Owens v. Bill & Tony's Liquor Store

Conley Byrd, Justice. This litigation arises out of an altercation between appellant James Owens and W. E. House, one of the partners in appellee, Bill & Tony’s Liquor Store. Appellee Maryland Casualty Company is the Workmen’s Compensation Carrier. Following the altercation Owens filed a common law action against House for an intentional and malicious assault. Owens then filed a claim for compensation with the Workmen’s Compensation Commission. The Commission allowed the claim and awarded compensation. On appeal to the Circuit Court the claim was dismissed on the theory that the filing of the common law action constituted an election of remedies. Owens appeals, raising only that issue. Appellees have filed in this Court a motion to dismiss for failure to comply with Ark. Stat. Ann. § 27-2127.1 (Supp. 1973). MOTION TO DISMISS. Appellees point out that Ark. Stat. Ann. § 27-2127.1, limits the authority of trial courts in granting of extensions to file the record on appeals to those situations where it is necessary to include transcribed testimony. We recognized the problem in Gallman v. Carnes, 254 Ark. 155, 492 S.W. 2d 255 (1973), and promulgated Supreme Court Rule 26A requiring that application for extensions be served upon opposing counsel. The record here shows that there was no transcribed testimony to be included in the record. However, within the 90 day period appellant filed a motion for extension and properly served appellees. The appellees purposely did not object to the extension and did not raise the issue here until after the action at law had been dismissed and appellant had filed his brief in this Court. Since Ark. Stat. Ann. § 27-2106.1 (Repl. 1962), provides that the failure to file the record in this Court within 90 days, or any extension thereof, does not affect the validity of the appeal but only furnishes ground for such action as we deem appropriate, we must decide what action is appropriate. When we consider that the purpose of the restriction placed in Ark. Stat. Ann. § 27-2127.1, by Act 206 of 1971, was to eliminate unnecessary delays in the docketing of appeals, we hold that an appellee who does not object to the obtaining of such an extension at the first opportunity will be deemed to have waived the error. Nothing said herein should be construed as affecting our decisions with reference to the filing of the record after the 90 day period when no extension has been obtained or records filed beyond the seven months limit. See Bernard v. Howell, 254 Ark. 828, 496 S.W. 2d 362 (1973); Stebbins & Roberts, Inc. v. Rogers, Trustee, 223 Ark. 809, 268 S.W. 2d 871 (1954); and West v. Smith, 224 Ark. 651, 278 S.W. 2d 126 (1955). ELECTION OF REMEDIES: The appellees, to sustain the trial court’s ruling that appellant is barred by the doctrine of election of remedies, point to the reasoning of this Court in Heskett v. Fisher Laundry & Cleaners Company, Inc., 217 Ark. 350, 230 S.W. 2d 28 (1950). In that case we held that the Workmen’s Compensation Act did not bar an employee’s common law action against an employer for a malicious and intentional assault and battery. In so holding we quoted from numerous authorities, including Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233, 72 ALR 108 (1930), and concluded: “. . . We conclude that the ruje laid down in Boek v. Wong Hing, supra, is supported by sound reasoning and that appellant is entitled to elect to either claim compensation under the compensation act or treat the willful assault as a severance of the employer-employee relationship and seek full damages in a common law action. . . Heskett v. Fisher Laundry & Cleaners Company, Inc., supra, did not involve the issue of whether such remedies were inconsistent and, of course, is not a binding precedent on that issue. All authorities recognize that the election of remedies doctrine is a harsh one and that it should not be unduly extended, 25 Am. Jur. 2d Election of Remedies § 3 (1966). The Workmen’s Compensation authorities, 2 A. LARSON, Workmen’s Compensation Law § 67.22 (1975), point out that the doctrine is too harsh to be applied in Workmen’s Compensation cases. We pointed out in Gentry v. Jett, 235 Ark. 20, 356 S.W. 2d 736 (1962), that in “Workmen’s Compensation cases there appears to be an even less strict adherence to the election rule than in other cases.” However, we need go no further than the Workmen’s Compensation Act, Ark. Stat. Ann. ? 18-1318(e) (Supp. 1973), which specifically recognizes that the filing of an action at common law is not an irrevocable election of a remedy. Furthermore, the record here shows that the same facts would support either a claim for compensation or an action at common law and that the defense would be the same to either action. Consequently, it is only by a slavish recognition of the doctrine and by a mechanical application of a fictional legal theory that it can be said that the two remedies are inconsistent. Having determined that the doctrine of election of remedies is not applicable to Workmen’s Compensation claims made subsequent to the filing of an action at law, it follows that the circuit court’s order of dismissal should be reversed and the Commission’s award reinstated. Reversed and remanded with directions. Fogleman, J., dissents in part.