text:
    McGeorge Construction Co. v. Taylor.
    5-2458
    350 S. W. 2d 313
    Opinion delivered October 23, 1961.

      Riddick Riff el, for appellant.

      Donald Poe, for appellee.
   Carleton Harris, Chief Justice.

This is a workmen’s compensation case. Claude Taylor, an employee of McG-eorge Construction Company, on June 8, 1958, collapsed while on a company job, and died from a heart attack. His widow, Mrs. Flo Taylor, sought compensation benefits for herself and two minor children. Three hearings were held before two referees, and the last of the referees denied the claim, finding that Mr. Taylor’s death was not the result of an accidental injury occurring in the course of his employment. Upon review by the full commission, where additional evidence was also introduced, the order of the referee was reversed, and the commission ordered compensation benefits paid to appellee and her minor daughters, holding that claimants had established by a preponderance of the evidence that there was a causal connection between the exertion of the deceased and his fatal heart attack. On appeal to the Circuit Court, the findings of the commission were affirmed. Appeal to this Court has followed.

Proof on the part of the claimant showed that Taylor and his son, Donald, were employed by McGeorge on a job near Benton. The father and son roomed and ate together while working at this location. The father was employed as a motor patrol operator, and the son as a time keeper. There was testimony on the part of Donald to the effect that his father had worked an unusual number of hours during the week preceding his death, and that the motor patrol operated by his father was in poor condition; the witness stated that the machine was driven, and the blade raised and lowered by the use of levers; that these levers would “kick back hard” when strain was put on the blade. The machine was guided by a steering wheel. The motor patrol, used in leveling the road under construction, constantly came in contact with rocks about a foot in diameter, which would likewise forcibly jar the steering wheel, and his father had received a burn on the arm from contact with the wheel. Three witnesses on behalf of the company denied that the machine was defective, though the maintenance mechanic for McGeorge stated that Taylor had made a complaint to him that the blade would not stay in position, and he (the mechanic) fixed it. A discussion of the significance of this testimony is not required, inasmuch as we have held numerous times that it is not necessary that an injury be caused by unusual strain or exertion before it is compensable, but rather, the claim is compensable when the claimant’s ordinary work aggravates a pre-existing condition, and thus contributes to the injury. See Crossett Chemical Co. v. Sedberry, 232 Ark. 608, 339 S. W. 2d 426, and cases cited therein.

Taylor testified that on Saturday night, June 7th, his father complained of his arms hurting and aching, was very tired, too tired to eat supper, and young Taylor took his father’s supper to the latter’s room. The next morning they had breakfast together, and separated, Donald going to the ice house to pick up ice, and his father proceeding to the job. The son testified that about 8:30 a.m., he arrived at the job, and found his father sitting on the running board of a pickup truck, with his head in his hands. The father’s clothes were dirty and wet from sweat, and his face was pale and dry. Donald took Mr. Taylor to the hospital, where he was examined by Dr. H. B. Thorn, Jr. Thorn advised the elder Taylor to stay in the hospital, but the latter did not desire to do so, but wanted to go to his home in Waldron. Under these circumstances, Dr. Thorn told Donald to be sure his father stayed in bed three days upon arriving home. The two left in a car for Waldron. On the way, near Pencil Bluff, the elder Taylor died. Dr. G. E. Watkins of Mt. Ida, who examined the body, executed the death certificate, stating that Taylor’s death was caused by a heart attack.

At the hearing before the referee, a letter from Dr. Thorn was offered in evidence by the claimant, while Dr. Howard A. Dishongh testified on behalf of appellants. The last paragraph of Dr. Thorn’s letter states:

“The writer is of the opinion that the coronary occlusion could have been caused by his long hours of work and attending stressful circumstances, though it is impossible to ascertain that his death was a direct result of his work.”

Dr. Dishongh, who did not know Taylor, testified in response to interrogation by appellants’ counsel, that he did not think Taylor’s approximately thirty minutes of work on the morning of June 8th had anything to do with his death. “I see no connection with a man’s heart attack and his work, the actual happening, because there has to be a disease of the inside of those arteries before anything happens.” The further question was asked:

“Now, Dr. Dishongh, if the record reveals further that Mr. Taylor had been operating a motor patrol or a grader doing the same or similar type of work for many years and if the record reveals that for several weeks prior to the onset of his illness, that is, on June 8th, 1958, he had worked for seventy hours a week and if the record reveals that prior to June 8th, 1958, the grader which he was operating was somewhat defective in that the gear would kick out and he would have to hold it in with his hand and things of that type, would those facts, in your opinion, or stated more positively, would you state your opinion as to a causal connection between his terminal illness and death in the work he was doing considering further those facts that I have just outlined?”

The doctor replied:

“I don’t think it would have a thing in the world to do with it, Mr. Riff el. We see just as many of those cases that happen in the bed as we do while they are at work.”

He further stated, “I don’t think the weakening of his physical condition would have anything to do with the heart attack.” Apparently, Dr. Dishongh was not convinced that Taylor had actually died of a heart attack, for he stated on cross-examination, “Long hours might have aggravated a pre-existing condition providing you knew there was a pre-existing condition. * * * if you could bring out the fact that he had that condition prior to this attack, I would answer your question, ‘yes’.” Further: “We have nothing except the history to go on that he died of a heart attack. We are assuming that it happened. He conld have .had a stroke just as easily.” Subsequently, before the commission, Dr. Dishongh was asked:

“Q. But will you say, Doctor, that if he had this condition before he went to work that morning, that his work that morning would have aggravated his condition?
A. If you could positively diagnose it as having been a heart attack, I would have to say yes.”

Following the hearing before the referee, the deposition of Dr. E. Lloyd Wilbur, pathologist, was taken, and filed with the commission. Dr. Wilbur testified that he had read the testimony in the case relative to the circumstances surrounding the occasion when Taylor collapsed on the job near Benton. The doctor stated that, from a study of the testimony, he agreed with the two doctors (Thorn and Watkins) that Taylor suffered a fatal heart attack; that, in his opinion, the onset of the heart aihnent was shortly “prior to the time that he was in his room at the motel where he was staying and the time he ate supper on Saturday night.” He said that Taylor should not have worked on Sunday morning, and the fact that the latter went out on the job, in his opinion, aggravated the disease and increased the chance of a fatal outcome. Specifically, Dr. Wilbur was of the opinion that Taylor had suffered a coronary occlusion with a myocardial infarction. On cross-examination, the doctor expressed his reasons for feeling that the onset of the coronary occurred on Saturday night.

“Because pain in the arms — one or both of them— either right or left — is frequently the first sign of a coronary occlusion or a myocardial infarction.
Q. From your study of this case, do you find any other symptom of coronary occlusion, any other clinical symptom apparent prior to the time of death, besides pain in his arms?
A. The extreme fatigue.
Q. All right, sir. So that — what I am getting at— if I told you right now that I had pain in my arms and was tired and didn’t want to work, would you think that I was suffering from an incipient coronary?
A. I would consider it enough to suggest that you get an electrocardiogram.
Q. I understand that. But if I told you that I suffered from bursitis in both shoulders, would that make some difference as to whether I should go and get an electrocardiogram ?
A. Not if you also had fatigue at the same time.”
“One other point, and let’s get this on the record, too. Can you state positively, doctor, from a medical viewpoint whether or not there has been any aggravation in any individual case such as the one we have under consideration now, unless you know the extent of the pathology before the exertion or the aggravating factor, or whatever it may be, and the condition of the patient after the aggravating factor?”

The witness replied:

“I think you can, for this reason: That a heart attack such as he had is a disease entity and a disease that is clinically demonstrable has become apparent. He has suffered enough to produce subjective findings in him. Now, I do not say that he did not have coronary artery sclerosis for maybe a year or two before this happened, but the condition had progressed to the point Saturday night, or Saturday afternoon, in which his heart function became impaired.”

Further:

“Q. And at that time, irrespective of his activity— is that what you are saying?
A. Yes.
Q. All right, go ahead.
A. And then once his heart function became impaired — and I am referring there to the inability of the heart muscle to maintain adequate circulation — then any time immediately after that — and by immediately, I mean within a few days — that he would put an increased muscular effort into his activity — and by increased muscular effort, I mean even being out of bed — or working— that he would increase the load on his already damaged heart muscle; therefore, increased activity would be more apt to produce death.
* * * *
A. The probabilities are that the increased activity increased his chance of dying.”

Appellants contend that Dr. Wilbur’s opinion was conjectural and speculative; i. e,, it is not based upon an adequate factual foundation. We do not agree. Dr. Wilbur, who is admitted by appellants to be a qualified and eminent pathologist, testified that he read all the evidence in the case, and based his opinion thereon. Further, he was specific in giving his reasons for concluding that the heart attack had its onset on Saturday night. It is true that his opinion was in conflict with that of Dr. Dishongh, but, of course, in practically every compensation case, relating to a heart attack, there are conflicting medical views. Appellants assert that the mere fact that Taylor had pain in his arms and was extremely fatigued was not sufficient evidence upon which to form an opinion that a heart attack was commencing. Dr. Wilbur was interrogated very closely on this point, and his testimony was rather forceful and emphatic, as heretofore quoted. Of course, none of the doctors could say positively when the heart attack commenced, and Dr. Dishongh’s testimony indicates that he thought there was a possibility Taylor might have died from some, other cause. Appellants point out that Dr. "Wilbur did not examine the decedent. We might likewise mention that this statement applies equally to Dr. Dishongh. In U. S. Fidelity and Guaranty Co. v. Dorman, 232 Ark. 749, 340 S. W. 2d 266, we said:

“Witnesses classed as experts are permitted to give their opinion for the very reason they are considered experts, and their opinions are frequently based, and expressed, purely in answer to a hypothetical question— without ever seeing the patient — as is the case with appellants’ expert witnesses in this litigation.”

Furthermore, the only two doctors who made a personal examination of Taylor, testified that he had suffered a heart attack, and Dr. Thorn was of the opinion that the coronary occlusion could have been caused by “his long-hours of work and attending stressful circumstances.”

As has been so often stated, we do- not disturb the findings of the commission if there is any substantial evidence to support same. We are of the opinion that the testimony herein set out was sufficient to justify the commission in reaching its conclusions, and the judgment of the Circuit Court upholding the award is hereby affirmed.

       Though holding that Taylor’s death was not an accidental injury arising out of his employment, the referee found: “Claude Taylor had been doing very hard, strenuous work for McGeorge Construction Company. He had worked seventy hours during the week which preceded his death. The highway construction work in which he was employed was being carried on in heat and dust. The deceased was working on the job when he suffered his fatal attack.”

         Dr. Dishongh agreed that complaints of fatigue and aching in the arms are among the several symptoms of a coronary infarction, but he stated, “I would never have thought of a heart attack just on those two things alone, because we see it so often where we don’t even think about heart attacks.” Further, “I believe that if the man had been having a heart attack---of course, I am.no prophet _ - - but I believe he would have sought the advice of some physician.”


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Mann v. City of Hot Springs.
    5-2441
    350 S. W. 2d 317
    Opinion delivered October 23, 1961.
    [Rehearing denied November 13, 1961.]

      Richard TV. Hobbs and .R. Julian Glover, for appellant.

      David B. Whittington, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal challenges a judgment of the Garland Circuit Court which annexed to the City of Hot Springs the adjacent territory here involved. The appellants, Sherman Mann and others, are residents of the territory sought to be annexed and have, all the time, most energetically opposed the annexation.

At the General Election in November 1959, there was submitted to the electors of the City of Hot Springs. (hereinafter called “The City”) the question of annexing the territory here involved, containing in excess of 700 acres all located south and west of the then existing city limits, and all being in Garland County. The vote was overwhelming in favor of annexation. Thereupon, the City, proceeding under § 19-307 Ark. Stats., presented to the Garland County Court the petition for annexation. The appellants, for themselves and other residents in the territory sought to be annexed, offered testimony in opposition to the annexation, but the County Court duly entered the order for annexation. The case was appealed to the Circuit Court; trial there resulted in a judgment for annexation; and the case is here on appeal.

At the outset, we mention a few rules applicable to a case like this:

(a) The vote of the electors of the City of Hot Springs made a prima facie case for annexation, and the burden was on the appellants, as the objectors, to defeat the prima facie case. Dodson v. Mayor & Town Council, 33 Ark. 508; Burton v. Ft. Smith, 214 Ark. 516, 216 S. W. 2d 884; Marsh v. El Dorado, 217 Ark. 838, 233 S. W. 2d 536.

(b) The findings of fact of the Circuit Court in an annexation case like this have the force and effect of a jury verdict, and the appellants, here, have the burden of proving that there was no substantial evidence to sustain the Circuit Court judgment. Burton v. Ft. Smith, supra; Garner v. Benson, 224 Ark. 215, 272 S. W. 2d 442; City of Little Rock v. Findley, 224 Ark. 305, 272 S. W. 2d 823.

(c) “That city limits may reasonably and properly be extended so as to take in contiguous lands, (1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be bought on the market and sold as town property when they reach a value corresponding with the views of the owner, (3) when they furnish the abode for a densely-settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any proper town purpose, as for the extension of its streets, or sewer, gas or water system, or to supply places for the abode or business of its residents, or for the extension of needed policy regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses; but the mere fact that their value is enhanced by reason of their nearness to the corporation, would not give ground for their annexation, if it did not appear such value was enhanced on account of their adaptability to town use. . . . that city limits should not be so extended as to take in contiguous lands, (1) when they are used only for purposes of agriculture or horticulture, and are valuable on account of such use, (2) when they are vacant and do not derive special value from their adaptability for city uses.” Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891, 16 S. W. 291, 11 L. R. A. 778.

"We have studied the record here before us, with the foregoing rules in mind, and have come to the unanimous conclusion that the Circuit Court judgment must be affirmed. The desires of the residents in the territory to be annexed are not a determinative point. (Dodson v. Mayor & Town Council, supra.) The deciding issue is whether the testimony in favor of annexation measures up to the rules as first enunciated in Vestal v. Little Rock, and reiterated in our subsequent cases, one of which is Garner v. Benson, supra. The record here shows that most of the area sought to be annexed is thickly settled, traversed by streets and highways, and already has stores, banks, schools, filling stations and various other businesses, thereby demonstrating the suburban nature of the territory; and that the City of Hot Springs has shown its ability to provide water, fire, and police protection, and the necessity for such. There is every reason why the territory should be annexed.

The judgment of the Circuit Court is affirmed.

       There is an annotation in 62 A.L.R. 1011, entitled, “Facts warranting extension or reduction of municipal boundaries,” which cites the Vestal case and other Arkansas cases.

       In 62 C.J.S. 129, “Municipal Corporations” § 44, cases are cited to sustain the statement that it is not a valid excuse for refusing annexation of territory that the taxes in such territory will be increased.

       Two small plots of ground in which two branch banks are located are not embraced in the annexation, in order to prevent the banks from offending against § 67-319 Ark. Stats. As to this statute, we express no opinion; but the exclusion of the two plots does not destroy the contiguity of the territory to be annexed.


text:
    Moffatt v. City of Forrest City.
    5-2464
    350 S. W. 2d 327
    Opinion delivered October 23, 1961.

      Fletcher Long, for appellant.

      Jack P. West and Knox Kinney, for appellee.
   Ed. F. McFaddin, Associate Justice.

This litigation involves the application of the Zoning Ordinance of Forest City, Arkansas. Appellants, Mr. and Mrs. Louie Moffatt, purchased a home in the residential district of Forrest City in 1951. In 1954 they made additions to the home- and began operating a meat market and meat processing.piant in said additions; and, as business improved, they-made other additions and enlargements to the meat market portion of the premises. In 1959, Forrest City adopted a zoning ordinance which classified the area in which the Moffatt premises are located as entirely residential. Moffatt’s market was a non-conforming nse. The Zoning Ordinance provided: “If a building occupied by a non-conforming nse is damaged to the extent of 60 per cent or more of its reproduction value exclusive of foundations, such building may not be restored for any non-conforming use.”

On July 20, 1960, there was a fire in which the Moffatt residence quarters were almost entirely destroyed, and the market portion was considerably damaged. When the Moffatts undertook to repair the market in order to resume business, the municipality filed this suit in Chancery Court to enjoin them from any reconstruction. The City alleged that the building was more than 60 per cent destroyed, exclusive of foundations, and that because of the Zoning Ordinance the owners could not restore the property for use as a meat market, such being a non-conforming use. The Moffatts resisted the City’s claim. There were several hearings in the Chancery Court, and the Chancellor personally viewed the premises. The Chancery decree sustained the City’s claim and enjoined the reconstruction of the building, or any building on the premises, for use as a meat market.

The Moffatts have appealed, urging two points:

I. The Appellants Were Entitled to the Application of the Rule of Strict Construction in Their Favor of the Zoning Ordinance.

II. The Appellee Did Not Sustain Its Burden of Proof by a Preponderance of the Evidence.

We agree with the appellants that a zoning ordinance is to be strictly construed in favor of the property holders, since the ordinance is in derogation of the common law and operates to deprive the owner of the property of a use which would otherwise be lawful. City of Little Rock v. Williams, 206 Ark. 861, 177 S. W. 2d 924, and cases and authorities there cited; see, also, City of West Helena v. Bockman, 221 Ark. 677, 256 S. W. 2d 40. But even giving the Zoning Ordinance of Forrest City a strict construction in favor of the property holders, we must decide the fact question: whether the building on the premises was damaged “to the extent of 60 per cent or more of its reproduction value exclusive of foundations.”

The residence and the meat market were housed in one structure. This is shown by the plats and pictures in the transcript. Regardless of the fact that there were additions to the market side of the house, there was only one overall building; and appellants could not have successfully claimed that the market was one building and the residence was another. Such a theory was originally urged, but with becoming candor appellants’ learned counsel conceded: “. . . the cause was ultimately submitted on the theory that the market and the residence constituted one structure and that the issue before the Court was 60% destruction of it exclusive of foundations.”

There was evidence that the total value of the building before the fire was approximately $15,000.00; and that to restore the building after the fire would cost approximately $12,000.00. Five witnesses — some of them building contractors- — -testified that the damage exceeded 60 per cent. Mr. Moffatt did not dispute the fact that the residence portion of the structure was a total loss; and there was other evidence that the residence portion was 10/15ths of the total value. While there is evidence to the contrary, we cannot say that the preponderance of the evidence is contrary to the Chancellor’s conclusions as to the percentage of damage.

Affirmed.

Johnson, J., not participating.

       Allowing the replacement of a structure for a non-conforming use necessarily depends on the wording of the particular ordinance involved. For general statements on this matter, see 58 Am. Jur. 1029, “Zoning” § 162; 101 C.J.S. 960, “Zoning” § 197; and Yokley on “Zoning I.aw and Practice”, Second Edition, § 157.


author: George Rose Smith, J. Ed. F. McFaddin, Associate Justice,

text:
    Thornbrough, Commr. v. Gage.
    5-2503
    350 S. W. 2d 306
    Opinion delivered October 23, 1961.
    [Rehearing denied November 13,1961.]

      Luke Arnett, for appellant.

      McMaih, Leatherman, Woods & Toungdahl, for appellee.
   George Rose Smith, J.

This is an application by the twenty-two appellees, former employees of the American Can Company, for unemployment compensation. The appellees were thrown out of work when the company permanently shut down and discontinued its Fort Smith plant in November, 1958. Under the collective bargaining agreement between the company and its employees all of the appellees received substantial lump sum severance payments in connection with the termination of their employment. The principal question in the case is whether this severance pay constituted a “dismissal payment” that would disqualify the appellees from immediately receiving unemployment compensation from the state. Ark. Stats. 1947, § 81-1106 (f). The highest administrative tribunal, the Board of Review, held that the employees’ receipt of severance pay had no adverse effect upon their right to immediate compensation. The circuit court affirmed the board’s decision.

The labor agreement between the American Can Company and the United Steelworkers of America appears in the record as a printed pamphlet of more than 150 pages. It is binding upon the company and its employees at some fifty plants scattered over more than a dozen states. We mention only the pertinent provisions in this carefully drawn document.

The contract protects the employees against being discharged without cause, but it recognizes the fact that workmen will be laid off from time to time. Seniority governs the order in which men are laid off and recalled to work. The contract contains a Supplemental Unemployment Benefit plan (called SUB) under which these appellees received severance pay.

The SUB plan is directed primarily toward supplementing the unemployment compensation that will be received by idle employees during layoffs. To this end the company agrees to establish a SUB trust fund to be administered by one or more banks as trustees. The company is to build up the fund by making contributions at the rate of five cents an hour for all of its employees ’ working hours. A formula is provided for determining the maximum level at which the fund will be maintained by the company.

The principal purpose of the SUB plan is to provide additional income to employees receiving unemployment compensation during layoffs. In order to- qualify for weekly SUB payments an employee must be eligible for state unemployment compensation; that is, he must register at the local employment office, accept suitable work when offered, etc. If the company protests the employee’s application for unemployment compensation the SUB payments are to be withheld until the protest has been finally determined.

"When an employee is dráwing unemployment compensation from the state during a layoff he is also entitled to weekly payments from the SUB trust fund. The amount of these weekly SUB payments depends upon the employee’s average weekly ages during the preceding year and also upon the amount of unemployment compensation that he is receiving from the particular state where he lives. The SUB plan sets out an exact schedule of weekly payments. We may roughly summarize that schedule by saying that the employee’s state unemployment compensation is first taken into account and is then supplemented by a weekly SUB payment that brings the employee’s total income up to about 55 per cent of his pay at the time he was laid off. The SUB plan recites that its purpose is “to supplement state system unemployment benefits to the levels provided herein, and not to replace or duplicate them.”

The number of weeks for which an employee is entitled to draw SUB payments depends upon the length of his service with the company. Broadly speaking, an employee accumulates one unit of SUB credit for each two weeks of company service, with a maximum allowable credit of 52 units. When an employee is laid off each unit of SUB credit entitles him to one weekly SUB payment, until his credits are exhausted. The limit of 52 credits means that the weekly SUB payments cannot exceed one year.

The employees make no contributions to the SUB trust-fund; it is built up entirely by the company’s contributions. The labor agreement does not contemplate that any employee will acquire a vested interest in the fund in the sense that the employee’s estate will be entitled to any payment from the fund at the employee’s death. There is, however, one provision for lump sum benefits, which is the center of contention in this case. This provision reads as follows:

“If . . . the Company shall decide to close completely and permanently any plant covered by this Agreement, an employee whose job is discontinued, and who does not retire under the Pension Plan in effect between the parties, or transfer to another plant of the Company, will have his credit units converted into a single severance payment determined in accordance with . . . this Agreement. This single severance payment will be paid to such employee in a lump sum at the time of his termination.”

This provision came into play in the case at bar. When the company’s Fort Smith plant was discontinued the various appellees became entitled to receive, and did receive, lump sum severance payments from the company. The testimony of one of the appellees, O. D. Bryson, was offered as a typical case. Bryson had worked for the company for more than ten years, had never drawn weekly SUB payments, and thus was entitled to the maximum 52 units of credit. In accordance with the contract this credit was converted into a lump sum payment of $2,053, which Bryson received. The other appellees are similarly situated.

The first question is whether the lump sum severance payments constituted disqualifying dismissal payments under the statute. The governing act provides that an employee shall be disqualified for unemployment benefits “[f]or any week with respect to which he receives or has received remuneration in the form of:

“(1) Dismissal payments.
“(2) Unemployment benefits under any unemployment compensation law of another state or of the United States.
“(3) Vacation pay.
“ (4) Compensation for retirement provided by an employment contract or agreement. . . .” Ark. Stats., § 81-1106 (f).

The term “dismissal payment” does not have a recognized and established legal meaning. Our legislature evidently intended for the term to mean something more than wages paid in lieu of notice, for Act 155 of 1949 provided that an employee would be disqualified for benefits if he received wages in lieu of notice or dismissal payments. The use of both phrases indicates that they are not considered to be synonymous. It has been pointed out that dismissal “connotes an affirmative action on the part of the employer in initiating the separation.” Dubois v. Maine Emp. Sec. Comm., Maine, 114 Atl. 2d 359.

We preceive no difficulty in defining a “dismissal payment,” for both words are too familiar to be misunderstood or to be considered ambiguous. In the field of employment to dismiss is to discharge. These appellees were discharged by the company when the Fort Smith plant was shut down. Their discharge was the sole reason for their receiving lump sum payments under the SUB plan. When the language of the statute is given its plain and ordinary meaning it cannot be doubted that dismissal payments are involved in this case.

Counsel for the appellees suggest several divergent reasons for saying that these lump sum payments were not dismissal pay, but we do not find the arguments to be persuasive. It is said that the SUB plan refers to “severance payments,” which shows that dismissal payments were not intended. The question, however, is what the legislature meant in selecting the term dismissal payments. If these payments fall within that definition, as they do, it is immaterial that the parties preferred the word severance to the word dismissal. We must look to substance rather than to nomenclature.

It is also said in the appellees’ brief that a characteristic of a disqualifying dismissal payment may be that the employee does not have a vested right to the payment. It is true that some statutes refer to dismissal payments “which the employer is not legally required to make.” See Industrial Comm. v. Sirokman, Colo., 306 P. 2d 669; Ackerson v. Western Union Tel. Co., 234 Minn. 271, 48 N. W. 2d 338, 25 A. L. R. 2d 1063. Our statute, however, like those in many other states* does not contain such a restriction. Indeed, in the next breath our legislature referred to “vacation pay” as having a similar disqualifying effect. We know, of course, that collective bargaining contracts often give the employees a vested right to vacation pay; such a provision appears in the contract now before us. If the legislature was willing to disqualify a person on account of his receiving vacation pay as a matter of right there is no basis for supposing that the lawmakers had a different intention with respect to dismissal pay that accrued as a matter of right.

It is also argued that the appellees should be regarded as having received these dismissal payments as beneficiaiies of the SUB trust rather than as former employees of the company. Even so,-the funds in the trust were wholly contributed by the employer, and the appellees had no vested right to a lump sum payment except in connection with their dismissal. We do not perceive that the mere interposition of a bank as trustee has any substantive effect upon the character of the dismissal payment. Pension plans are frequently administered by trustees, but in certain cases our statute disqualifies the recipient of a pension from being eligible for unemployment compensation. Ark. Stats., § 81-1106 (f) (4). Again there is no good reason to. think that the lawmakers had conflicting intentions about two similar matters.

The second and more difficult question in the case is that of determining the number of weeks for which these dismissal payments disqualified the appellees from receiving unemployment compensation from the state. The statute provides that an individual is disqualified “[f]or any week with respect to which he receives or has received remuneration” in the form of dismissal payments. Ark. Stats., § 81-1106 (f). The appellant contends that each appellee should be disqualified for a number of weeks equal to the number of credit units that were converted into severance pay. On this basis Bryson, for example, would be disqualified for 52 weeks. The appellees insist that they should not be disqualified at all, for the reason that the dismissal payments were not made “with respect” to the weeks following their dismissal by the company.

Hardly any of the eases cited in the briefs are really in point. Many state statutes, including ours, define unemployment by saying that an individual shall be deemed unemployed “with respect to any week during which he performs no services and with respect to which no wages are payable to him.” Ark. Stats., § 81-1103 (m). Under such statutes it is usually held that weekly or lump sum SUB payments do not prevent a person from being unemployed, since the payments are referable to his prior employment rather than to the period of his idleness. Industrial Comm. v. Sirokman, Colo., 306 P. 2d 669; Kroger Co. v. Blumenthal, 13 Ill. 2d 222, 148 N. E. 2d 734; Dubois v. Maine Emp. See. Comm., Maine, 114 Atl. 2d 359; Ackerson v. Western Union Tel. Co., 234 Minn. 271, 48 N. W. 2d 338, 25 A. L. R. 2d 1063; Western Union Tel. Co. v. Texas Emp. Comm., Tex. Civ. App., 243 S. W. 2d 217; contra, Bradshaw v. Calif. Emp. Stabilization Comm., 46 Calif. 2d 608, 297 P. 2d 970.

"We have no quarrel with these decisions, but they do not reach the question now before us. The cited cases were concerned with the fact of unemployment rather than with the disqualifying effect of dismissal payments. (In the Ackerson case the court cited a dismissal payment provision but did not rely upon it in reaching its conclusion.) The language of the two statutory sections differs in that § 81-1106 (f) refers to any week with respect to which the individual receives or has received remuneration.

On the basis of the cases cited above the appellees argue that these dismissal payments were paid “with respect to” the years of their employment rather than with respect to the weeks following their discharge. If this were true no schedule of severance pay could ever be graduated according to length of service, for it would then always be referable to the prior employment. Under our statute this suggestion is effectively rebutted by the fact that the legislature provided a disqualification for the receipt of vacation pay. In the case of. a discharged employee who has accumulated vacation time such pay may be similar to the appellees ’ severance pay in being received as a matter of right, in being graduated according to length of service, and in being paid in a lump sum rather than in weekly installments. Yet the legislature plainly intended for the recipient of vacation pay to be ineligible for unemployment compensation during the period of his paid holiday. We are unable to distinguish that situation from the case at hand.

All the arguments now urged by the appellees were effectively answered in Globe-Democrat Pub. Co. v. Industrial Comm., Mo. App., 301 S. W. 2d 846, which we consider to be directly in point. There the claimant had been discharged after twelve years of service. Under the collective bargaining contract between his union and the employer he was entitled to dismissal compensation amounting to twenty-four weeks ’ pay. He received what the court refers to as “a lump sum dismissal payment” in the amount of $1,825.75. The statute was similar to ours except that it used the phrase “termination allowances” instead of dismissal pay. The administrative commission held that the claimant was disqualified only for the one week in which he received the lump sum payment. In reversing that decision and holding that the claimant was disqualified for the full period of twenty-four weeks the court discussed the principal cases now cited by the appellees and considered the contentions that are now urged. We may conclude this part of our discussion by saying that we thoroughly agree with the reasoning and the conclusions of the Missouri court.

Although we hold that the dismissal payments had a disqualifying effect we are not convinced that the disqualification should be as extensive as the appellant contends. He insists that Bryson, for instance, should be disqualified for a full year merely because 52 units of credit were converted into the lump snm payment that he received.

This position is not sound. The labor contract provides that the credit units shall have no fixed value in terms of time or money. When the SUB trust fund is below its maximum level the SUB payments are proportionately reduced and may be as little as 10 per cent of the amounts ordinarily payable. Thus to approve the appellant’s argument might mean that a modest dismissal payment would result in a prolonged disqualification. Such a narrow view would not be consistent with the liberal interpretation that the act is entitled to receive. Ark. Stats., § 81-1102.

In some states the statutes provide that dismissal pay and the like be allocated to those weeks to which it can reasonably be considered to apply. Schenley Distillers v. Review Board, 123 Ind. App. 508, 112 N. E. 2d 299; Kalen v. Director Div. Emp. Sec., 334 Mass. 503, 136 N. E. 2d 257. Our statute accomplishes the same purpose by directing that the claimant be disqualified with respect to any week for which he has received remuneration in the form of dismissal pay, vacation pay, etc. The legislature obviously intended that this remuneration should be allocated in a- reasonable and appropriate manner.

The dismissal payments in this case were calculated upon the basis of the appellees’ average wages during the year preceding their dismissal. We are of the opinion that the disqualification should be computed in the same manner; that is, each appellee should be disqualified only for the period of time for which his dismissal payment equals the payment in full of his wages at the average rate. This procedure gives effect to the basic intent of the statute and is manifestly fair to both the employer and the employee. The employee is protected against the economic burden of unemployment, while the employer is not penalized for having provided the funds for the dismissal payments.

Since the proof with reference to the claimants’ average earnings and lump sum payments was not fully developed the cause will be remanded through the circuit court for further proceedings consistent with this opinion.

Reversed.

Harris, C.J., and Johnson, J., would affirm the judgment but do not join in the dissenting opinion of McFaddin, J.

Ed. F. McFaddin, Associate Justice,

dissenting.

I Avould affirm the judgment in its entirety, rather than reverse and remand for further calculations. The big question in this case was whether the receipt of severance pay under the “SUB” contract was the same as “dismissal payments” under § 81-1106 (f) (1) Ark. Stats. The Majority Opinion has held- — -and I think quite correctly — -that severance payments under the “SUB” contract are the same as dismissal payments under our said statute. But the Majority has gone further and has held: (a) there must be a determination of the average weekly wage of the worker for the year preceding-his dismissal; and (b) such average wage must be divided into the amount of the dismissal payment in order to determine the number of weeks for which the-Avorker is disqualified from receiving unemployment compensation benefits under our statute, which is § 81-1101 Ark. Stats. This formula, worked out by the Majority for calculating the number of disqualifying weeks, is — to my way of thinking — nothing but judicial legislation, because I find nothing in the statute that prescribes such a formula.

These appellees, who were dismissed by the American Can Company because it permanently closed its plant in Fort Smith, received severance benefits under a contract Avith the American Can Company. These severance benefits had no reference to the weeks for which such worker would be unemployed: the severance benefits were accumulated for weeks in which the worker had previously been employed. The benefits were payable in a lump sum at tbe termination of employment because of an eventuality (termination), with no reference. to how many weeks the appellees would be out of employment. The severance benefits under the “SUB” contract were entirely different from the additional benefits that the worker would receive for a temporary lay-off. This is clear to me by reading the contract between the Steel Workers’ Union and the American Can Company. The “SUB” contract, giving the employees of the American Can Company severance payments in the event the factory was permanently closed, was nothing but a form of accident insurance payment and bears no relation to the unemployment benefits that the employees should receive under the statute.

The Majority Opinion is judicial legislation because it is legislating something into the Arkansas statute that has been placed in the statutes of other States by the Legislatures, but which is now being placed in the Arkansas statute by this opinion of our Court. A case discussed in the consultation, but not cited in the Majority Opinion, is the North Carolina case of In Re Tyson, decided by the Supreme Court of North Carolina in January, 1961, and reported in 253 N. C. 662, 117 S. E. 2d 854; and the formula that the Majority has worked out for calculation in the case at bar is the formula set forth by the Supreme Court of North Carolina in the Tyson case. But the interesting thing about the Tyson case is, that it was decided under a statute which specifically said: “When the amount so paid by the employer is in a lump sum and covers a period of more than one week, such amount shall be allocated to the weeks in the period on a pro rata basis. . . .” That provision in the North Carolina statute did not exist in the original North Carolina Employment Security Act adopted in 1936, but was added to the North Carolina statute by an Act of 1955 (see Session Laws of North Carolina for 1955, Chap. 385, § 8). The Arkansas Employment Security Act, as found in § 81-1106 Ark. Stats., does not have any such provision in it as does the North Carolina statute which was construed in the Tyson case. So I think the Majority is applying, by judicial legislation, tbe North Carolina rule which that State adopted by legislation. It might be a good way to figure out the period of disqualification, but it should be done by the Legislature and not by this Court.

The question before us was whether the receipt of severance pay under the “SUB” contract was the same as dismissal pay, and whether such severance pay was disqualifying from unemployment compensation benefits allowed by our statute. I reach the conclusion that severance pay is the same as dismissal pay, but it is not disqualifying because we have no statute which indicates a proration calculation method as the Majority has done.

Therefore, I would affirm the judgment of the Circuit Court.


author: Paul Ward, Associate Justice.

text:
    Peden v. Peden.
    5-2462
    350 S. W. 2d 509
    Opinion delivered October 23, 1961.

      Williams & Gardner, for appellant.

      L. A. Williams and Wiley W. Bean, for appellee-
   Paul Ward, Associate Justice.

This litigation between father and son involves a partnership accounting in chancery, and also a suit by the father on a note in circuit court. The two suits were consolidated in the chancery court. The son, appellant herein, prosecutes this appeal.

The issues involved will be more easily understood from a brief statement of facts and events preceding the litigation. In 1942 appellee, Sam Peden, and Leland King formed a partnership lumber company. Among other things the company manufactured ammunition boxes for the government. Later appellant, who was released from the Army, acquired 1/3 of his father’s interest. This partnership will be referred to as the Peden-King partnership. That partnership, apparently a prosperous one, was dissolved in 1945 by agreement of all interested parties. The dissolution, put in writing and signed by all parties (including appellant), revealed considerable cash assets of which $11,927.73 belonged to the father (appellee) and $18,724.68 belonged to the son (appellant).

Sometime after the Peden-King partnership was dissolved (as above set out) another partnership lumber company was organized, composed of appellant, appellee, Leon Peden, and J. E. Harris. (Harris later sold to appellee.) This will be referred to as the Peden Lumber Company. In order to pay for his 1/4 interest in the new company, appellee executed his note in the amount of $6,071.05 to his father.

On August 26, 1952, Sam Peden filed suit in circuit court against his son, W. C. Peden, to collect the balance due together with interest on the note heretofore mentioned. Judgment was also sought for $1,050 for house rent and $35.06 for water and gas bill.

On September 9, 1952, Sam Peden and Leon Peden filed a suit in chancery court against W. C. Peden (appellant) to dissolve the Peden Lumber Company, and to have a receiver appointed pending final disposition. It was alleged, among other things, that Sam Peden owned a 1/2 interest and W. C. and Leon owned a 1/4 each; that W. C. had failed to cooperate and had withheld funds belonging to the company, and; that the company would deteriorate unless dissolved.

On December 15, 1952, appellant filed an answer in the chancery case (and on same day filed an answer in the circuit court case wherein he asked for a consolidation) in which he also asked for a dissolution of the Peden Lumber Company, and alleged substantially as follows: for 39 months the plaintiffs refused to work, causing him a loss of $2,500; plaintiffs sold equipment causing him a loss of $2,000; they sold timber at a loss to him of $500. Appellant asked for a recovery of $10,500 for loss of profits and $5,000 for his 1/4 in the partnership. In appellant’s answer in the circuit court, he admitted executing the said note to appellee for $6,071.05, but that it had been paid in full from partnership profits.

Then on December 28, 1955 after the cases had been consolidated, and after the receiver had been appointed, appellant filed an amendment to his answer in which he asked to reopen the settlement in the Peden-King partnership which, as before stated, was dissolved by agreement in 1945.

The record discloses that an accountant examined and reported on the financial status of the Peden Lumber Company’s books, and that a Special Master was appointed, agreeable to both parties, to hear the testimony. Much testimony and voluminous exhibits were introduced in evidence.

The Master, after several hearings, found:

(a) Appellant was indebted to appellee on the note (after deducting payments and counting interest to August 4, 1960) in the sum of $6,178.54, in the sum of $1,050 for rent, and $35.06 for water and gas bill.

(b) In regard to the dissolution of the Peden Lumber Company, there was owing (after deducting all expenses of the receivership) to Sam Peden the sum of $9,741.51 and to W. C. Peden the sum of $1,469.48. This accounting did not include land belonging to partnership. A decree was entered in accordance with the above, fixing a lien on appellant’s 1/4 interest in the land to secure payment of the amount due on the note.

Certain exceptions were filed by appellant to the Master’s report and disposed of by the trial court, but they blend and will be discussed, where pertinent, along with the points set out for reversal.

Appellant relies on three separate assignments of error set out, in substance, in the following order: (1) Neither the statutes of limitations nor laches barred appellant from an accounting of the Peden-King partnership; (2) Appellant does not owe appellee anything on the note, and; (3) Appellant was entitled to damages.

(1) Statutes of Limitations and Laches. This point arose as an incident to appellee’s first exception to the Master’s report. The Master did not consider the statutes of limitations and laches because he conceived it to be a legal question for the Chancellor’s decision. The Chancellor then held that appellant could not reopen the dissolution and settlement of the Peden-King partnership because of the said statutes and also because of laches, and we think the Chancellor was correct. The partnership was dissolved in 1945. Appellant made no objection to the accounting and failed to assert any supposed rights based on the same until he filed his amended answer on December 28, 1955 — a lapse of 10 years. If the partnership was based on an oral agreement (and there was testimony to this effect), then the three years statute of limitations would apply. If the partnership was based on a written instrument the five years statute would apply. See: Williams v. Walker, 148 Ark. 49, 229 S. W. 28; Luke v. Rhodes, 117 Ark. 600, 176 S. W. 111, and Booth v. Hayde, 228 Ark. 244, 307 S. W. 2d 227.

It is appellant’s further contention, however, that laches and not the statutes should apply. This argument is based on the contention that a trust relationship between him and appellee was created because appellee came into possession of his money ($18,724.68) and did not account for it. For several reasons, hereafter set out, we cannot agree with this argument and contention.

In the. first place there is a sharp conflict in testimony as to whether appellee paid appellant all of the money due him from the Peden-King partnership. However, even if it be conceded that appellant did not receive all money due him, he still is barred under the facts in this case as the Chancellor found them to be. It is (as must be, to prevail) appellant’s contention that he did not know (and had no cause to suspect) until 1958 he received less than what was due him from the PedenKing partnership. This contention on the part of appellant is difficult to sustain in the face of the undisputed facts revealed in the record. The dissolution of the Peden-King partnership in 1945 was reduced to writing and signed by appellant, and it showed exactly what was due him. The Chancellor’s finding that there was no fraud or concealment practiced by appellee is supported by the weight of the testimony. It clearly appears that appellant, a man over thirty years of age at the time, was in possession of sufficient facts about the dissolution to put him on inquiry as to any undisclosed material facts if any existed. In the case of Smith v. Olin Industries, Inc., 224 Ark. 606, 275 S. W. 2d 439, this court quoted with approval the following statement:

“It is well settled that when the question of laches is in issue the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known to him were such as to put the duty of inquiry upon a man of ordinary intelligence.”

(2) It is here insisted that the trial court erred iii' holding appellant indebted in the sum of $7,263. The record discloses that this is the exact amount the court found due on the note previously mentioned plus rent and the gas and water bill. The record discloses ample evidence to support this finding. In fact it appears appellant’s only defense is that this amount is offset by what he had coming to him from the Peden-King partnership. This defense was disposed of in our previous discussion under point (1) above.

(3) A careful reading of the record convinces us the trial court was correct in dismissing appellant’s claim for damages. The several grounds on which damages were predicated have been heretofore set out. It would unduly lengthen this opinion for no useful purpose to set forth the testimony tending to support and to refute appellant’s claim. We have read it carefully and are satisfied that the Chancellor’s finding on this point is well supported by the testimony. In fact we fail to get the impression that appellant was seriously pressing this claim. At one point in the trial appellant made this statement, shown on page 252 of the record: “I am not claiming for damages. . . .

From all the above we conclude that the decree of the trial court must be, and it is hereby, affirmed.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Stricklin v. Mitchell.
    5-2482
    350 S. W. 2d 319
    Opinion delivered October 23, 1961.

      Joe Holmes, for appellant.

      Max M. Smith, for appellee.
   Jim Johnson, Associate Justice.

This case involves the setting aside of a deed because of mental incapacity of the grantor.

The property in question was conveyed on July 12, 1944, from Bev Graves to his then wife Ethel by warranty deed. The deed was filed for record August 26, 1944. Bev Graves died September 11, 1945. The widow occupied the land until her death on March 17, 1960. The plaintiffs, appellees here, are the children of the deceased Bev Graves by a former marriage; they on July 7, 1960, filed their complaint in equity to set aside the deed from Bev Graves to his wife alleging grounds of lack of mental capacity to execute the deed; and further, that the grantor was an insane person at the time the deed was executed and was never at any time thereafter capable of ratifying the deed. The defendants, appellants here, are the collateral heirs and descendants of Ethel Graves, deceased. From a decree of the trial court setting aside the deed, appellants prosecute this appeal.

For reversal appellants rely upon three points. The points will be discussed in the order raised.

First, appellants contend that appellees have failed to show that Bev Graves did not have sufficient mental capacity to execute the deed on the day that it was executed. To support their contention, appellants cite Cullins v. Webb, 208 Ark. 631, 187 S. W. 2d 173, which states in part as follows:

“This case was tried more than fifteen years after the execution of the deeds which appellant seeks to set aside. It is not surprising, therefore, that the testimony of most of the witnesses regarding the. mental capacity of James G. Webb on May 21, 1928, is somewhat vague and indefinite. While there was testimony to indicate the incapacity of Webb several weeks after the execution of the deeds in question, a preponderance of the evidence tends to support the trial court’s conclusion of his mental capacity at the time the deeds were actually executed.”

In the instant case the testimony is specific and definite regarding Bev Graves’ mental capacity at the time of execution, of .the deed. The witnesses testified that they saw him at frequent intervals up to the time of his death except when he was in the State Hospital.

The testimony is undisputed that Bev Graves started losing his mind soon after his son and his daughter-in-law burned to death in 1939. His condition grew progressively worse until his wife Ethel would have to look after him like he was a small child. He would wander off and get lost, wander around at night necessitating his wife’s locking him in his room; she would fix his plate for him and feed him as if he were a child. He didn’t know his own children, poured coal oil in his corn cob pipe, attempted to feed the mule stove wood, couldn’t resist taking hold of his daughter’s hair which he called “stuff” and spent considerable time trying to pin house flies to the wall with his fingers. Mr. Graves was confined to the State Hospital in 1945 where he remained until his death on September 11th.

The proof is clear that Mr. Graves was completely disoriented in 1942, 1943, and 1944, and according to the evidence of Dr. Barbara Barksdale, Senile Psychosis, Confused Type, such as existed in this case, would have rendered Mr. Graves incapacitated in 1944, the year the deed is shown to have been executed.

Q.The Court: “You say this is not a disease that has lucid intervals?”
A. Dr. Barksdale: “No, sir, it is a gradual thing that gets worse as time goes on.”

In Cullins v. Webb, supra, this Court further said:

“Where Chancery cases are tried de novo, findings of fact made by the Court must be. allowed to stand unless they are clearly against the preponderance of the evidence.”

From the undisputed evidence set out above, we cannot say that the learned Chancellor’s findings are against the preponderance of the evidence.

Appellants’ second point contends that the action should have been barred by laches since the suit was brought sixteen years after the execution of the deed. In Sanders v. Flenniken, 180 Ark. 303, 21 S. W. 2d 847, this Court held that mere lapse of time before bringing suit, without change of circumstances or in the relation of the parties will not constitute laches. Not only must there have been unnecessary delay, but it must appear that, by reason of delay, some, change has occurred in the condition or relation of the parties to the property which would make it inequitable to enforce the claim.

In the case at bar the only thing that could have brought about a change of relationship of all the parties was the death of Ethel Graves. Ethel Graves died March 17, 1960; this action ivas brought on July 7, 1960, therefore it is apparent that as soon as it was known that the heirs of Ethel Graves would claim the property, the heirs of Bev Graves filed their suit. There is no showing in the record that injury or prejudice to the appellants occurred as a result of the delay complained of. See Cullins v. Webb, 207 Ark. 407, 180 S. W. 2d 835.

Appellants ’ last point contends that the hospital records introduced were inadmissible and that no witness ivas given to properly prove or lay any foundation for the introduction of the records. The rule is Avell established that in Chancery appeals we eliminate incompetent evidence that was duly objected to in the trial court, and we decide the case here on the remaining competent evidence. Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495. Applying this rule to the case at bar, on trial ele novo, we find.that there is an abundance of competent evidence, as indicated under point 1 above, to support the Chancellor’s findings without considering the hospital records.

Affirmed.


author: Neill Bohlinger, Associate Justice.

text:
    City of Little Rock v. Tucker.
    5-2484
    350 S. W. 2d 531
    Opinion delivered October 23, 1961.

      Joseph C. Kemp and Jack Yowng, for appellant.

      Martin, Dodds <£ Kidd, for appellee.
   Neill Bohlinger, Associate Justice.

This case comes to us through the Pulaski Circuit Court which reversed a finding of the Little Bock Civil Service Commission under which the appellee, Lucille Edith Tucker, was discharged from her position as account-clerk in the Finance Department of the City of Little Bock.

The record reflects that the appellee began work as an acconnt-clerk in the Finance Department of the City of Little Rock on February 8, 1959. She thereafter completed a six-month probationary period but on September 10, 1959, approximately one month after the probationary period, she was notified orally that her services with the City would be terminated on September 18th. On September 21st the head of the Finance Department wrote a letter notifying the appellee that she was terminated as of September 18th for the reason that her work was unsatisfactory.

Appellee requested and was granted a hearing-before the Civil Service Commission and on October 5, 1959, the Civil Service Commission found that the appellee’s work was in fact unsatisfactory and her discharge was upheld.

Appellee then appealed the finding of the Civil Service Commission and a hearing was had before Pulaski Circuit Court on January 13, 1960, which resulted in a finding- reversing the Civil Service Commission. The City of Little Rock, the appellant herein, has appealed that finding and the case is presented here.

The object of Civil Service is best stated in the preamble to Act 339 of the Acts of 1939 as follows:

“Whereas, it is for the best interest of the public that persons engaged in the service of such cities be employed and discharged according to their merits and the necessity of the city for their services and not according- to political expediency or personal favoritism:”.

The Act, therefore, may be viewed as one which sought to serve the best interest of the city through the employment of qualified persons and to accomplish this end it removed the employees from the uncertain winds of political preferment and the frustrations of personal whims of those in authority. To obtain these ends the employee has the right to have his allegation of unjust discharge reviewed by the Civil Service Commission and if necessary, by the circuit court and thereafter bring it to the attention of this court.

The circuit court reviews the question de novo on. the record before the Civil Service Commission and any additional competent testimony presented to it and on an appeal from the decision of the circuit court, the matter is presented here de novo on the entire record and is viewed as chancery cases are considered here.

The ease of the City of Little Rock v. Newcomb, 219 Ark. 74, 239 S. W. 2d 750, makes this abundantly clear.

“We conclude that the Legislature in enacting Act 326, [§ 2 of Act 326 of 1949 (Ark. Stats., § 19-10320)], intended to provide for a de novo hearing by the circuit court on the record before the Commission and any additional competent testimony that. either party might desire to introduce; and that this court should hear the matter de novo on the entire record before the circuit court, as in chancery cases. While this necessarily means that neither the circuit court nor this court, on appeal, is bound by the findings and conclusions of the trial tribunal, it does not mean that due deference is not to be accorded the trial tribunal’s finding as to the preponderance of the evidence where the testimony is hopelessly conflicting, or evenly balanced. Although we try chancery cases de novo, we have frequently said that the judgment of the chancellor on the question of the preponderance of the evidence will be considered as persuasive when the evidence is conflicting and evenly poised, or nearly so. Greenlee v. Rowland, 85 Ark. 101, 107 S. W. 193; Benton v. Southern Engine & Boiler Works, 101 Ark. 493, 142 S. W. 1138; Civil Service Commission of Van Buren, Arkansas v. Matlock, supra [206 Ark. 1145, 178 S.W. 2d 662].”

Since we consider this case “as in chancery eases,” de novo, the sole question presented is whether or not the preponderance of the evidence appears to be against the finding of the trial court. In a case tried de novo here,

“ * * * unless the preponderance of the evidence appears to be against the chancellor’s findings we must affirm.’’ See: Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686; Turnage v. Matkin, 227 Ark. 528, 299 S. W. 2d 831.
"* * * the judgment of the chancellor on the question of the preponderance of the evidence will he considered as persuasive when the evidence is conflicting, and evenly poised, or nearly so.” City of Little Rock v. Newcomb, supra; Turnage v. Matkin, 227 Ark. 528, 299 S. W. 2d 831.

Viewing the testimony in that light, we find that the appellee served a probationary period of six months and we must assume that she was found competent because she continued in her employment after the probationary period. After this six-month period, appellee’s supervisor testified of her attitude toward her work and comments to some extent on her indifferent attitude on Monday morning and he attributes, without proving, that her indifferent attitude was perhaps due to excess on the weekends, and called attention to a three-day absence. The question of appellee’s addiction to strong drink was never established by any witness. The strongest evidence in behalf of the supervisor’s allegation was the fact that appellee’s son said once, over the telephone, that his mother was in bed and had been drinking; that on another occasion the appellee had asked a man connected with the traffic department of the City of Little Rock for some medication to take the scent of liquor off her breath. All of these things are denied by the appellee and no person testified as to any effects of liquor in the appellee’s discharge of her duty or to her conduct on the job.

There is evidence by the supervisor that in making up payroll sheets the appellee made numerous errors which necessitated extra care on the part of the supervisor and fellow employees who worked with the appellee. It appears that the appellee and other employees worked on the same sheets and no person points out which errors, if any, were the work or omissions of the appellee and which were the work of her co-workers.

We have reviewed the record with care and we are unable to say that the preponderance of the evidence is against thé finding of the trial court and unless we can so do, this case must be affirmed. It is so ordered.


author: Carleton Harris, Chief Justice.

text:
    Fisher v. Jonesboro Transfer & Storage Co.
    5-2486
    350 S. W. 2d 516
    Opinion delivered October 30, 1961.

      E. G. Partlow, Jr., Penix & Penix, for appellant.

      Louis Tarlowshi, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Harold Fisher, d/b/a Fisher Moving and Storage Company, is engaged in the household moving and storage business in Blytheville. He was originally given authority to operate in Mississippi County only. Later, in 1957, his authority was extended. In 1958, a further extension in his operating authority was applied for, but denied. Thereafter, in May, 1960, the application from which stems this litigation was filed, wherein appellant sought authority from the Arkansas Commerce Commission, to operate “between points and places.in that part of Arkansas east of U. S. Highway 63 to and from any point in the state of Arkansas.” Protests to the granting of the application were made by Jonesboro Transfer and Storage Company of Jonesboro, and Paragonld Transfer and Storage Company of Paragould, and the owners of these two companies appeared at the hearing. Though not filing a formal protest, Mrs. Florence Allison of Allison Transfer Company testified in opposition to the granting of the permit. At the conclusion of the hearing, the Commission rendered its findings as follows :

“1. Applicant is fit, willing and able properly to perform the proposed service and to conform to the requirements of the motor carrier act and to the rules and regulations of the Commission.
2. The present and future public convenience and necessity require the proposed service.
3. That the granting of the application will not materially affect the operation of other carriers.
4. That the application should be granted.”

In accordance therewith, an order was entered authorizing Fisher to operate “between points and places in that part of Arkansas east of U. S. Highway 63 on the one hand, and on the other, points and places in the State of Arkansas.” The Commission’s order was appealed to the Circuit Court of Pulaski County. On hearing, that court held the order of the Commission to be contrary to a preponderance of the evidence, insufficient to sustain the findings and order of the Commission, and entered its order directing the Commission to set aside the order made, and to enter an order denying the application in its entirety. From such judgment, comes this appeal.

Fisher testified that he has sufficient equipment, in good condition, warehouse facilities, and that he owns one building and leases another. The witness stated that he had loading and parking facilities, and that since the time of his last application, Blytheville’s population had increased. He said that his warehouses were practically full of stored household goods; that his business was good, but that he was forced to reject calls each week because of his limited authority; that these calls were referred to carriers who were authorized to operate in the territory from which the requests came. Fisher testified that he had received numerous calls from ‘ ‘ that area I have asked for here. I have had calls from all of that part of the country.” He stated that, if necessary, he would increase his equipment to handle the additional business that would be afforded if his application were granted. Fisher testified there were five licensed carriers in Blytheville, but that all did not have offices or terminals. He stated that Allison had a telephone and an agent in Blytheville; that he did not refer any calls to Allison, but did refer some to Wunderlick and Beckham, other operators of that city. The witness testified that Allison did not have “good” equipment. He stated that all carriers in Mississippi County were operating under restricted authority except Allison. On cross-examination, Fisher said that he was unable to state the names of any particular persons who called him desiring household goods to be moved to points beyond his authority.

W. W. Beckham, also engaged in the moving and storage business, testified that he had received calls from beyond his territory which he was unable to handle, and that he was of the opinion that the need existed for the extension of authority to another carrier in that area. He stated that because of his health, he was not interested in expanding his business. Beckham, father-in-law of Fisher, likewise was unable to give specific information as to where the calls came from. Lonnie Boyston, engaged in the fire and casualty insurance business in Blytheville, and who handled Fisher’s insurance business, testified that the population in Blytheville had consistently increased, and was higher by some 3,500 than in 1956. He stated that he knew people were moving in and out of Blytheville, particularly from the air base. Boyston admitted that the other licensed carriers could be used, but that due to “heavy business’ - in that line, those desiring such service “may have to wait awhile.” The witness was not familiar with Allison’s operation, nor did he have personal knowledge that'prompt service could not be given. He stated that he needed' moving service during the year,-which was handled by Mr: Beck-ham ; that he also had- need of service in December, 1959, but did not remember which hauler he used; that service each time was satisfactory. Neither appellant, nor his witnesses, testified that proper service could not be obtained under facilities afforded by presently authorized carriers.

Miss Gladys Montague, owner and manager of Jonesboro Transfer and Storage Company, testified that she was authorized to service all points and places in Arkansas, including the territory covered by Fisher’s application. Through stipulation, it was established that this concern carried advertising in the telephone directories of twenty-two cities and towns. Miss Montague stated that she employed three van drivers, one man who attended to office work, one salesman, one repairman and mechanic. She testified relative to the amount of equipment owned by the company and stated that two vans and a stake truck were on the lot in Jonesboro (at the time of the hearing) because of lack of business. She stated her concern would be willing to handle calls referred by Fisher, Beckham, or anyone else, and that she had not received any calls from Fisher or Beckham; that she had never refused any service; that she was able to increase her equipment if business required it, and would do so. Exhibits showing shipments in the territory, in which appellant seeks a permit, were offered for 1959 and January through June, 1960.

Vivian Clark testified on behalf of Paragould Transfer and Storage Company, protesting the granting of the application. She stated there was not enough business, and it would be detrimental to her company if Fisher were granted the permit. Mrs. Florence Allison of Allison Transfer Company testified that this concern has terminals or offices in Little Rock and Blytheville, having been located in the latter city since October, 1959; that the company maintains a tractor trailer unit and a bob truck most of the time in Blytheville and advertises for business. She said that Allison keeps six units in Little Rock, and if an order is received from Blytheville requiring more than one piece of equipment, additional units are sent from the capital city. According to the witness, the company maintains a large warehouse in Blytheville, and is willing to add additional equipment for use there if it becomes necessary.

We agree with the Circuit Court that the evidence on behalf of Fisher was insufficient to sustain the granting of the application.

Both appellant and appellee cite the case of Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907, wherein we said that a certificate should be granted “* * * if public convenience and necessity be shown, even if there be already existing service, provided the Commission finds either:

a. that the present service is inadequate; or

b. that additional service would benefit the general public; or

c. that the existing carrier has been given an opportunity to furnish additional service as may be required.” In the same case, we stated that the desire of a new applicant for a certificate is relatively a minor matter for the consideration of the Commission. Appellant more or less concedes that he cannot obtain a permit under provisions “a” and “c” mentioned above; at least, no argument is directed to a contention that present service is inadequate; nor is there any proof that the service is inadequate, i. e., persons requiring moving accommodations have been inconvenienced and delayed in obtaining: same because of insufficient moving; facilities. Likewise, there is no evidence that existing carriers have been given the opportunity to furnish any additional service, even if same were required. Appellant stakes his case on the principal enunciated in “b”, that additional service would benefit the general public. But this assertion, in our view from the record before us, must be predicated largely on surmise, or a general supposition that “the more carriers added, the more benefit to the general public.” Certainly, there is no evidence that establishes additional benefits to the public if Fisher’s permit is granted. The territory sought by appellant includes Mammoth Spring, Hardy, Imboden, Black Bock, Walnut Bidge, Jonesboro, Marked Tree, Tyronza, Turrell, West Memphis, Blytheville, Lepanto, Monett, Paragould, Corning, Piggott, Sector, Leach-ville, Lake City, Luxora, Osceola, Pocahontas, Wilson, Hoxie, Trumann, and perhaps others. Despite the size of the territory, appellant brought forward only one witness on behalf of the general public, his insurance agent, and this witness, who had no present need for moving facilities, had received satisfactory service on the two occasions when he required it. Appellant argues that the size of Blytheville justifies a local mover with statewide authority. Of course, this is not the criterion for granting additional service; in addition, it appears that such a concern, possessing the authority sought by appellant, is already doing business in Blytheville. It is true that Mrs. Allison lives at Little Bock, but a branch, or terminal, office is maintained in Blytheville. This witness testified that the terminal office has a telephone, and that eight employees are presently employed on a permanent basis. She further stated that a tractor trailer unit and bob truck are kept in Blytheville, and that the six units in Little Bock are used interchangeably between the two cities.

We are of the opinion, and find, that the evidence falls short of establishing that the proposed additional service, to be furnished by Fisher, would benefit the general public. In accordance with this finding, the judgment of the Circuit Court is affirmed.

       Appellant was authorized to operate between points and places in Mississippi County, that part of Craighead County on and east of Arkansas Highway 135, that part of Poinsett County east of U. S. Highway 63 and that part of Crittendon County north of Arkansas Highway 42 and U. S. Highway 61; and between points and places in the said territory on the one hand and on the other, points and places in Arkansas bounded on the west by U. S. Highway 67 and on the south by U. S. Highway 79, Arkansas Highway 11 and U. S. Highway 70, and to serve Helena, Arkansas, as an off-route point.

       “On the one hand, and on the other” means every shipment mnstorig'inate or be destined to the described territory.

       Appellant’s facilities and ability to handle increased business are not questioned.