note. The mere fact that the agreement provided for use of the Rule of 78ths in case of voluntary prepayment by the borrower, even though the agreement stated that there was no prepayment penalty, did not make the note usurious. If the Winkles permitted the note to run until maturity, they would not have paid more than 10 percent per annum in interest, if each installment was paid when due. They could not have been compelled to make any prepayments. They only obligated themselves to pay the installments as they came due, so the contract, as it could have been enforced against them, was not affected with usury. A voluntary prepayment in the exercise of an option given by the contract does not render the contract usurious even though the creditor receives, in the aggregate, a sum more than the principal and the maximum legal rate of interest. Eldred v. Hart, 87 Ark. 534, 113 S.W. 213. A debtor cannot by making a payment in advance of its due date convert a valid loan into a usurious one. Green v. Mid-State Homes, Inc., 245 Ark. 866, 435 S.W. 2d 436. It is our conclusion that the chancellor erred in finding that the use of the Rule of 78ths in the instant transaction rendered the note usurious. III It certainly is not at all clear how the credit life insurance became an issue at the trial. If the case had gone to trial only on the pleadings, it might be understandable. But appellants failed to abstract the stipulation entered into by the parties, the pertinent portion of which has been set out earlier in this opinion. The statements referred to in the stipulation simply stated the interest on the two notes during the year 1976 according to the rule of 78ths. Furthermore, the expert witness called by appellees made his calculations including the credit life insurance premium as principal. We likewise agree that the chancellor erred in finding that the credit life insurance rendered this transaction usurious. The trial court found, as a matter of fact, and it is not denied, that Roger Winkle initialled a change in both the $22,000 and the $15,000 notes to include credit life insurance premiums. The chancery court’s holding on the question of usury was based entirely upon the fact that the insurance policy was for $39,596.40 when the amount borrowed was approximately $25,000. The court found that, since there was a violation of Ark. Stat. Ann. § 66-3806 (1) (Repl. 1966), the lender’s 35 percent commission on the amount of the policy in excess of the amount borrowed would render the 10 percent note usurious. The note did reflect an advance of $2,969.79 for credit life insurance. George Lefler, Executive Vice-President of Grand National Bank, testified that the insurance premium was paid to World Service Life Insurance Company, an independent insurance company, for the entire 10-year life of the loan, but that the bank reserved a commission of 33 percent to 35 percent. His testimony is not contradicted. The policy issued by World Service Life Insurance Company of Ft. Worth, Texas, was made an exhibit to Lefler’s testimony. Its effective date was November 5, 1975. It was for decreasing term life insurance on Janie Winkle. Roger Winkle was contingent beneficiary. The initial amount of insurance was $39,596.40, the face amount of the note, which was arrived at by adding the insurance premium and a 10 percent finance charge of $14,626.61 to the principal amount of $22,000; but the amount of insurance decreased each month by $329.97, the amount of the scheduled monthly payment, whether the payment was actually made or not. It is true that the policy was not actually issued by an officer of the bank until the physician’s report on Mrs. Winkle’s physical condition had been delivered to the bank by Roger Winkle, but the effective date was not changed. The testimony of Carolyn Phillips, an assistant vice-president of the bank, was that, if the company refuses a policy, the entire premium is refunded to the customer. Mrs. Winkle testified that she had, prior to the loan closing, requested credit life insurance and it had been issued on her husband. On the date of the closing they told the loan officer that they wanted the insurance on Mrs. Winkle instead. Mrs. Winkle said that she and her husband thought that only a name change would be involved, but that the loan officer then said that she would probably have to take a physical examination. Mrs. Winkle filled out an application, which contained only general questions about her health. She knew at the time that she “was to go back in later on the credit life insurance.” Appellants conceded in the trial court in their response to appellee’s motion for rehearing that the only issue with reference to the credit life insurance was whether excess premiums were charged, and, if so, whether they were excess interest, but that the validity of the policy was not in issue. Appellants also stated that they had no objection to the trial court’s taking judicial notice that it is the customary practice of all credit life insurance companies, in the event of the death of the insured, to pay any amount of the insurance not needed to satisfy the outstanding balance of the note involved to the secondary beneficiary or the estate of the insured. It was appropriate for the court to take judicial notice because the statute requires this. Ark. St at. Ann. § 66-3808 (2) (Repl. 1966). Roger Winkle was the contingent beneficiary named in the policy. George Lefler testified that a rebate would be required if the policy were cancelled. Mrs. Phillips testified that some of the errors in the loan papers were made because the computations had been made before the Winkles requested credit life insurance and this made a recomputation necessary. The note was actually prepared for the signature of Roger Winkle on a statement that he did not want credit life insurance. Janie Winkle signed a statement that she desired credit life insurance. Just above the place where Mrs. Winkle signed, the following appears: “THE PURCHASE OF CREDIT LIFE, ACCIDENT AND DISABILITY INSURANCE IS NOT REQUIRED FOR CREDIT.” Mrs. Phillips said that the credit life policies are automatically accepted by the insurance company, but, if not accepted, the whole premium is refunded to the customer. Appellants do not allege or contend that there was any fraud, duress or compulsion in connection with the credit life insurance. They agreed to purchase the insurance and knew the amount of the premium at the time. In their opening statement they say: *** The loan was signed by the Winkles. Winkles agreed to purchase credit life insurance on Janie Winkle and were informed that no insurance could be written until checking with insurance company as to whether a physical would be required. A disclosure of what the premium would be was placed in the box for agreement to purchase the insurance. A blank application for credit life was filled in by Janie Winkle regarding age, physical condition and just general information. *** The basic tenets in usury cases material to this case remain unchanged. Some of them are: 1. All reasonable expenses incident to a loan which the borrower agrees to pay or which are paid out by the lender for his benefit are properly a part of the loan proceeds or the amount loaned. Harris v. Guaranty Financial Corp., supra; Lyttle v. Mathews Investment Co., 193 Ark. 849, 103 S.W. 2d 47; Brown v. Fretz, supra; Sidway v. Harris, 66 Ark. 387, 50 S.W. 1002; Shattuck v. Byford, 62 Ark. 431, 35 S.W. 1107; Lockhart v. GMAC, 252 Ark. 878, 481 S.W. 2d 350. 2. Insurance premiums paid a third party are proper charges when the borrower agrees to pay them or receives the policy, is not charged an excessive pre mium, and receives the benefit of the insurance. Winston v. Personal Finance Co., 220 Ark. 580, 249 S.W. 2d 315; Smith v. Eason, 223 Ark. 747, 268 S.W. 2d 389; Griffin v. Murdock Acceptance Corp., 227 Ark. 1018, 303 S.W. 2d 242; Universal C.I.T. Credit Corp. v. Lackey, 228 Ark. 101, 305 S.W. 2d 858; Whiddon v. Universal C.I.T. Credit Corp., 227 Ark. 824, 301 S.W. 2d 567; Poole v. Bates, supra; Ragge v. Bryan, supra; Troxel v. Bob Sullivan Chevrolet-Cadillac Co., 248 Ark. 1152, 455 S.W. 2d 667. 3. Credit life insurance premiums fall into the same category as other insurance premiums. Lowrey v. General Contract Corp., 228 Ark. 685, 309 S.W. 2d 736; Universal C.I.T. Credit Corp. v. Lackey, supra. 4. The withholding of sums to meet obligations for insurance premiums with the acquiescence of the borrower does not render the transaction usurious, unless the insurance is a subterfuge. Hartzo v. Wilson, 205 Ark. 965, 171 S.W. 2d 956; Ragge v. Bryan, supra. We have approved the inclusion of credit life premiums as a part of the original indebtedness, even where the lender received a 35 percent commission as agent for the insurance company. In Poole v. Bates, 257 Ark. 764, 520 S.W. 2d 273, we said: The principal contention for reversal is based upon the credit life insurance premium. The premium was $55.94, and appellees placed this insurance with an insurance agency; appellees, however, received 35% of the credit life insurance premium as a commission, this amount being in addition to the other moneys under the contract, i.e., the premium was included in the total prior to determining the monthly amount of payments. Accordingly, interest on the commission received by appellees was called for in the monthly payments, and it is appellant’s contention that appellees were not entitled to receive interest on that portion of the premium constituting a commission, and since the payments under the contract called for a full 10% interest, that instrument is therefore usurious. *** [W]e do not agree that the commission here involved, though, as pointed out in the annotation, a factor to be considered, makes this particular contract usurious. In the first place, this is not a case where the purchaser was compelled to purchase insurance before appellees would finance the purchase of the car; i.e., it was not a charge made for the purpose of allowing them more interest. Rather, it appears that appellant requested this insurance. In the next place, there is no contention that the insurance charge was excessive. In other words, it was a bona fide transaction. The charge for insurance was paid and appellant received the benefit requested. The rebate itself was not illegal, nor is there any reason, since appellant asked for the insurance and received exactly what he requested, why such should be illegal. After all, there could be no difference to appellant in purchasing the insurance through appellees, and purchasing it from some company across the street or elsewhere, i.e., there is no showing that the premium would have been less. So long as there is no element of fraud, nor duress or compulsion upon the borrower to take the insurance from the lender, we see no reason why the automobile agent is not as entitled to represent the insurance company, and accordingly receive a commission, as anyone else. In other words, no unlawful charge or profit is involved. The facts in this case take it outside the reach of those cases in which it has been held that credit life insurance premiums or commissions paid to a lender for insurance are to be considered as interest. The premium was paid by the bank to the credit life insurance company in advance. The bank was contractually bound to furnish credit life insurance. The borrower was not compelled to purchase credit life insurance before the bank would make the loan. The borrower was not fraudulently induced to take the insurance. Appellants requested the insurance. There is no evidence to even hint that any of the parties were not acting in good faith. Appellants received the benefit of the insurance. There is no contention that the insurance premium charged was excessive except for the issue as to the amount of the coverage, and there is no showing that the insurance could have been purchased at a lesser premium. The Winkles had carried credit life insurance on previous loans. The policy was issued effective November 5,1975, the date of the loan. The issue then turns upon the application of Ark. Stat. Ann. § 66-3806 (1) (Repl. 1966). The chancellor found that Ark. Stat. Ann. § 66-3806(1) was violated because “the maximum amount which could have ever been paid under the policy would be something in the neighborhood of $25,000.” That statement does not demonstrate a violation of the statute which provides: ‘ ‘ The amount of credit life insurance shall not exceed the original amount of indebtedness.” The original amount of indebtedness was the face amount of the policy and the note — $39,596.40. If the word “indebtedness” had not been defined in the same act of which § 66-3806 (1) is a part, it might be argued persuasively, but not conclusively, that the chancellor applied the statute properly. The word “indebtedness,” as defined by Ark. Stat. Ann. § 66-3804(5), however, includes “the total amount payable by a debtor to a creditor in connection with a loan or other credit transaction.” The total amount payable by the Winkles on the effective date of the policy to the bank on this credit transaction, if the note had been paid according to its terms, was $39,596.40. By the terms of the note, the Winkles promised “to pay to the order of Grand National Bank (herein called Bank), at its office in Hot Springs, Arkansas, the sum of Thirty-four Thousand Eight Hundred-Eight and 80.100 Dollars, in 120 installments] of $329.97 beginning December 20,1975, and on the same date each month thereafter until paid in full ...” The decree is affirmed on direct appeal and reversed on cross-appeal. The cause is remanded to the trial court for the entry of a decree and for further proceedings consistent with this opinion. George Rose Smith, J., concurs. Hickman, J., concurs in the result. Purtle, J., dissents. The result of adopting the contrary view is illustrated by the chancellor’s finding that the bank’s statement declaring interest accrued on the loan by the bank in 1975 of $481.18 showed that the bank had charged more than 10 percent interest on the $22,000 note in the year 1975. The chancellor made this finding in spite of his finding that the Winkles made no payments on the note in 1975. This was one of the errors in the preparation of the note and in the upper left-hand comer the amount is correctly stated as $39,596.40.

Darrell Hickman, Justice. The only issue raised on appeal is whether a wrongfully discharged policeman may, in addition to his lost salary, recover his attorney’s fees. We find no statutory authority for such a recovery and affirm the trial court’s judgment. Norman Williams, a Little Rock policeman, was fired in October, 1977. The firing was upheld by the Little Rock Civil Service Commission. Williams appealed to the Pulaski County Circuit Court. It found Williams had been wrongfully discharged and ordered him reinstated with back pay, minus his outside earnings received during the period of discharge. Williams was denied recovery of the attorney’s fees he incurred for representation in the matter. It is not disputed the sum was $2,500.00. Williams appeals and asks us to hold that Ark. Stat. Ann. § 19-1605.1 authorizes the recovery of attorney’s fees. It reads in part: ... In the event that it is finally determined that there was a wrongful . . . discharge of any Civil Service Employee, such employee shall be entitled to judgment against the city for whatever loss he may have sustained by reason of. . . discharge . . . taking into consideration any remuneration which such ... employee may have received from other sources pending the final determination of his case. [Emphasis added.] Appellant concedes the general rule is attorney’s fees are not recoverable absent statutory authority. However, he argues the word “loss” in the statute includes attorney’s fees. We disagree that the General Assembly intended for the generic and relative term of “loss” to have such a meaning. We have consistently, for many years, held that attorney’s fees are not recoverable as an element of damages, except as specifically authorized by statute. In Romer v. Leyner, 224 Ark. 884, 277 S.W. 2d 66 (1955) we discussed our previous decisions and the reasons attorney’s fees are not recoverable. They are in the nature of a penalty on litigation. We have not ruled directly on the meaning of “loss” but we did, in a similar case, refer it back to the trial court for a determination of “net damages.” Sanders v. City of Fort Smith, 251 Ark. 494, 473 S.W. 2d 182 (1971). In view of our uniform decisions denying attorney’s fees absent statutory authority, and acknowledging the General Assembly has in several instances specifically authorized attorney’s fees, we cannot read “loss” to include such a recovery. Affirmed. We agree. Harris, C.J., and George Rose Smith and Fogleman, JJ.

John A. Fooleman, Justice. This appeal was taken from an order in an action originally brought by G. I). Nelson, a citizen and taxpayer, against Berry Petroleum Company, Arkansas Bitumuls Company, Lion Oil, Inc., MacMillan Ring-Free Oil Company, Inc. and Bitucote Products Company. We held that Nelson had stated a cause of action against the above-named parties. Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S.W. 2d 46. After remand each of the defendants answered, denying the allegations of Nelson’s complaint and pleading the statute of limitations. The plaintiff taxpayer then filed a motion asking that he be permitted to proceed without cost to him or any other taxpayer and that the State of Arkansas be required to bear the cost of the proceedings. Thereafter, the state and its Highway Commission sought permission to intervene, alleging that this action was necessary in order to protect the interests of the state and its citizens and taxpayers. In response to Nelson’s motion, the state, through its Attorney General and the Highway Commission, expressed willingness to assume the prosecution of the cause, which, they said, would obviate the necessity of further cost being borne by Nelson. Permission to intervene was granted. The intervenors, before filing any other pleading but within the time allowed them for filing their intervention, filed a motion for stay of the proceedings. In this motion, it was alleged that intervenors had- filed suits in the United States District Court for Eastern District of Arkansas against the defendants seeking recovery under the Sherman and Clayton Acts for alleged price fixing and allocation of territory by them. As a basis for the stay, the state asserted that, although the causes of action arose out of the same course of conduct by the defendants, recovery of treble damages, attorneys’ fees and costs and expenses permitted under the federal laws could not be had in the state action. The court was asked to stay all proceedings by any party until disposition has been made of the cases pending in the federal district court, and to relieve the intervenors of further pleading until they were ordered to do so. The trial court denied the motion, but continued the matter and granted intervenors an additional week for filing their intervention. This intervention sought recovery from the defendants for an alleged conspiracy to fix prices for asphaltic materials sold to the Arkansas State Highway Department. Answers "were filed by the defendants. The complaint of intervenors reasserted the grounds of their motion for stay and added an allegation that the United States District Court had greater familiarity with trials of the issues presented so that the issues could be de termined in that court in a more orderly and less expensive manner than would obtain in the state court. The motion lor stay was renewed. After pretrial conferences, the chancery court entered an order on December 5, 3968, denying- the motion for stay, appointing a Special Master and requiring the deposit of $5,000 ($2,500 by intervenors and $2,500 by defendants), from which the fees and expenses of the master would be paid as they accrued. Intervenors then filed another motion for a stay of proceedings and a reconsideration of the court’s action. At a subsequent pretrial conference, the chancellor denied the motion for reconsideration. He specifically denied intervenors’ request for a stay of proceedings either until disposition of the case in federal district court or until November 1968. Appeal was taken by intervenors from both orders. The plaintiff Nelson and all defendants joined in a motion to dismiss the appeal on the ground that the orders were not appealable. Appellants then filed a petition for mandamus, or, in the alternative, for prohibition or certiorari, seeking the vacation of the chancery court’s orders, and asserting that the court had acted in excess of its jurisdiction and had abused its discretion. We agree that the appointment of a Special Master and the requirement of advance deposit by appellants for costs and expenses of the proceeding were in excess of the court’s jurisdiction. We have recently had occasion to review the situations in which an order of a trial court is appealable. See Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605; Wright v. City of Little Rook, 245 Ark. 355, 432 S.W. 2d 488; and Allred v. National Old Line Ins. Co., 245 Ark. 893, 435 S.W. 2d 104. We find no such finality as would permit an appeal of the chancery court’s orders under the standards repeated in those cases. Appellants rely upon the rule that an appeal lies when a distinct and severable branch of a case is finally determined. We do not think that it can be said that any action by the court relates to a distinct or sever-able branch of this case. It seems, on the other hand, that each such action is an integral part of the entire proceeding. We recently held that denial of trial by jury and a limitation of the scope of a hearing before a circuit court were not such determinations as would permit review by appeal before final disposition of the case. See Wright v. City of Little Rock, supra. Each action of the chancery court here is no more a final determination of a severable branch of the case than was the action of the circuit court there. This does not mean, however, that the actions of trial courts are not subject to review by this court under its its supervisory jurisdiction. Article 7, § 4, Constitution of Arkansas. Writs of mandamus, prohibition and certiorari are designed for the appropriate exercise of this jurisdiction, where appellate remedy is unavailable or inadequate. The primary function of the writ of mandamus is to require an inferior court or tribunal to act when it has improperly failed or declined to do so. Satterfield v. Fewell, 202 Ark. 67, 149 S.W. 2d 949; Thompson v. Foote, 199 Ark. 474, 134 S.W. 2d 11; Hammond v. Kirby, 233 Ark. 560, 345 S.W. 2d 910. It is never applied to control the discretion of a trial court or tribunal. Smith v. Sullivan, 190 Ark. 859, 81 S.W. 2d 922; Jackson v. Collins, 193 Ark. 737, 102 S.W. 2d 548; Hardin v. Cassinelli, 204 Ark. 1016, 166 S.W. 2d 258; State ex rel Pilkinton v. Bush, 211 Ark. 28, 198 S.W. 2d 1004; Village Creek Drainage District v. Ivie, 168 Ark. 523, 271 S.W. 4. Nor can it be used to correct an erroneous exercise of discretion. Jackson v. Collins, supra; Mance v. Mundt, 199 Ark. 729, 135 S.W. 2d 848, Mobley v. Scott, 236 Ark. 163, 365 S.W. 2d 122; Dotson v. Ritchie, 211 Ark. 789, 202 S.W. 2d 603; State ex rel v. City of Marianna, 183 Ark. 927, 39 S.W. 2d 301; Jones v. Adkins, 170 Ark. 298, 316, 280 S.W. 389. Edmondson v. Bourland, 179 Ark. 975, 188 S.W. 2d 1020, rolled upon by appellants, where mandamus was granted, is not applicable here. There we said that a refusal by a trial court to permit a defendant to file a motion to set aside the appointment of a guardian ad litem for her, together with the striking of an answer and cross complaint filed for her by attorneys of her own choice, amounted to an arbitrary refusal to proceed with the case. Mandamus has always been an appropriate remedy in such cases. The utilization of the writ of mandamus in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S. Ct. 309, 1 L. Ed. 2d 290, wherein the reference of an antitrust case to a master was corrected, is not authority for such action here. There the federal appellate courts were enforcing the application of their own procedural rules — a factor not involved here. Even so, four members of that court thought the remedy was not appropriate. The fundamental purpose of the writ of prohibition is to prevent a court from exercising jurisdiction not possessed by it- or a power not authorized by law, when there is no other adequate remedy by appeal or otherwise. Robinson v. Merritt, 229 Ark. 204, 314 S.W. 2d 214; Harkey v. Matthews, 243 Ark. 775, 422 S.W. 2d 410. It is not available otherwise to correct erroneous action of a trial court. Bassett v. Bourland, 175 Ark. 271, 299 S.W. 13; St. Paul-Mercury Indemnity Co. v. Taylor, 229 Ark. 187, 313 S.W. 2d 799; Wilson v. Williams, 215 Ark. 576, 221 S.W. 2d 773; Lowery v. Steel, 215 Ark. 240, 219 S.W. 2d 932. It cannot be used as a substitute for appeal or certiorari and is not available to bar proceedings pending in a court if the court has jurisdiction. Schirmer v. Cockrill, 223 Ark. 817, 269 S.W. 2d 300. Certiorari lies to correct proceedings erroneous upon the face of the record when there is no other adequate remedy. North Little Rock Transportation Co. v. Sangster, 210 Ark. 294, 195 S.W. 2d 549; Burgett v. Apperson, 52 Ark. 213, 12 S.W. 559; Martin v. Hargrove, 149 Ark. 383, 232 S.W. 596. It is available in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. McCain v. Collins, 204 Ark. 521, 164 S.W. 2d 448; Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S.W. 1064; see also Baxter v. Brooks, 29 Ark. 173. Certiorari lies where there is a want of jurisdiction or an act in excess of jurisdiction which is apparent on the face of the record. City of Fayetteville v. Baker, 176 Ark. 1030, 5 S.W. 2d 302; Hardin v. Norsworthy, 204 Ark. 943, 165 S.W. 2d 609; Martin v. Hargrove, supra. It is not available to look beyond the face of ■ the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts or review the exercise of a court’s discretionary authority. Hardin v. Norsworthy, supra; Arkansas State Highway Comm. v. Light, 235 Ark. 808, 363 S.W. 2d 134; Hendricks v. Parker, 237 Ark. 656, 375 S.W. 2d 811. When there is a remedy by appeal, a writ of certiorari will not be granted unless there was a want of jurisdiction, or an excess in its exercise, by the court below. Baxter v. Brooks, 29 Ark. 173. The first ground asserted as a basis for this appeal is that the position of the taxpayer in this lawsuit is not in the best interest of the state in light of the litigation pending in the federal courts. In the absence of charges of wrongdoing by state officials, it does seem odd that parties whose positions are as adverse as those of Nelson and the defendants sued by him would make virtually identical contentions on the matters which were before the trial court. Yet, a determination that the taxpaying plaintiff’s action was not in the best interest of the state, on the face of the record only, would be premature. There is no statute governing taxpayer’s actions, so this question can only be determined on a trial of the case on its merits. It cannot be reviewed by us at this time in the exercise of any supervisory jurisdiction. The next point relied upon by appellant is the assertion that the chancellor erred in denying appellant’s motion for a stay. The granting or denial of a stay or continuance is a matter lying within the sound judicial discretion of the trial court. Phillips v. Nowlin, 238 Ark. 480, 382 S.W. 2d 588. It has never been held that the pendency of an action in the federal courts is a ground for a continuance or abatement of an action in our state courts. See Boynton v. Brown, 103 Ark. 513, 145 S.W. 242. If the chancery court was in error through manifest abuse of discretion in refusing the stay, that error is correctable on appeal from a judgment adverse to appellants, at the proper time. Keenan v. Strait, 221 Ark. 83, 252 S.W. 2d 76; Burriss v. Wise & Hind, 2 Ark. 33; Great American Ins. Co. v. Stevens, 178 Ark. 84, 10 S.W. 2d 356. Since the trial court exercised its discretion in a matter clearly within its jurisdiction, its action is not subject to review at this time. It is not clear to us why appellee-plaintiff Nelson prefers a trial in the state court in view of the possible recovery of treble damages in the federal courts. There is no allegation that the duly designated state officials are not pursuing the matter aggressively and in good faith. Yet the courts cannot control the taxpayer’s actions in this matter in the absence of statutory guidlines in this field, and we cannot review the trial court’s action in this regard at this stage of the proceeding. In his first pretrial order, the chancellor appointed a Special Master, and instructed him to prescribe rules for the expeditious and orderly progress of the tasks with which he was charged, and to proceed with hear ing of evidence and ruling upon all matters of fact and law incident thereto. The master was directed, upon completion of the presentation of evidence, to prepare and file his recommended findings of fact and conclusions of law and a proposed decree. In this respect, the trial court was proceeding illegally. Before a master is appointed, the main issue establishing the rights of the parties should be determined so that definite directions can be given to the master for his guidance. Hicks v. Hogan, 36 Ark. 298; Fullenwider v. Bank of Waldo, 101 Ark. 259, 142 S.W. 149. It was pointed out, in Hicks v. Hogan, that the chancellor should hear the cause upon the pleadings and such evidence as may enable him to determine the principles to be applied in adjusting the equities of the parties and then make a reference to a master for such special inquiries or statements of accounts as may aid the court in making a definite decree. The decision in La Buy v. Howes Leather Co. 352 U.S. 249, 77 Sup. Ct. 309, 1 L. Ed. 2d 290 (1957) involved the application of the very same principle to an antitrust ease which included charges of monopoly and price fixing under the Sherman Act. In that opinion, the United States Supreme Court stated that’the use of masters was to aid judges in the performance of sjjecific judicial duties as they arise and not to displace the court. They held that the appointment of a master and a reference at the inception of the case to take evidence and to report the same to the court Avith his findings of fact and conclusions of law Avas an action beyond the court’s powers. There, as here, an effort avus made to support the reference by reason of anticipation of a lengthy trial, complexity of the issues and congestion of the court’s calendar. We agree with the Supreme Court of the United States that these reasons do not constitute sufficient grounds for the virtual displacement of the court by a Special Master. While we can conceive of situations in Avliieh a reference of particular matters may be made to a master during the course of litigation, a reference as broad as the one involved here is clearly in excess of the court’s jurisdiction and in that respect the court proceeded without authority of law. Jones v. Adkins, 170 Ark. 298, 280 S.W. 389; relied upon by appellees, is not contrary to this view. The only issue there was an accounting, for which purpose we have always recognized the power of the court to appoint a master. If this case should reach the point where the only issue remaining is a matter of accounting, the appointment of a master would be appropriate. "We have not overlooked the argument of appellees that there was an agreement to the appointment of a master. The record does disclose a colloquy among the court and counsel for the respective parties at a pretrial conference on October 16, 1968, at which all seem to have agreed that a master should be appointed in the case. At that time appellants’ complaint had not been filed. There was no suggestion, until the order of December 5 was entered, that the reference to the master would be as extensive as set out in the court’s order. An objection to the appointment was made by appellants at a pretrial conference on November 17. It was repeated in their motion for reconsideration. Appellees also argue that the chancellor’s statements after the entry of the order appointing the master indicate that he did not intend to refer the whole case, but would maintain control over the activities of the master. We can only regard the content of the court’s order in reviewing the matter on certiorari. We agree with the chancellor’s statement on hearing the motion for reconsideration that the work of the master can be postponed until such times as the issues are developed to a point where a reference is proper and desirable. We have previously recognized the state’s immunity from costs when acting in a governmental capacity in an action not brought by it. McCastlain v. Oklahoma Gas & Electric, 243 Ark. 506, 420 S.W. 2d 893. We did recognize that the rule is altered when there is specific statutory authority for payment of costs by the state; however, Ark. Stat. Ann. § 27-2307 provides that the state shall not be required to give security for costs. Master’s fees and expenses are costs in the sense in which the word is used in this statute. See Jones v. Adkins, 170 Ark. 298, 280 S.W. 389. The chancery court’s order in this respect was unauthorized and in excess of its jurisdiction. In the respects in which we have found that the trial court was proceeding illegally and in excess of its jurisdiction, treating the proceedings here to he upon the application for certiorari, the portions of the court’s order relating to these matters are quashed. Petitions for mandamus and prohibition are denied. As to all other matters the appeal is dismissed as premature. These suits were filed November 23, 1966, which was subsequent to the filing of this action by Nelson, but before the original appeal was submitted in this court. For a discussion of the use of the writ in Arkansas, see Bryant, “Certiorari in Arkansas” 17 Ark. L. R. 163. Although this court has been very liberal in construing and applying Article XVI, §13, of our constitution permitting taxpayers’ action, we cannot approve any requirement that the state be called upon to bear the expense of preparation and trial of these actions.

GtbiffiN Smith, C. J. Appellant sued on a policy of insurance -wMcli entitled Mm to $25 per week if stated conditions concurred. Coverage was against loss “resulting directly and independently of any and all other causes from sickness or diseases . . . which sickness or disease shall wholly disable the insured and necessitate treatment by a legally qualified physician.” It was alleged that the plaintiff was totally disabled for nine days from March 20, 1936. Also, that he was “not necessarily confined to his home, but was totally disabled and prevented from performing many substantial duties pertaining to his occupation from March 29, 1936, for a period of 50 weeks and five days.” The court directed a verdict for $32.14, upon wMch judgment was rendered. This amount had been tendered by the insurance company before suit. The direction precluded recovery for the 50 weeks and five days. Testimony of Dr. Cunningham was that Lyle came to him in February, 1936; that he had nephritis, with ■blood pressure from 170 to 200 and “at the beginning the patient suffered quite a lot from rheumatism. ’ ’ Lyle was advised to have his teeth extracted, which he did. Sometimes the suffering from rheumatism was severe; at other times the pain was not so great. Lyle was told to stay in bed several hours during each day. This the patient did for a while, but finally broke the rule. It was Dr. Cunningham’s opinion that Lyle’s acts in working every day, without taking the prescribed rest, were detrimental to his health. Appellant testified that following confinement to his bed from March 20 to 29, his condition for a year was such that he was not able to work . . . “but I had to work, except at times I was out and could not work at all.” On cross-examination appellant testified that for ten years he had been a grocery salesman, going from town to town seeing customers. He said: “I am working on a salary of $275 a month and furnish my own car and expenses ... I am doing part of the same work I did before my sickness, but not all of it. The territory has been cut a little — some few accounts have been cut off of my territory. I go to Jefferson, Lincoln, and Desha counties, and worked Lonoke county near England for a while. The change in my work is that I do not go to Lonoke county, and there are some of the accounts in my other territory that I do not call on any more. I leave home around eight o ’clock in the morning or a little after and go down to Cook & Sons’ [place of business] and get instructions about prices. I travel my territory alone. I usually call on three or four little towns a day and get home about five or six o ’clock. It is the same line of work I did before March, 1936. My disease has disabled me from performing my work as I should.” “Q. Has your work for Cook & Sons during this period been satisfactory to them? A. I have an idea it has.” Two decisions of this court are relied upon by appellant as authority for reversal of the directed verdict. We do not think the facts in those cases and in the instant case are similar. In the Aetna Case the plaintiff Martin was afflicted with diabetes. He was a contractor, and prior to the illness complained of ... - “had performed not only supervision and direction of his contracting work, but had made a regular hand in the execution of his business, working from 12 to 15 hours daily. ’ ’ Subsequent to contracting diabetes . . . “he was able to give but little attention to his business. ’ ’ It was further shown that Martin’s business, due to neglect occasioned by his illness, had greatly depreciated in value. Testimony in the Sams Case was that the plaintiff was suffering from a dilated heart, arterio-sclerosis, and other maladies. A physician testified: “A man in Sam’s, condition can’t meet work that requires labor of any kind.” A neighbor testified: “I never saw Sams [who was a farmer] at work on his farm; he would just be out looking around.” In Aetna Life Insurance Co. v. Person, 188 Ark. 864, 67 S. W. 2d 1007, we said: “The general object of contracts similar to that involved in this case is to give to •the insured indemnity for the loss of time because of a disability which prevents the prosecution of his business, and the evident purpose is to provide a means of living during the time the insured is unable to engage in any gainful occupation. As we have stated, disability exists within the meaning of the contract when the assured is able to accomplish only some of the duties essential to the prosecution of his business, and where he is able to perform only occasional acts.” The question is, Was appellant wholly disabled? We do not find any evidence to show that he was. By his own admissions he continued to work, and he drew the same-salary throughout the period of so-called disability. It is not in the record that his employers complained. On the contrary, appellant “had an idea” they were satisfied with his services. The word “disability” is synonymous with incapacity. As used in the workmen’s compensation statutes of most of the states, disability means loss of earning power. The evidence shows that appellant’s work was attended by physical inconvenience, considerable danger of aggravating the condition, and that there was physical pain in connection with the rheumatism of which he complained. Yet, the fact remains that he continued to work and that his earning power was not decreased. In these circumstances the trial judge did not err in instructing a verdict. Affirmed. Plaintiff’s age was 45 years; his weight, 203 pounds; his height, six feet. Prior to the sickness complained of, plaintiff’s weight had been 260 pounds. In detail, appellant testified: “There was never a time I didn’t have pain somewhere about my body — and it is still that way now. My hack hurts and my neck hurts all the time. I didn’t feel like working. I was nervous and just couldn’t — just did not feel like working like our men worked. ... I did the best I could to rest three hours a day as instructed by the doctor. I wouldn’t leave home until late in the morning and get hack early in the afternoon and lie down and rest. I still do that a part of the time, but' I am just not in position to rest every day like I should, because I have SO’ much work to do in order to get my pay; I just have to do it, whether I feeli like it or not. ... At one time Dr. Cunningham told me to go to Memphis and go through the clinic, and I went there and stayed two or three days. I also went to Hot Springs and consulted Dr. Wade. . . . I still take medicine all the time. . . . Dr. Wade told me the only thing in the world that would do me any good was to rest and stay on a diet. I have stayed on that diet pretty well. . . .” Aetna Life Insurance Company v. Martin, 192 Ark. 860, 96 S. W. 2d 327; The Sovereign Camp W. O. W. v. Sams, 194 Ark. 557, 108 S. W. 2d 1089. Other testimony on behalf of the appellee Sams was: “He should not do any work requiring the least exertion.” — Dr. MeC'ollum. “He can’t hold out to do anything very long. At times he was helping haul hay, and while I was pitching it to him he would give out. Would haul a load of hay and the next day he would help me plow and would have to quit before night because he gave out. He has been in bed practically ever since. He has tried' to help on the farm within the last thirty days, but he.can’t hold out.” — J. E. Freeman. Ballentine’s Law Dictionary, p. 378; 28 R. C. L. 819.

John A. Fogleman, Chief Justice. Appellee Donald G. Robinson brought this action against appellant Carl Herrick and Herrick’s son and daughter-in-law, David and Beverly, seeking to recover $9,200, as the balance he alleged to be due him on the purchase price for the inventory and business name of Park Hill Custom Framing and Molding Company, which he had operated in North Little Rock. Appellant and the other defendants defended on the ground that their agreement to purchase was tentative and conditional, and that they had been induced to enter into the agreement by material misrepresentations and concealment of facts by Robinson. They alleged that they had rescinded the contract. Carl Herrick also counterclaimed seeking to recover the amounts he had paid to Robinson on the purchase price, and money he had put into the business operation, the dismissal of Robinson’s complaint and “all other equitable relief.” The allegations pertaining to the fraudulent representations were that Robinson had falsely represented that the business was in good financial condition, that not much was owed on it and the business obligations could and would easily be taken care of from the net proceeds of a pending sale of his home, that the average gross monthly income of the business was $3,500 to $4,000, that the stock and equipment were in good condition and saleable, that large orders could be expected, and that all accounts receivable were good. Appellant alleged that his defenses were equitable and that the case should be transferred to equity. The counterclaim contained allegations that, as an inducement to the Herricks to purchase the business, its assets, good will and trade name, Robinson misrepresented and exaggerated the amount and condition of the assets, sales volume, earning ability and financial condition of the business and concealed the actual condition of the business as to accounts payable, lienable obligations and certain accounts receivable. Appellant alleged that these misrepresentations and concealments were made with the intent that they be relied upon by the Herricks, and that they did so, to their detriment and damage. Appellant again alleged that he had no full, plain, adequate and complete remedy at law and that, his remedies being equitable, the case should be transferred to equity. Appellee denied appellant’s right to rescission and pleaded estoppel and laches as defenses to the counterclaim. After having denied appellant’s motion to transfer the case to equity on September 25, 1978, the case was tried to the court without a jury and the circuit judge, after hearing the evidence, rendered a written opinion on December 7, 1978. In it he made many findings of fact, among which the following are significant on this appeal: The Herricks and Robinson met on a Sunday afternoon at the place of business involved, discussed a purchase price of $35,000, and agreed upon a negotiated price of $25,000 and the purchaser, through David and Beverly Herrick, took possession on the following day, Monday, November 2, 1976. Carl Herrick notified Robinson that the transaction was being terminated by a letter dated March 14, 1977. The amount of the balance for which Robinson sued was arrived at by giving the Herricks credit for $3,500 Carl Herrick paid him and $12,452.69, as the net proceeds from the sale of the assets of the business at an auction. In spite of alleged misrepresentations, the Herricks took an inventory and any shortcomings were readily available to the defendants. Any and all liens, even if not disclosed to the defendants before the purchase, were known to appellant before the defendants quit the business and were in fact satisfied in either December, 1976 or January, 1977, and, as additional security to purchaser, Robinson caused a receiver to be appointed, whose duty it was to receive the balance of $21,500 on the purchase price from the defendants and immediately satisfy claims of creditors which would affect the business. Appellant became discouraged and even frustrated, because of the inability of David and Beverly to settle differences with Robinson on such matters as the amount of the purchase price, and because of the belated feeling that the family business venture was not so good and a costly mistake had been made. The case could have very easily been transferred to chancery court, but appellant’s motion to transfer was denied without objection, once it was agreed trial would be without a jury, the attorneys for both parties realizing that some equitable principles would necessarily be applied. There was justification for allowing appellant an additional credit of $2,000 for bills paid, accounts receivable and personal property not in working order. After allowing this credit, Robinson was entitled to judgment for $7,113, but no interest, because the parties failed to fix a day certain for payment of the balance of the purchase price. Before judgment was entered, appellant filed a motion for a new trial, on the ground that the judgment was not sustained by sufficient evidence and was contrary to the law and the evidence. Appellant pointed out the following examples: 1. The finding that any and all liens were satisfied by January, 1977, was erroneous because a valid lien of Twin City Bank, based upon a security agreement covering all the assets sold, was not satisfied until a balance of $ 10,500 was paid from the proceeds of an auction sale in a chancery court receivership held on August 10, 1977, after the Herricks had surrendered possession of the business. 2. Tax liens, especially one in favor of the federal internal revenue service, were still unpaid at the time of the trial and appellant did not know of the internal revenue service lien until long after the down payment on the purchase price was made and possession of the business taken. 3. The $21,500 balance on the purchase price would not have been sufficient to satisfy all business debts and liens. Appellant also stated that both the above liens constituted a breach of the seller’s warranty under Ark. Stat. Ann. § 85-2-312 (Add. 1961) and constituted a ground for cancellation of the contract. The judgment entered contained additional findings of fact. Among them were these: 1. The contract was between Robinson and appellant Carl Herrick and, in certain respects, David and Beverly acted in behalf of Carl. 2. The balance of the purchase price, remaining after down payments totalling $3,500 were made, was to be paid within a reasonable time. 3. By the terms of the contract, Robinson was not only to deliver the inventory and business premises, but also to assure the purchaser of clear title, in connection with which he was to compile a list of creditors of the business, and the purchaser was to make a complete inventory of the business. 4. Since the parties, by their actions, made the Bulk Sales Act inapplicable, the state court receivership was necessary to accomplish a conveyance free of claims of creditors. 5. An inventory was promptly taken in November, 1976, and defendants were aware they were purchasing the business at a “distress price” and that the inventory was not in first class condition. 6. By failing to act promptly, defendants waived the deficiency in the inventory and the attempt of appellant to rescind the contract was ineffective because it was not timely. 7. Appellant was entitled to credit for $508.74 for the proceeds of accounts payable [receivable] incorrectly credited to Robinson and to $1,491.26 credit for deficiencies in the equipment sold. After the judgment was entered, appellant filed an amendment to his motion for a new trial. In it he alleged that the federal internal revenue service had on January 3, 1979, served a “Notice of Levy” on him for delinquent taxes amounting to $6,705.31. By this notice, he was notified that demand for payment had been made on Robinson, but that Robinson had neglected or refused to pay this amount. The levy was upon “all property and rights to property, monies, and credits” in appellant’s possession belonging to Robinson and all sums of money or other obligations owing by appellant to Robinson, or on which there was a lien under Chapter 64, Internal Revenue Code. It included a demand upon appellant for the amount necessary to satisfy this tax liability or for such lesser sum as appellant might be indebted to Robinson. The levy indicated that it was for the unpaid balance and statutory additions owed by Robinson for income taxes and social security taxes withheld for tax periods ending March 31, June 30, and September 30, 1976. Appellant’s first point for reversal is stated thusly: I TRIAL COURT ERRED (A) IN DISMISSING COUNTERCLAIM OF CARL HERRICK AND GRANTING JUDGMENT TO PLAINTIFF, AND (B) IN FAILING TO ACT UPON AND GRANT MOTION FOR NEW TRIAL, BECAUSE OF EFFECT OF: A & B. 1. THE UNDISPUTED EVIDENCE, WHICH SHOWS THE EVIDENCE INSUFFICIENT TO SUPPORT THE JUDGMENT. 2. APPELLEE-SELLER’S MISREPRESENTATIONS AND CONCEALMENTS RELIED AND ACTED ON, AND FAILURE TO COMPLY WITH UN DERST AN DIN G AN D MAKE B USINESS CONFORM, IN GENERAL. 3.THE UNDISCLOSED INTERNAL REV ENUE AND SALES TAX LIENS. 4. THE UNDISCLOSED TWIN CITY BANK LIEN. 5. THE FAILURE OF SELLER TO COMPLY WITH BULK SALES PROVISIONS. 6. THE RECEIVERSHIP PROCEEDINGS TO SELL TO APPELLANT’S SON AND DAUGHTER-IN-LAW, AND INSOLVENCY OF THE BUSINESS. 7. LACK OF MEETING OF MINDS SUFFICIENT FOR CONTRACT. ALSO 8. IF THERE WAS CONTRACT AS TO APPELLANT: (A) THERE WAS TOTAL FAILURE OF CONSIDERATION; (B) APPELLEE ABANDONED IT. 9.TRIAL COURT’S FAILURE TO TRANSFER TO EQUITY WAS ERROR. Appellant argues I (A) and (B) jointly. We will treat the stated subheadings as noted. 1, 2, 3 and 4 Appellant argues that the undisputed documentary evidence and the undisputed unbiased testimony of the Twin City Bank loan officer negate the possibility of the evidence on behalf of appellee rising to the dignity of substantial evidence and show “overwhelmingly” that appellant was entitled to recover. Appellant points out that the inventory was to be according to that written on some yellow sheets of paper by Robinson, and that Robinson admitted that he had represented the value of inventory at $62,000 and that the Herricks were buying the business on the basis of this representation. The inventory sheets disappeared shortly after the Herricks took possession, probably while Robinson was still living in the building in which the business was conducted. The same inventory sheets, or most of them, were in Robinson’s possession and produced by him at the time of the trial. Robinson testified that this inventory was made about a month and a half prior to the sale. No list of creditors was delivered to the Herricks until February 8,1977, when it was delivered to appellant’s attorney after that attorney had written Robinson about the matter on February 3. A creditors’ list was not even prepared until the last part of December and it was used by Robinson in a receivership proceeding instituted by him on January 20, 1977. After the auction sale in the receivership proceeding, $10,500 of the net proceeds of $12,387 was applied to Robinson’s indebtedness to Twin City Bank. Robinson admitted that in a balance sheet he had prepared, he had included his dwelling house, with an accompanying statement that it had been sold for $68,500 and that the proceeds would be sufficient to pay all notes payable. The house was actually sold for the indicated purchase price, but the proceeds were not sufficient to pay Twin City Bank. This balance sheet showed fixed assets of $147,650.94 and liabilities of $78,078.50. Robinson admitted that he could have represented that his lease on the building in which the business was located was transferrable, but he would not have known that to be a fact. He also admitted that he could have told the Herricks that he would personally attend to having the lease transferred. Robinson could not recall telling the Herricks the names of his creditors, but said that he told them that the proceeds of the sale of the business would go toward retirement of his debts, and he would receive nothing. He admitted having represented that the business was “an ongoing business concern’ ’ and that it was a good viable business that could be profitable if operated properly, but that he had later admitted that the business was, in truth and fact, a sick one. He did not tell the Herricks of his indebtedness to Twin City Bank secured by a lien on his dwelling house and the business inventory and fixtures. He did not advise the Herricks of the actual and potential tax liens. Without detailing the testimony further, there is indeed overwhelming evidence that appellant was induced to enter into the agreement with Robinson by misrepresentation and concealment that constituted fraud, either actual or constructive. Parker v. Johnston, 244 Ark. 355, 426 S.W. 2d 155; Lane v. Rachel, 239 Ark. 400, 389 S.W. 2d 621. Cf. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S.W. 2d 490; Farmers Cooperative Ass’n. v. Garrison, 248 Ark. 948, 454 S.W. 644. Appellant had the right to, and did, elect the remedy of rescission on the ground of fraud. Appellant’s defense and counterclaim were based upon the premise that he had rescinded the contract. For a rescission to be effective, however, it must be timely. One who desires to rescind upon the ground of fraud or deceit must, as soon as he discovers the truth, announce his purpose at once, adhere to it, and act with reasonable diligence, so that all parties may be restored to their original position as nearly as possible; if he continues to treat the property involved in the transaction as his own or conducts himself with reference to the transaction as though it were still subsisting and binding, he will be held to have waived the objection and will be as conclusively bound by the contract as if the fraud had not occurred. First National Bank v. Coffin, 184 Ark. 396, 42 S.W. 2d 402; Ratliff v. Bank of New Orleans & Trust Co., 266 Ark. 492, 586 S.W. 2d 237 (1979); McCormick v. Daggett, 162 Ark. 16, 257 S.W. 358; 13 Am. Jur. 2d 530 (Cancellation of Instruments), § 44. Furthermore, as a condition precedent to an effective rescission, the party rescinding must restore, or offer to restore, the opposite party to his former position. Davis v. Tarwater, 15 Ark. 286; Bellows v. Cheek, 20 Ark. 424; Stanford v. Smith, 163 Ark. 583, 260 S.W. 435. See also, United States v. Arkansas Mills, 216 F. 2d 241 (8 Cir., 1954). There is substantial evidence to support the trial court’s finding that appellant had failed to act promptly and that the attempt of appellant to rescind the contract in March, 1977, was ineffective because it was not timely. Robinson testified that the Herricks took a physical inventory of the business during the two week period following their taking possession. Although the Herricks testified that this inventory was not complete until the first week in December, it is clear that they were aware of substantial shortages even earlier, and certainly knew that the value was much less than $62,000. They had confronted Robinson with the fact that there was a great deficiency in late December or early January. The younger Herricks had some previous knowledge concerning the business. David Herrick had worked there for three years ending a year or year and a half prior to the sale, and had been familiar with all aspects of the business except for bookkeeping. Beverly Herrick also had worked for Robinson at one time and she knew, at the time of the transaction, that there had been some deterioration of the business and some of its inventory. Possession of the place of business and its physical inventory were not surrendered to Robinson until June or July, more than seven months after the Her-ricks took possession. Possession was surrendered to Robinson when the owner of the property asked Herrick to vacate the building. Robinson received notice of this from the landlord. At the time of the negotiations, which took place at the place of business, the electricity had been turned off. Robinson testified that he had then told the Herricks that he had been unable to pay the bill for electricity. Robinson never gave the Herricks a copy of his lease on the building. The Herricks did not actually demand the list of creditors until February, even though it appears that Robinson had promised to deliver a list of creditors and accounts receivable not later than the first week in January, 1977, three months after the Herricks had taken possession. It was more than one month thereafter that appellant attempted to rescind the contract. Robinson testified that he told the Herricks when the down payment was made that he was using that money to pay electrical and telephone bills and other such bills in order that they could continue to operate the business. There was evidence that the Herricks were fully informed of the extent of the Twin City Bank debt during the month of November. It is clear that they knew of the balance due the bank in early December, after a part of the proceeds of the sale of Robinson’s house had been applied to that debt. It certainly was clear at that time that the proceeds of the sale of the house did not pay all of Robinson’s notes payable. By November 24, appellant knew that Robinson was delinquent in remitting sales taxes and furnished money for the payment of delinquencies in order to obtain the necessary sales tax permit, but the retailer’s permit was “put on hold” because of additional delinquencies. Beverly Herrick learned of the internal revenue service lien in November or December. When the Herricks sent payments to suppliers for items they had ordered, they were credited to Robinson’s past due accounts and some of these suppliers put limitations on purchases and others demanded cash payments. As a consequence, the Herricks had trouble obtaining supplies. Appellant’s only excuse for waiting until March 14 to rescind was that for weeks and months the Herricks had repeatedly asked for and expected a list of creditors and that they felt that, if it was forthcoming, they could go ahead and had hoped the matter could be worked out. Since rescission requires prompt action after the discovery of fraud, the question of timeliness of the attempted rescission was one of fact. Kilgo v. Continental Casualty Co., 140 Ark. 336, 215 S.W. 689; Siegel, King & Co. v. Penny & Baldwin, 176 Ark. 336, 215 S.W. 2d 1082; Cross v. Rial, 227 Ark. 1124, 305 S.W. 2d 129; Newton National Bank v. Newbegin, 74 F. 135 (8 Cir., 1896); Annot. 72 ALR 726, 752. It was resolved against appellant on the basis of substantial evidence. Appellant invokes authorities relating to actions for breach of warranty, but they are inapplicable because appellant elected to rescind rather than to seek to recover for breach of warranty. The remedies are not consistent, because rescission is based upon disaffirmance of the contract and recovery for breach requires its affirmance. Cleveland v. Biggers, 163 Ark. 377, 260 S.W. 432; Lane v. Rachel, 239 Ark. 400, 389 S.W. 2d 621; Kotz v. Rush, 218 Ark. 692, 238 S.W. 2d 634; Yeates v. Pryor, 11 Ark. 58. Appellant also relies upon Ark. Stat. Ann. § 85-2-608 (Add. 1961) governing revocation of acceptance of goods. Even if applicable, the language of the statute itself requires that revocation occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in the condition of the goods which is not caused by their own defects. The reasonableness of the time is ordinarily a question of fact for the factfinder. Dopieralla v. Arkansas Louisiana Gas Co., 255 Ark. 150, 499 S.W. 2d 610; Gramling v. Baltz, 253 Ark. 361, 485 S.W. 2d 183. We do not reverse the factfinder’s answer to the question if, as here, substantial supporting evidence exists. Frontier Mobile Homes v. Trigleth, 256 Ark. 101, 505 S.W. 2d 516. As appellee points out, there has never been an effective tender to Robinson of the assets purchased by appellant or an offer to restore Robinson to his position as it existed at the time of the agreement. But a restoration must be possible. Desha v. Robinson, 17 Ark. 228. A contract cannot be rescinded, except by mutual consent, where the circumstances have been so altered by part execution, that the parties cannot be put in statu quo. Bellows v. Cheek, 20 Ark. 424. Appellant relies on the statement in his letter of March 14, that he offered back, as far as he was concerned, the said business operation. Appellant put David and Beverly in possession of the business. Leaving them in possession was hardly a restoration to Robinson, particularly after they had operated the business from November 1 until May 31, selling from the inventory and purchasing supplies. The record, as abstracted, gave absolutely no basis for the court to restore Robinson to his former position. Appellant made no mention of restoration or offer of restoration in his answer or counterclaim, but sought to recover not only his down payment of $3,500 but also $2,500, which he advanced for the operation of the business. This relief was totally inconsistent with an action based on rescission, but was consistent with an action at law for damages. 5 Appellant is in no position to complain of appellee’s failure to comply with Ark. Stat. Ann. § 85-6-101 et seq (Add. 1961) commonly known as the Bulk Sales Act. These provisions are primarily for the protection of the creditors of the seller and compliance with the Act is not compulsory, insofar as the seller is concerned, unless compliance is required by the buyer. There is no evidence that appellant required compliance with this statute or that compliance by the seller was a term of the agreement. Non-compliance was not, in this case, a ground for rescission. 6 We have been unable to determine the materiality of the chancery court receivership to the present litigation. If it is relied upon as a ground for rescission, it is immaterial for we have concluded that the right to rescind was beyond question. 7 Appellant’s argument on this point is that the contract was conditional, that the conditions were a satisfactory inventory check, furnishing of credit information, and deciding how the purchase price was to be paid, and that, as a result, there was no meeting of the minds. It seems odd that one would seek to rescind a contract that did not exist. Although appellant alleged in his pleadings that the agreement was “a tentative and conditional oral understanding,” there was no allegation that there was no meeting of the minds. We do not agree with appellant that the purchase price remained unsettled or that subsequent agreements on the part of Robinson to make adjustments because of discrepancies discovered show that there was no meeting of the minds at the time the contract agreement was made. Actually appellant alleged that the balance of the purchase price was to be paid “later,” after Robinson had furnished information as to the indebtedness and financial condition of the business and a mutually acceptable written inventory and itemization of stock, supplies, furniture, fixtures, and equipment and other assets and personal property. Robinson testified that there was an agreement entered into between the parties, and that, while no specific time was fixed for payment of the balance of the purchase price, it was to be paid within a reasonable time after financing had been arranged by the buyers. Appellant testified that at the time of the meeting concerning the sale and purchase, there was an agreement that a week to ten days was reasonable to work out the balance of the financing. To say the least, there was substantial evidence to justify the circuit court’s finding that there was a contract and that the balance of the purchase price was to be paid within a reasonable time. 8 Appellant contends that there was a total failure of consideration in this case, because the property was sold to him with a warranty against incumbrances but was later sold for debts which were liens against it at the time of the sale. Not all property involved here was sold to satisfy liens. Part of it was sold by the Herricks while they were operating the business. The receivership sale was made some five months after appellant gave notice of rescission, so that fact gave no grounds for rescission. Failure of consideration was not mentioned in appellant’s pleadings and is raised for the first time on appeal. Appellant also says that Robinson abandoned the contract by dealing with David and Beverly Herrick in attempting to negotiate a sale to them. A part of the acts relied upon occurred after appellant’s notice of rescission, so they could hardly constitute an abandonment of the contract by Robinson. There was substantial evidence to justify the trial court’s finding that the contract was with appellant, but that David and Beverly acted in his behalf in some respects. Appellant alleged that the purchase of the business was to be primarily for the benefit of David and Beverly. Appellant testified that David and Beverly signed the checks on the money he put into the business, including the one for the $2,500 down payment. They operated the business after they took possession. They were responsible for checking the inventory. Appellant said he was not even present when the final price of $25,000 was agreed upon by David, Beverly and Robinson. Beverly talked to Robinson about inventory discrepancies. The dealings between Robinson and David and Beverly prior to appellant’s attempted rescission do not clearly show an abandonment of the contract by Robinson. Abandonment of the contract was not asserted as a defense in appellant’s answer. This issue also seems to have been raised for the first time on appeal. 9 The motion of appellant to transfer the cause to equity was denied on the basis of the pleadings. After having heard the evidence in the case, the circuit judge rendered a memorandum opinion stating that the case could very easily have been transferred to chancery, but that the motion to transfer was denied without objection, once it was agreed that the trial would be without a jury. The record does not reveal that the transfer to equity was waived, even though there must have been an agreement that the case be tried without a jury. Rescission is a remedy cognizable both at law and in equity. Philpott v. Superior Court of Los Angeles County, 1 Cal. 2d 512, 36 P. 2d 635, 95 ALR 990; Annot. 95 ALR 1000. See also, 17 A CJS 504, Contracts, § 413. A suit for rescission can be brought in equity only if relief cannot be obtained in a court of law. Philpott v. Superior Court of Los Angeles County, supra; 17 Am. Jur. 2d 955, Contracts, § 485. If money alone has been paid by a rescinding party, the law implies a promise by the other party to repay it and this implied promise is the basis for the common law action for money had and received. Bellows v. Cheek, supra; Lafferty v. Day, 7 Ark. 258; Desha v. Robinson, supra; Philpott v. Superior Court of Los Angeles County, supra; 17 Am. Jur. 2d 955, Contracts, § 485. It is error to deny a transfer to equity or the motion of a defendant raising an equitable defense only when that defense is exclusively cognizable in equity. Daniel v. Garner, 71 Ark. 484, 76 S.W. 1063; Childs v. Magnolia Petroleum Co., 191 Ark. 83, 83 S.W. 2d 547. On the face of the pleadings there was nothing to indicate that appellant’s defense was cognizable only in equity or that his remedy at law was not adequate. There was no instrument to be cancelled or any other basis for relief except for the question of appellant’s right to recover the part of the purchase price he paid. Consequently, there was no error in the denial of the motion to transfer. I C C. HONORABLE TRIAL COURT’S DECISION IS IN ERROR BASED ON CASE AS A WHOLE. Appellant points out that there is clear factual error in the trial judge’s statement in his memorandum opinion that any and all liens were satisfied in December, 1976 or January, 1977. We agree that this is a statement which is not supported by the record. We also think that it is immaterial in the view we have taken of the case as to the right of rescission. II SUPREME COURT SHOULD REVERSE AND, THIS NOT HAVING BEEN JURY TRIAL, RENDER FINAL DECISIONS OR SEPARATE CAUSES FOR FINAL DECISION AND/OR REMAND. We do not fully understand appellant’s argument. He contends that appellant was clearly entitled to recover and to have the claim against him dismissed, so he asks that we reverse the judgment against him and either render judgment for him or remand the case for the entry of such judgment in his favor as the evidence warrants; or, in the alternative, reverse, dismiss the judgment in favor of appellee and remand appellant’s counterclaim. Since there was substantial evidence that appellant’s attempted rescission was not timely, we need not consider this point. The judgment is affirmed. Hickman and Purtle, JJ., dissent. Supplemental Opinion on Denial of Rehearing delivered March 31, 1980 John A. Fogleman, Chief Justice. Some of the arguments advanced by appellant on his petition for rehearing are such that we deem it appropriate to issue this supplemental opinion in denying the petition. For the most part, we will not consider arguments which are mere repetition of those already considered by the court. Rule 20, Rules of Supreme Court and Court of Appeals, Ark. Stat. Ann., Vol. 3A (Repl. 1979). In his petition for rehearing appellant asserts that there was error in the finding in the original opinion that his attempted rescission was not timely. We did not so find. We found that there was substantial evidence to support the trial court’s finding that it was not timely. Appellant argues, however, that, in making that finding, we should disregard the testimony of Robinson, because his conduct was fraudulent and because little weight should be given statements of a witness which are vague on details he should know and which are manifestly wrong on others. The credibility of Robinson, and the weight to be given his testimony, were matters for determination by the trial court. We are not at liberty to disregard any testimony to which the trial court has accorded some weight. Furthermore, our finding that there was substantial evidence to support the trial court’s finding in this respect was not based entirely on the testimony of Robinson. As a part of his argument on rehearing, appellant again asserts that his son and daughter-in-law were in possession of the business by arrangement with appellee and not through appellant. The trial court specifically found that the purchaser, Carl Herrick, took possession through his children and that possession was retained until June 4,1977. The trial court also found that, in some respects, David and Beverly Herrick acted in behalf of Carl Herrick in taking possession. We fully understand that appellant took the position in the trial court that David and Beverly were put in possession by appellee and that appellant had nothing to do with their remaining in possession. But when the evidence is viewed, and all reasonable inferences drawn, most favorably to appellee, we certainly cannot say that there was no substantial evidence to support the trial court’s findings. Appellant argues that he was relieved of tender of restoration because there was no evidence that appellee would accept the business back and the evidence indicates clearly that he would not have. He relies upon Adams v. Berg, 199 Ark. 1096, 137 S.W. 2d 912 and Galloway v. Russ, 175 Ark. 659, 300 S.W. 390. Neither case is applicable here. In Adams, the plaintiff sought cancellation of an oil and gas lease and the recovery of the purchase money paid by him. It was contended that the plaintiff had failed to offer to return the interest in the lease conveyed to him. We held that this was unnecessary since the cancellation would accomplish that very purpose and thus amounted to an offer to reconvey. In Galloway the property involved was a refrigerating machine. The buyers promptly informed the seller that they would not accept it, and were informed by the sellers that they thought they could hold the buyers under the contract. The machine was never installed, as the dispute arose before installation. There was no impediment to restoration in either case. The real problem here is not the question of tender, even though we did note that there had never been an effective tender of the assets purchased or an offer to restore Robinson to his position as it existed at the time of the agreement, and that appellant made no mention of restoration or offer of restoration in his answer or counterclaim. The important fact is that even though appellant offered to relinquish any interest he had in the business, he, through his son and daughter-in-law, had operated the business for more than four months prior to appellant’s attempted rescission, selling the assets in the regular course of business, and buying inventory for use therein, and continued in possession and operation of the business for an additional two or three months thereafter. Under any circumstances, appellee would have been entitled to some accounting for these assets and a restoration to that extent. See Parker v. Johnston, 244 Ark. 355, 426 S.W. 2d 155. But the record, as abstracted, does not indicate any basis on which that could be done. Appellant asserts that what he received was worthless. He also contends that there was a failure of consideration and that this issue was raised in the trial court and not for the first time on appeal, as stated in the original opinion. The only allegations in appellant’s pleadings that could be taken to raise the issue of failure of consideration in the trial court are statements from which appellant asserted that the “business indebtedness” was “large” and in excess of the value of the assets. In his brief here, appellant argued that there was a total failure of consideration. He placed specific reliance upon 77 CJS Sales, § 22b, par. 3, in which it is stated that there is an entire failure of consideration for property sold with a warranty against encumbrances if it is sold for debts which were liens against it at the time of the sale or if it did not have a value in excess of prior encumbrances existing at the time of sale, provided such encumbrances have prevented any substantial use or enjoyment of the property by the buyer. Although it is clearly established that the value of the business was misrepresented , to Carl Herrick, the trial court did not find that there was a failure of consideration, if the matter was actually in issue. Appellant filed a motion for new trial and an amended motion for new trial. In neither of them did appellant suggest that the trial court had overlooked this issue. More importantly, even though the burden was on appellant in the trial court to show that there was a total failure of consideration and to demon strate that there was error on the part of the trial court in failing to hold for appellant on that issue, appellant has failed to show that the business purchased was worth less than the liens against it on the record before us, which is the record abstracted. Appellant’s house was covered by some of these liens and Twin City Bank was paid over $22,000 from the proceeds of the sale of the house. The balance of the Twin City Bank lien was extinguished when the physical assets of the business were sold in the receivership proceeding. At the time of the sale to appellant it appears that the federal tax lien was less than $5,000. Although it is clear that the inventory was of less value than represented, the inventory taken by Beverly Herrick is not abstracted. It was admitted that the values she placed on the items were a matter of her own opinion. There is simply no means by which we can determine the value of the items sold by the Herricks or the value of those items retained by Robinson which appellants contend were properly assets of the business they purchased, or for that matter of the inventory actually received by the Herricks. On this record, we cannot say that the trial court erred in not holding for appellant on the question of failure of consideration. Furthermore, we cannot say, on the record abstracted, that the assets purchased were worthless or that they were worth less than the liens against ihem at the time of the sale. Appellant also contends that we erroneously stated that his action for rescission was inconsistent with recovery for breach of warranty, because we did not take into consideration the provisions of the Uniform Commercial Code. There is a problem in attempting to apply the Uniform Commercial Code Article on Sales, where, as here, there is a sale of a group of assets, some of which are goods, such as inventory and equipment, and others, e.g., the business name, goodwill, and accounts receivable, are not goods. See Ark. Stat. Ann. §§ 85-2-105, 85-2-107 (Add. 1961). It has been held that, in a sale such as this, the UCC provisions governing sales apply to the sale of goods, but not to the sale of that part of the assets which are non-goods. Foster v. Colorado Radio Corp., 381 F. 2d 222 (10 Cir., 1967). In a case in which the sale of a business involved goods only it was held that the Article applied but the rule of Foster was recognized. Miller v. Belk, 23 N.C. App. 1, 207 S.E. 2d 792 (1974). It has also been held that, when the physical assets are of little significance in a sale of both tangible and intangible assets (unlike the case before us), the contract should be viewed as one integrated contract, and Article 2 of the UCC is inapplicable. Field v. Golden Triangle Broadcasting, Inc., 451 Pa. 410, 305 A. 2d 689 (1973), cert. den. 414 U.S. 1158, 94 S. Ct. 916, 39 L. Ed. 2d 110 (1973). The Foster rule was recognized and applied in a case involving the sale of a cordwood business, where, unlike the case before us, the entire purchase price was allocated by its terms among the various items of tangible property which were transferred by the sale. Melms v. Mitchell, 266 Or. 208, 512 P. 2d 1336, 65 ALR 3d 376 (1973). The Oregon court later pointed out that in Melms, the entire contract and the conditions thereof had to do only with goods as defined by the Uniform Commercial Code. It also stated flatly that there was no precedent for treating a contract as completely under the UCC provisions where (as here) it covers both goods and non-goods. Meister v. Arden-Mayfair, Inc., 276 Or. 517, 555 P. 2d 923 (1976). The Foster rule, which seems to be generally accepted, would require that this contract be viewed in two parts, but this is not possible on the record before us. If the UCC applies, it appears that appellant is correct in his contention that remedies for material misrepresentation or fraud include all remedies for non-fraudulent breach and that neither rescission, a claim for rescission of a contract for sale, nor rejection of the goods bars, or is inconsistent with, a claim for damages or other remedy. Ark. Stat. Ann. § 85-2-721 (Add. 1961). But appellant relies, in part, upon Ark. Stat. Ann. § 85-2-711 (Add. 1961) for recovery of damages in addition to the portion of the purchase price paid by him, pointing out that where the buyer rightfully rejects or justifiably revokes acceptance, he may cancel and may, in addition to recovery of the purchase price as has been paid, have “cover” and damages for non-delivery. There was no evidence of “cover” as defined in Ark. Stat. Ann. § 85-2-711 (Add. 1961). The measure of damages for non-delivery is the difference between the market price at the time the buyer learned of the breach and the contract price together with incidental and consequential damages but less expenses saved in consequence of the seller’s breach. Ark. Stat. Ann. § 85-2-713 (Add. 1961). As heretofore pointed out, the record as abstracted, does not disclose evidence from which these damages could have been awarded, unless the $2,500 advanced for operation of the business is considered as an incidental or consequential damage. These expenses are not a consequential damage, as defined in Ark. Stat. Ann. § 85-2-715 (2) (Add. 1961). Nor can we say, as a matter of law, that it was an incidental damage as a reasonable expense incident to appellee’s breach under Ark. Stat. Ann. § 85-2-715 (1). Appellant also relies upon Ark. Stat. Ann. § 85-2-711 (3), giving a buyer a security interest in goods in his possession and control for any payments made on the purchase price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody. There is nothing in the record, as abstracted, to show that the $2,500 advanced by appellant was for any of these purposes. What is just as important, is that § 85-2-711 (3) does not apply unless there has been a rightful rejection or justifiable revocation of acceptance of the goods involved. As appellant points out, under the UCC there is no magic in the words “cancellation” or “rescission.” Ark. Stat. Ann. § 85-2-720 (Add. 1961). But rejection must be within a reasonable time after delivery of the goods and is ineffective unless the buyer seasonably notifies the seller. Ark. Stat. Ann. § 85-2-602 (Add. 1961). This is the same requirement as has always been made as to rescission and the trial court held that this was not timely done. Consequently, appellant must be taken to have accepted the goods unless, after reasonable opportunity to inspect them, he made an effective rejection. Ark. Stat. Ann. § 85-2-606 (1) (a) and (b) (Add. 1961). He also must be deemed to have accepted the goods if he did any act inconsistent with the seller’s ownership if that act was ratified by the seller. Ark. Stat. Ann. § 85-2-606 (1) (c) (Add. 1961). For the reasons heretofore stated, there was an acceptance by appellant, unless that acceptance was revoked. Revocation must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller. Ark. Stat. Ann. § 85-2-608 (Add. 1961). The court’s finding as to timeliness of the “rescission” is a bar to an effective revocation, as is the retention of possession and selling of the goods after the ground for revocation should have been discovered. Appellant’s remedies, then are those available for breach of contract in regard to accepted goods. Ark. Stat. Ann. § 85-2-721 (Add. 1961). These remedies include damages as set out in Ark. Stat. Ann. § 85-2-714 (Add. 1961). Recovery is barred under the first subsection of that section, which allows recovery of loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable, in the absence of notice of the breach to the seller within a reasonable time after the buyer discovers or should have discovered the breach. The trial court’s finding on timeliness of “rescission” bars appellant’s recovery under that section. As we have previously pointed out, the record as abstracted does not show any basis for finding the difference between the value of the goods accepted and the value they would have had if they had been as warranted. Nor can we say that special circumstances show proximate damages of a different amount. Thus, we cannot say there was a basis for allowing additional damages under Ark. Stat. Ann. § 85-2-715 (2); or that additional damages should have been allowed as incidental and consequential damages under Ark. Stat. Ann. § 85-2-715 (Add. 1961). The burden was on appellant to demonstrate error in the judgment of the trial court. Commercial Union Insurance Co. v. Henshall, 262 Ark. 117, 553 S.W. 2d 274. He has not sustained that burden so the petition for rehearing must be denied. Hickman, J., dissents and would grant the rehearing.

PER CURIAM It is undisputed that appellant was injured in the scope of her employment on May 13, 1978; that she received temporary total disability benefits to March 9,1979, aggregating a total sum of $3,428.57, for a period of forty-two (42) weeks and six days; that her physician found that she was able to return to light-duty work on March 9, 1979, but such work should not involve lifting, bending, twisting and stretching back muscles and that claimant sustained permanent partial disability of 10 per cent for which she was to receive forty- three (43) and 6/7ths weeks of benefits, commencing March 9, 1979, and aggregating a total sum of S3,600.00. Appellant be rehired because cian. that she could not of the restrictions imposed by her physi- On March 12, 1979, claimant made application for unemployment benefits stating that she was seeking fuli-time employment, but could only perform light-duty work. The local agency determined that claimant had voluntarily left her ¡así employment for reasons due to illness after making reasonable efforts to preserve her job rights and, accordingly, ruled that she was eligible to receive unemployment benefits. The appellee appesiled the determination of the local agency stating, as a basis of his appeal: This will acknowledge receipt of your Notice of Decision on a contested claim involving the above captioned individual As your records should show, Mrs. Ross has been drawing payments from our workmen’s compensation insurance for an accident sustained here at the plant. I am enclosing a copy of a letter written to Mrs. Ross under the date of March 14, 1979 which indicates that she has been drawing and will continue to draw workmen’s compensation benefits. I was unaware that a person can draw unemployment insurance as well as workmen’s compensation at one and the same time. If I am wrong in my assumption, we would of course have no basis for an appeal. If, howei’er, we are right we would appeal the decision for her qualification for unemployment insurance. The Appeals Referee on May 11, 1979, affirmed the determination of the local agency allowing claimant to receive benefits under Section 5(a) of the Arkansas Employment Security Law on the premise that she voluntarily left her last employment for reasons of illness after reasonable efforts to preserve her job rights, but held that claimant is “currently not fully able and available for work, or doing those things a reasonably prudent individual would do to secure work, within the meaning of Section 4(c) of the Law. She would be ineligible for benefits beginning April 29, 1979, up to and including the date of the hearing, May 2, 1979.” On May 21, 1979, the Board of Review affirmed the decision of the Appeal Tribunal. We are to decide whether the holding of the Appeal Tribunal, which was adopted by the Board of Review, denying unemployment benefits to claimant on the premise that claimant is not fully able and available for work, nor is she doing those things a reasonably prudent individual would do to secure work within the meaning of Section 4(c) of the Employment Security Law, is supported by substantial evidence. Although claimant reported to work after being released by her physician, she was advised by her employer that there was nothing available because of the restrictive conditions imposed by her doctor. Claimant admitted that she did not seek employment at Whirlpool or any other factory because her doctor had “ruled out” factory work; but she did affirmatively seek light work at Bruce’s Market in Branch and the retail stores in Paris. Claimant also visited the vocational school at Ozark in order to enroll in a rehabilitative program. Moreover, a conference was scheduled with a Mr. Kempt at the vocational school the date of claimant’s hearing before the Appeal Referee. After carefully reviewing the record, we are not persuaded that the Board of Review’s holding that claimant is not fully able and available for work or doing those things a reasonably prudent individual is expected to do in seeking work is supported by substantial evidence. Therefore, we reverse the Board of Review on this holding, but affirm the finding that appellant is eligible to receive benefits under Sec tion 5(a) of the Arkansas Employment Security Law. We are persuaded that where, as here, an unemployed person, partially disabled by an industrial injury, and her physician has released her for light-duty work, may still be able to compete in the labor market and may qualify for unemployment benefits as one available for work, although she may be receiving, under the Workers’ Compensation Law, partial permanent disability benefits as distinguished from temporary total disability benefits during the period of recuperation. See: Edwards v. Metro Title Co., 133 So. 2d 411 (Fla. 1961); Utica Mutual Insurance Company, et al v. Pioda, 90 Ga. App. 593, 83 S.E.2d 627 (1954). We find no prohibition against the receipt by a worker of unemployment compensation while receiving workers’ compensation benefits under the factual situation presented. Affirmed in part and reversed in part. It is interesting to note that the workers’ compensation act relative to temporary partial disability, Ark. Stat. Ann. §81-1313(b) and (h) provides: (b) In case of temporary partial disability resulting in the decrease of the injured employee’s average weekly wage, there shall be paid to the employee sixty-six and two thirds per cent (66 2/3%) of the difference between the employee’s average weekly wage prior to the accident and his wage earning capacity after the injury. (h) If any injured employee refuses employment suitable to his capacity offered to or procured for him, he shall not be entitled to any compensation during the continuance of such refusal, unless in the opinion of the Commission, such refusal is justifiable. It seems plain that although an individual may be receiving workers’ compensation, it is desirable that he seek employment within his capabilities. A fortiori an employee who is unable to find work within his capabilities should not be disentitled to receive unemployment benefits on the theory that he is not fully able and available for work.

Lyle Brown, Justice. This is an action in trespass instituted by J. C. French and wife, appellants here, against Kermit L. Richardson and Malvern Broadcasting Company. Richardson and wife own the broadcasting Company. The station is located on the Richardson lands, while the broadcasting tower is situated on adjacent lands belonging to appellants. Plaintiffs below sought the removal of transmission wires running over their lands and connecting with the broadcasting station tower; they also sought damages allegedly caused by continuous trips across the French lands in servicing the lines and tower. The chancellor held that the Frenches knew of the existence of the transmission wires and tower at the time they bought the lands and he declined to disturb the broadcasting company’s use of that equipment and access thereto. In so holding, the court rejected plaintiffs’ theory that they were bona fide purchasers without notice of the broadcasting company’s unrecorded easement lease covering the French lands. In 1963 Mr. and Mrs. French acquired a twenty-five acre tract from Builders’ Lumber & Supply Co., Inc. The deed contained the regular warranties, the only exception being this recitation: “Subject to any and all rights, easements and privileges now existing.” Five years previously, Builders executed a conveyance to Malvern Broadcasting, granting an easement lease over, across, and on the lands subsequently deeded to the Frenches. The easement covered a transmission tower already located thereon. It was for the stated purpose of “keeping, maintaining, and using its tower and transmission line.” Those facilities served the broadcasting station located a short distance away and on land not the subject of this litigation. The easement lease was for a ten-year period with a ten-year option to renew. The recited consideration was one dollar. The instrument was not recorded until after the Frenches purchased the lands on which the tower is located. Here we have the Frenches purchasing a tract of land which at the time of their purchase was burdened with a servitude represented by an unrecorded easement lease. The law governing the respective rights of the parties in that situation is well settled. The prevailing rule is found in Am. Jur., Easements, § 156 (1957): It has often been said that in order to affect the purchaser of a servient estate the easement if unrecorded, must be one that is apparent as well, as necessary and continuous, or the marks of the servitude must be open and visible. Accordingly, it is held that if the servitude cannot be discovered by an inspection of the premises, the purchaser is not charged with notice of its existence, except in so far as he may be charged with constructive notice under the recording laws. On the other hand, the proposition that, a purchaser of real estate is charged with notice of an easement where the existence of the servitude is apparent upon an ordinary inspection of the premises is sound beyond question. A case in point is Hannah v. Daniel, 221 Ark. 105, 252 S.W. 2d 548 (1952). Hannah and Daniel purchased adjoining lots from J. O. King. Daniel’s purchase was prior to that of Hannah. Shortly after Hannah moved upon his lot he observed his neighbor Daniel constructing a pond which overlapped on the Hannah property. Daniel was proceeding on the strength of an oral easement allegedly obtained from King before Hannah’s purchase. In deciding for Hannah, this Court quoted the rule found in Waller v. Dansby, 145 Ark. 306, 224 S.W. 615 (1920): The general rule is, that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. Or, as the rule has been expressed more briefly, where a man has sufficient information to lead him to a fact, he shall be deemed cognizant of it. An examination of the evidence in Hannah v. Daniel convinced this Court that at the time Hannah purchased his property there was no physical improvement located on that property which would reasonably make it. apparent that a servitude existed. In the case at bar the evidence is clearly to the contrary, as will shortly be revealed. The tower and transmission lines supported by poles were erected in 1958 on what was to become the French property. The tower is over 200 feet in height and the poles are similar to ordinary public utility poles. J. C. French, a Malvern business man, conceded that he was fully cognizant of the tower and poles being on the land which he proposed to and did purchase. He explained that he contemplated possibly moving his LP gas business from downtown and constructing a new building on the property purchased; that the new building would be located some distance south and east of the tower and on highway frontage; that the tower and lines would not interfere with his LP gas operation; and consequently he made no inquiry about an outstanding easement. He frankly stated his disappointment to be that he was not able, as he anticipated, to draw lease rent from appellees. Some sixty days after the purchase, Mi*. French’s son-in-law, who was pasturing cattle on the land, noticed an employee of the broadcasting company mowing a narrow strip to the tower and also mowing around it. It was at that point that French inquired and was advised of the easement lease. Mr. French’s purchase of the property with full knowledge of the existence of the tower and transmission lines was sufficient to put him on notice of the existence of a servitude. Had he exercised his duty to make inquiry iio would have easily discovered the existence and conditions of the lease easement. He is therefore charged, under our settled law, with notice of the easement. Appellant argues that it would be inequitable to burden the French property with a “no-rent easement lease.” Malvern Broadcasting actually paid a substantial consideration for the easement and improvements thereon. The towTer was erected at a cost of some $5000. Appellee Richardson paid $42,500 to become the sole owner of the station and the evidence is convincing that the value of the easement, with the improvements thereon, figured substantially in the purchase price paid. Finally, Richardson might have been derelict in not recording the lease easement; and the real estate broker who handled the sale, and who had knowledge of the outstanding easement, might have avoided this litigation had he informed Mr. French of that instrument. Yet there was a combination of two factors which should have aroused inquiry on the part of French. First, his deed recited that it was subject to any easements and privileges then existing. Secondly, the improvements made under the easement were in notoriously open view and their existence was well known to French. He admittedly never discussed the transaction with his vendor, nor did he make any inquiry of the real estate broker about the significance of the quoted restriction in the deed. Affirmed.

Smiti-x, J. E. R.. Edwards owned two adjacent forty-acre tracts of land, wbicb, together, constituted Ms homestead, where he resided with his wife. He executed a timber deed to Fred Jones, conveying “All the merchantable pine and gum timber” on the lands constituting his homestead, for the consideration of $120. The wife did not execute or acknowledge this deed. After the timber had been cut and removed, Edwards and his wife joined in a suit against Jones for the treble value of the timber, upon the theory that the deed was void, inasmuch as Mrs. Edwards had not joined in its execution and acknowledgment. Certain questions were raised in the pleadings and in the introduction of the testimony as to whether timber not merchantable had been cut, and also as to damages occasioned by setting out a fire on the lands. There was a verdict and judgment in favor of Jones, from which is this appeal, and appellants state the question submitted for our decision as follows: “Therefore, we are going to discuss this evidence as to the legality of the deed, as we think the case should either be affirmed or reversed on this question alone.” The concession is made by appellee as it may well he —that the deed was void under the provisions of § 7181, Pope’s Digest. See Autrey v. Lake, 195 Ark. 243, 112 S. W. 2d 434, and cases there cited. But the court was of the opinion that, under the testimony, the wife had estopped herself to raise that question, and no testimony is abstracted to show that the court was in error in so holding, indeed, the testimony is not incorporated in the transcript. For the sake of brevity apparently, the parties entered into “Stipulations as to evidence in the above-entitled cause agreed to by attorneys for plaintiff; and defendant.” From these stipulations we copy as follows: “The court then held over the objections of plaintiffs that the deed was a good written contract and bound the wife as such when she had knowledge of the cutting of the timber, her husband being employed in the cutting of same by the defendant, and by her silence to object to' the cutting and receiving the benefits of the consideration for said timber through her husband, she would now be estopped to maintain this action. The court further holding that she had the right to enjoin the cutting by the defendant, but refused to avail herself of that remedy and cannot now claim damages in this action. To which ruling* of the court the plaintiffs at the time ob- jectecl and asked that their exceptions he noted of record.” Appellee vouchsafes the information that the testimony showed that Edwards was employed in cutting and removing the timber, and that a part of the consideration for the timber deed was paid Edwards and his wife by furnishing them with groceries for their housekeeping purposes as well as other necessities for their use. We cannot consider this as testimony, for the reason that it does not appear in the record, but inasmuch, as no testimony upon this question appears in the record we must indulge the presumption that testimony was offered which sustained the declaration made by the court, if competent testimony to that effect could have been offered. St. Francis County v. Lee County, 46 Ark. 67; Kansas City, F. S. & M. R. R. Co. v. Joslin, 74 Ark. 551, 86 S. W. 435; London v. McGehee, 126 Ark. 469, 191 S. W. 10. We perceive no reason why Mrs. Edwards may not have estopped herself to question the validity of the sale of the timber, and if she stood by and saw her husband assist in cutting it and received for her own use and benefit portions of the proceeds of the sale of the timber (and as such testimony may have been offered — and we must assume that it was) she is estopped to deny the validity of a sale against which she made no protest until the consideration had been paid, appropriated and enjoyed by herself and her husband. It was said in the case of Fox v. Drewry, 62 Ark. 316, 35 S. W. 533, that a married woman may be estopped to claim real estate, or an interest therein, but that mere silence or inertness will not suffice to work an estoppel “Unless in some way the party relying upon an estoppel is put at disadvantage by the action of the party sought to be estopped, it will not be available.” But, as has already been shown, Jones was put to disadvantage. Mrs. Edwards had the opportunity to speak, but remained silent. She saw Jones employ her husband and pay him wages, and she received the benefits of payments on the purchase price. These payments of wages and of purchase price were the natural results of Mrs. Edwards’ silence, and she must have known that Jones relied upon her silence to his detriment if she may now he heard to speak. Pettit-Galloway Co. v. Womack, 167 Ark. 356, 268 S. W. 353. The view that Mrs. Edwards has estopped herself to question the validity of the timber deed renders: unimportant the fact that the deed was void when executed. The judgment will, therefore, be affirmed, and it is so ordered.