text:
    Reverend N. W. WILLIAMS, Pastor, Mrs. Mamie NELSON, Mr. Lucius CHILDS et al v. James CUPP, Johnny MASSEY, Carthur JORDAN et al
    CA 79-262
    597 S.W. 2d 855
    Court of Appeals of Arkansas
    Opinion delivered April 16, 1980
    Released for publication May 7, 1980

      Leon N. Jamison, for appellants.

      Dale, Felton and Hamilton Ltd., for appellees.
   Marian F. Penix, Judge.

This case arose from a controversy among members of the Second Baptist Church in Marianna, Arkansas. At a general church meeting on January 21,1979, one of the appellants, Rev. N. W. Williams, was removed as Pastor of the church. At the January 21 meeting a motion was made, seconded and voted upon to declare the pulpit vacant. Subsequently, the Deacons of the church had all the locks to the doors on the church changed. This was to prevent Rev. N. W. Williams and other members from entering the church property at times other than established hours of worship. The Appellants petitioned the Court for equitable relief. They asked for a permanent injunction enjoining the appellees from preventing the appellants from using the church building and for a temporary restraining order enjoining the appellees from preventing appellants from “making use of church facilities to the end that plaintiffs (appellants) will no longer suffer irreparable harm as a consequence of the unjustified, arbitrary and capricious acts of the defendants (appellees).” They further asked that the defendants (appellees) and the First National Bank of Marianna, Arkansas be temporarily and permanently enjoined from making or authorizing any withdrawals from the bank account of the Second Baptist Church of Marianna, Arkansas. The Court granted the temporary restraining order. The appellants posted a $350 bond.

Following a hearing on February 20, the Court found the congregational meeting held on January 21, 1979 to be a valid meeting and the pulpit to be vacant. He dismissed the complaint by plaintiffs (appellants) and dissolved the temporary restraining order. The plaintiffs appeal.

The appellants allege error in the finding the pulpit had been declared vacant at the January 21, 1979 business meeting of Second Baptist Church. They also allege error in the Court’s not ordering an election with regard to the retention of the pastor.

The appellants attempted to offer evidence to establish there was never a valid note at the January 21 meeting. They contended the congregation had voted to table the question of election of officers and therefore members left the meeting not expecting any further action to be taken that day on the business of removing the pastor.

The appellants rely on Elston v. Wilborn, 208 Ark. 377, 186 S.W. 2d 662 (1945). There the Chancery Court had called an election to determine who the trustees of a church were. In reversing, the Supreme Court found such election could not determine which faction was entitled to control of the church property because the election came three years after the ejectment suit was filed. We do not find Elston, supra, to be applicable here, other than its finding that a court has the right to determine church property rights.

We find from the record conflicting testimony as to the usual procedure by which the pulpit is declared vacant.

In a memorandum opinion dated February 27, 1979 and an order dated March 30, 1979, the Court made the following determinations:

1. The court has jurisdiction in a suit involving property rights.
2. At a regular and duly called congregational meeting called by Reverend Williams, appellant, on January 21, 1979, a motion was made, seconded, and carried that the pulpit be declared vacant. Rev. Williams ruled it “out of order” and refused to entertain it. A majority of the congregation present demanded the motion be presented. The chairman of the Board of Deacons entertained the motion and it carried by a vote of 18 to 8.
3. This group always considered “the majority” to mean a majority of those present and voting.
4. In congregationally governed religious societies it is the will of the majority of the congregation, not that of the pastor, which governs business affairs and it should be more particularily so in those matters involving that pulpit occupied by the pastor.
5. As a truly self governing body, the congregation had the right to overrule the pastor.
6. The minutes reflect the pastor moved for certain recommendations for offices of “clerk, treasurer, etc”. It did not include “pastor”. It was this motion and the election of officers which was tabled.
7. The meeting of January 21 was a valid congregational meeting.
8. The overruling of the pastor’s action was a proper exercise of congregational government and the declaration of the majority of the congregation then present that the pulpit was vacant was a valid act.
9. Reverend Williams was not authorized to call the February 5 meeting. No deacons were present, the clerk was not present to record the vote, and any action taken was not agreed to by the majority of the congregation.
10. The pulpit is vacant' pursuant to action taken on January 21, 1979 and it now rests with the officials of the church to initiate the regular procedures for calling a proper person to fill that pulpit.
11. The complaint is dismissed for want of equity and the temporary restraining order is dissolved.

The Chancellor had the opportunity to view all the exhibits and to hear the testimony from the many witnesses testifying for both sides. He found from the evidence the meeting held on January 21, 1979 was a properly called meeting and the action taken to declare the pulpit vacant was proper. He determined the church property was properly in the hands of the Deacons.

We do not find the Chancellor’s decision to be against the preponderance of the evidence. Therefore, we must affirm his decision. Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978); Minton v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974); Massey v. Price, 252 Ark. 617, 480 S.W. 2d 337 (1972); Marine Mart, Inc. v. Pearce, 252 Ark. 601, 480 S.W. 2d 133 (1972).

Affirmed.

Howard. J., not participating.


source: Caselaw Access Project

author: George Howard, Jr., Judge.

license: Public Domain

text:
    C. J. HORNER, INC. v. Billy MOORE
    CA 79-252
    597 S.W. 2d 857
    Court of Appeals of Arkansas
    Opinion delivered April 16, 1980
    Released for publication May 7, 1980

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellant.

      Ted Boswell, P.A., by: George D. Ellis, for appellee.
   George Howard, Jr., Judge.

At the request of appellee, a concrete finisher, the trial judge gave the following instruction in appellee’s action for damages for personal injuries sustained when the “pouring chute”, attached to the rear of appellant’s ready-mix cement truck, struck appellee, who was constructing a cement driveway, as the truck moved first backward and then forward, without prior warning from either a mechanical alarm system or the aid of a signalman:

‘There was in force in the state of Arkansas at the time of the occurrence a regulation which provided:
No employer shall use any motor vehicle that operates within an off-highway job site not open to public traffic and having an obstructed view to the rear, unless
(a) The vehicle has a reverse signal alarm audible above the surrounding noise level, or
(b) The vehicle is backed up only when an observer signals that it is safe to do so.
A violation of this regulation, although not necessarily negligence, is evidence of negligence to be considered by you along with all the other facts and circumstances in the case.’

It is undisputed that appellant’s ready-mix cement truck had an obstructed view to the rear; and the truck did not have an alarm system, nor was there a signalman on duty to aid the driver in moving the vehicle safely.

For reversal, appellant argues that the trial court erred in giving plaintiff’s requested instruction number 14 and, therefore, the jury’s verdict of $27,500.00 in behalf of appellee cannot stand. The thrust of appellant’s argument may be summarized as: The specific regulation upon which appellee’s requested instruction is predicated — 29 C.F.R. § 1926.601 (a)(b)(4) — does not apply to a ready-mix cement truck which operates on the public streets and highways as opposed to a motor vehicle that operates “exclusively on off-highway job sites not open to public traffic . . . e.g., bulldozers, fork-lifts used in warehouse storage, portable cranes, and the like.”

Section 1926.601, in relevant part, provides:

(a) Coverage. Motor vehicles as covered by this part are those vehicles that operate within an off-highway jobsite, not open to public traffic. The requirements of this section do not apply to equipment for which rules are prescribed in § 1926.602.
(b) General requirements. (1) All vehicles shall have a service brake system, an emergency brake system, and a parking brake system. These systems may use common components, and shall be maintained in operable condition.
(2)(i) Whenever visibility conditions warrant additional light, all vehicles, or combinations of vehicles, in use shall be equipped with at least two headlights and two taillights in operable conditon.
(ii) All vehicles or combination of vehicles, shall have brake lights in operable condition regardless of light conditions.
(4) No employer shall use any motor vehicle equipment having an obstructed view to the rear unless:
(i) The vehicle has a reverse signal alarm audible above the surrounding noise level or:
(ii) The vehicle is backed up only when an observer signals that it is safe to do so. (Emphasis added).

The caption or title of § 1926.601 is plainly designated “Motor vehicles.” The section also requires vehicles governed by the section, to have a service brake system, an emergency brake system, a parking brake system; and vehicles with cabs are required to be equipped with windshield and power.

wipers, brake lights in operable condition, equipped with at least two taillights; and vehicles used to transport employees shall have seat firmly secured and adequate for the number of employees to be carried. Seat belts are required to be installed in all vehicles covered and must meet the standards designated by the United States Department of Transportation.

We hold that appellant’s ready-mix cement truck falls within the scope and coverage of § 1926.601. It is common knowledge that ready-mix cement trucks operate on off-highway construction sites not open to public traffic; and the fact that they operate on the public streets and highways as well does not really matter.

We are persuaded that the trial court did not err in giving plaintiffs requested instruction number 14.

Affirmed.

       Safety and Health regulations are standards promulgated by the United States Secretary of Labor designed to eliminate unsanitary, hazardous, or dangerous conditions in work surroundings. See: Occupational Safety and Health Act of 1970; 29 C.F.R. § 1926.601; Dunn v. Brimer, 259 Ark. 855, 537 S.W. 2d 164 (1976).

       Section 1926.106 provides:
      (a) Earthmoving equipment; General (1) These rules apply to the following types of earthmoving equipment: scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders, agricultural and industrial tractors, and similar equipment. . . .


text:
    Cecil E. MENSCH v. Velna Lucille MENSCH
    CA 79-282
    597 S.W. 2d 859
    Court of Appeals of Arkansas
    Opinion delivered April 16, 1980
    Released for publication May 7, 1980

      Malcolm Smith, for appellant.

      Macom, Moorhead & Green, by: J. W. Green, Jr., for appellee.
   George Howard, Jr., Judge.

On April 10, 1975, appellee was awarded an absolute divorce from appellant. The decree incorporated, by reference, a property settlement and agreement made by the parties on February 28, 1975, three days before the divorce action was filed.

The “Property Settlement and Agreement” provided that appellant should pay to his former wife $100.00 per month as alimony until such time as the parties’ daughter, whom appellee was awarded custody, reached her 18th birthday, at which time, the alimony payment would increase to $200.00 per month.

Between August 26, 1976, and December 13, 1978, appellant defaulted in his payments and he was cited to show cause why he should not be held in contempt of court. While appellant paid the arrearage, or a substantial part of it, in order to avoid incarceration in the county jail, appellant, on June 14, 1979, by oral motion, later reduced to writing with leave of the court, challenged the validity of the alimony provision incorporated in the divorce decree on the theory that Ark. Stat. Ann. § 34-1211 (Repl. 1962), is unconstitutional in light of Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102 (1979) and Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979).

The trial court overruled appellant’s constitutional challenge.

Ark. Stat. Ann. § 34-1211 provides:

“When a decree shall be entered, the court shall make such order touching the alimony of the wife and care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable. ...” (Emphasis supplied)

The thrust of appellant’s argument may be summarized as: The receipt of alimony by a wife, or a former wife, in a divorce decree is governed by statute; that Ark. Stat. Ann. § 34-1211, on its face, is gender-based and, therefore, is violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution. Orr v. Orr, supra; Hatcher v. Hatcher, supra. In other words, appellant argues that § 34-1211 confers certain rights on women while denying men reciprocal or mutual rights.

We hold that appellant’s belated argument is not impressive for the case may be disposed of on independent state grounds without elevating the matter to the lofty status of constitutional dimension.

First, the “Property Settlement and Agreement” was entered into between the parties before the parties’ divorce action was commenced. This was an independent contract between two private individuals which was ultimately incorporated in the divorce decree and approved by the court. While the contract is enforceable in a court of law, it does not merge into the court’s award and consequently, is not subject to modification by the court. Armstrong v. Armstrong, 248 Ark. 835, 454 S.W. 2d 660.

Secondly, the divorce decree became final on April 10, 1975; appellant took immediate steps to comply with the provisions of the agreement; the issue asserted by appellant was raised for the first time on June 14, 1979, during a show cause proceeding. It is plain that appellant did not raise nor pursue the constitutional issue with diligence. Moreover, the matter is res judicata. Boyles v. Boyles, 268 Ark. 120, 594 S.W. 2d 17 (1980); Schmidt v. Schmidt, 268 Ark. 382, 596 S.W. 2d 690, (1980).

Thirdly, the “Property Settlement and Agreement” states:

“That for and in consideration of the mutual covenants and agreements herein contained and for the purpose of settling fully all the property rights of the parties in this proceeding, defendant does hereby agree to pay to plaintiff as alimony the sum of $100.00 per month until the 18th birthday of Yvon Mensch; that upon the 18th birthday of Yvon Mensch said alimony payments shall be increased to $200.00 per month to be paid by defendant to plaintiff for so long as she shall remain unmarried; at such time as plaintiff should remarry all alimony shall cease.”

It is clear that the alimony payment, while characterized as “alimony”, was not only pivotal in the division of property rights between the parties, but was relevant in determining reasonable support required of appellant for his minor child in appellee’s custody.

Affirmed.


author: David Newbern, Judge.

text:
    H. F. BARRACLOUGH and Donna BARRACLOUGH v. ARKANSAS POWER AND LIGHT COMPANY
    CA 79-266
    597 S.W. 2d 861
    Court of Appeals of Arkansas
    Opinion delivered April 16, 1980
    Released for publication May 7, 1980

      Thurman Ragar, Jr., for appellants.

      House, Holmes & Jewell, by: Robert L. Robinson, Jr. and Daryl G. Raney, for appellee.
   David Newbern, Judge.

The appellants ask us to reverse a summary judgment which ruled against their ejectment claim. They had alleged that the appellee’s attempt to replace some wooden transmission poles with a steel tower was not permitted by an instrument which granted to the appellee an easement across their land. On the basis of the instrument creating the easement and verified affidavits submitted by the appellee, the court determined there was no outstanding, material issue of fact. The appellants contend no summary judgment should have been granted and the court erred in its application of the law. The court was correct in granting the judgment to the appellee.

In 1928 the appellants’ predecessors in title granted to the appellee an easement:

... to build and maintain over and upon the land hereinafter described 2 double lines of poles upon which may be strung wires for transmission of electric current, and for the transmission of telegraph and telephone messages, and for such other uses as may be necessary to the business of Grantee, its successors or assigns. The rights hereby conferred provide for the privilege and authority to enter upon said land for the purpose of constructing and building said pole line and maintenance thereof, with the right to clear and keep clear a right of way 150 feet wide and all other timber and obstructions that may interfere with the use of said line or that may or might be a hazard to the use of the same, and for the repairing or reconstructing of same at any and all times. [Emphasis added]

According to the affidavit of the appellee’s manager of lands and rights-of-way, two power transmission lines had been placed upon the property that now belongs to the appellants. They were placed within the easement sometime after its acquisition in 1928. One was supported by a series of wooden three-pole installations, and the other by a series of “metal tower structures which ran parallel to the wooden three-pole line.” It was the appellee’s attempt to replace some of the wooden poles with a metal tower which initiated this dispute.

At the appellants’ request, a real estate appraiser suggested by the appellants was asked by the appellee to determine if the replacement would in any way diminish the appellants’ property. The appraiser, whose affidavit was submitted in support of the summary judgment motion, concluded that, providing the tower lies within the right-of-way, there was “no justification for damages whatever.”

Ark. Stat. Ann., § 29-211 (e) (Supp. 1977), which was in effect when this judgment was granted, and A.R. Civ. P. 56 (e), which has superseded the statute, provide in part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Although it was not necessary that the appellants submit affidavits in opposition to those submitted by the appellee, Adams v. Hudspeth Motors, Inc., 266 Ark. 86, 587 S.W. 2d 227 (1979), it was necessary that their response refer to something in the record, such as discovery responses, raising an issue of fact. The appellants have neither abstracted their “memorandum” response to the summary judgment motion nor included it in the record. The only means we have of knowing there was anything filed in opposition to the motion is a mention of the appellants’ memorandum in the judgment. There is nothing in the record to indicate any discovery took place. Given this failure on the part of the appellants to show how they opposed the motion or, indeed, that they opposed it at all, we need only decide if a summary judgment was “appropriate,” to use the term contained in the. statute and the rule.

The question of appropriateness of the summary judgment in this case goes only to whether the evidentiary items presented by the appellee in support of the motion leave a material question of fact unanswered. See, 10 Wright and Miller, Federal Practice and Procedure, § 2739, p. 710 (1973).

A summary judgment may be based upon an unambiguous, written instrument. Brooks v. Renner & Co., 243 Ark. 226, 419 S.W. 2d 305 (1967). Resolving all doubts in favor of the appellants, no reasonable person could say the easement granted was restricted to poles, as it provided for “such other uses as may be necessary to the business” of the appellee. This conclusion is especially inescapable in view of the unrebutted affidavit showing metal towers, apparently uncomplained of, had been on the property pursuant to the easement.

The appellee, of course, could not, for example, have constructed an enclosed structure covering all of the easement. We interpret the phrase, “necessary to the business,” to be restricted to reasonable acts in support of the purpose for which the easement was obtained. The appellants cite Craig v. O’Bryan, 227 Ark. 681, 301 S.W. 2d 18 (1957), for the proposition that:

“It is a general rule, when the character of an easement is once fixed, no material alterations can be made in physical conditions which are essential to the proper enjoyment of the easement except by agreement.” [227 Ark. at 687].

That language which is quoted in the case from a legal encyclopedia seems to be a restriction on the owner of the servient estate rather than the holder of the easement grant. Perusal of the case makes it clear the language was so used. The following language was also quoted in that case, and we find it applicable here:

“It is a general rule that the owner of an easement of way may prepare, maintain, improve or repair the way in a manner and to an extent reeasonably calculated to promote the purposes for which it was created or acquired, causing neither an undue burden upon the servient estate nor an unwarranted interference with the rights of common owners or the independent rights of others. ” [227 Ark. at 686, Emphasis supplied by the Arkansas Supreme Court.]

In the context of this easement arrangement, the change from poles to tower was not an “undue burden” on the servient estate.

The appellants also contend that when the poles are taken away in preparation for erection of the tower, a partial abandonment occurs, and the appellee should not be allowed to reconstruct. Although we need not even consider this point as it was not raised below, we choose to point out that abandonment of an easement has not been shown in the absence of ashowingofan intent to abandon. Edgar v. Stubbs, 264 Ark. 918, 576 S.W. 2d 200 (1979); Ark. State Highway Comm’n v. Hampton, 244 Ark. 49, 423 S.W. 2d 567 (1968).

Thus, we conclude that the trial court was correct in granting the summary judgment, and would have been correct even if we knew for certain the appellants had raised all of these points below.

Affirmed.

Judge Hays did not participate.


author: David Newbern, Judge. George Howard, Jr., Judge,

text:
    Mary Alice McDERMOTT v. Herbert H. McADAMS, Executor
    CA 79-321
    598 S.W. 2d 427
    Court of Appeals of Arkansas
    Opinion delivered April 16, 1980
    Rehearing denied May 14, 1980
    Released for publication May 14, 1980

      Coleman, Gantt, Ramsey & Cox and Moses, McClellan, Owen & McDermott, by: Harry S. McDermott, Jr., for appellant.

      Griffin Smith and Gaston Williamson, for appellee.
   David Newbern, Judge.

This action arose in the course of probate of the estate of the late Senator John L. McClellan. It was initiated by a petition, filed with the probate court by the executor, which sought a determination of ownership of specified personal property in the possession of the Senator’s daughter, Mary Alice McDermott, and some property in her name which was in the Senator’s possession when he died. The petition asserted there was controversy whether the named items should be included in the estate. The court held the property was all part of the estate. We agree.

In 1963 the Senator created a trust of a $10,000 savings account. The trust instrument named Mary Alice McDermott as trustee and provided that other assets might be added to the corpus. The trust, by its terms, ceased to exist in 1973. During the ten year duration of the trust, the Senator transferred to “Mary Alice McDermott, Trustee,” stock certificates in Home Theaters Corporation and certificates of deposit in Capital Savings & Loan, Heber Springs Savings & Loan, and Arkansas Valley Savings and Loan. As amended, the petition sought determination of ownership, as between the estate and the appellant, of all these items as well as shares in Metropolitan National Bank. The bank stock was discovered in the Senator’s lockbox after his death. The stock consisted of several certificates issued to Mary Alice McDermott, without designation as trustee. To one of the certificates was attached to a blank stock power signed by the appellant, Mrs. McDermott. It is undisputed that Senator McClellan supplied the purchase money for each of these items.

In the course of several hearings at which only lawyers for the executor and the appellant and other beneficiaries of the estate appeared, the appellant presented her affidavit in which she contended that, upon termination of the trust, Senator McClellan gave her the items mentioned as to which she had been designated “trustee” and that he had also given her the bank stock. At some point, the bank stock had split, and the added shares were issued in her name. She stated the bank stock certificates were found in the Senator’s lockbox at his death because, at his request, she had agreed to sell some of the stock to persons selected by him. She had no recollection of signing the blank stock power.

The appellant’s affidavit showed she had “returned” the passbook of the Capital Savings & Loan account to the Senator so he could “add . . . sums and otherwise handle this for my benefit,” and at sometime the account had been converted to a certificate of deposit. She stated further that she had voted the Home Theaters stock, and those stock certificates had always been in her possession.

The appellee presented some of Senator McClellan’s personal records showing that Senator McClellan paid income tax on the interest which was credited to the accounts represented by certificates with the savings institutions mentioned above. He also reported the dividends on the bank stock as income taxable to him. In her affidavit, the appellant said she sent the bank dividend checks to the Senator so that he might pay the income taxes. She said:

It is and was my belief that the amounts represented by the checks mailed to him were used to pay income taxes, and amounts representing the balance were given to me, although no exact formal accounting was furnished.

It is thus unclear whether any money sent by the appellant to the Senator was actually returned to her, as we cannot determine the meaning of the word “given” in this context.

In the affidavit, the appellant said her father’s intent in making these substantial gifts to her was to see to it that his descendants by his first wife were adequately provided for, as he feared his spouse, now his widow, would not be as generous with them as with her own children.

1. Jurisdiction

a. Basic Authority

The appellant contends the probate court has no authority to try title to property where the contest is between the estate and a “stranger,” i.e., one who is not a beneficiary. Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W. 2d 810 (1976); Snow v. Martensen, 255 Ark. 1049, 505 S.W. 2d 20 (1974). The gist of the argument is that, while “Mary Alice McDermott” is a beneficiary of the estate, “Mary Alice McDermott, Trustee,” is not, and these cases which would permit resolutions of title questions among the beneficiaries and the executor will not permit such resolutions between the estate and a person who, in her capacity as “trustee” is not a beneficiary.

While we agree that an action against an individual is different from an action against that person as trustee, we do not find that distinction important here. Although the designation of Mary Alice McDermott as “trustee” with respect to some of the assets in question is relevant to the question whether they were gifts to her after the trust terminated, this is not an action against her as trustee. Rather it is an action to determine whether the items are hers as an individual, as she asserts, or property of the estate. The question is not whether she holds the items as trustee but whether she owns them outright as opposed to the estate. Her response to the evidence presented showing they are in the estate is that they were gifts to her.

We hold Snow v. Martensen, supra, authorizes the probate court to undertake resolution of this sort of title dispute between the estate and a beneficiary, Dictum in the Hilburn case repeats that proposition.

b. Remedies

Upon oral argument of this case, the appellant urged that the probate court, unlike a court of equity, has no power to compel conduct and thus to require a party to convey property or, in the alternative, to appoint a commissioner to transfer the title. Although this point was not argued strongly in the appellant’s brief, it was sufficiently mentioned. It was argued strongly in a brief submitted to the trial court. The application of the point to this case seems to be that to get the bank stock transferred out of the name of the appellant and into the name of the executor, and to get the theater stock and the certificates transferred from “Mary Alice McDermott, Trustee,” to the executor will require an equitable remedy, and thus the probate court lacks jurisdiction.

We wholeheartedly agree that the probate court is not a court of equity and thus it may not grant purely equitable remedies, other than ones which may be authorized by statute. Merrill v. Smith, Special Administrator, 226 Ark. 1016, 295 S.W. 2d 624 (1956); Arkansas Valley Trust Co. v. Young, 128 Ark. 42, 195 S.W. 36 (1917).

It is troublesome to us to think that the distinction we retain between law and equity courts might make necessary a separate lawsuit in a case like this one just to get the same person who sits both as chancellor and as probate judge to give a traditionally equitable remedy as chancellor based on proof already before him as probate judge. A more egregious waste of time is hard to imagine. But the plain answer to the problem raised by this appellant is that the appellee has sought no equitable remedy, and the probate court did not propose to grant one. We presume that if an equitable remedy is needed in the future, the parties will seek it in the proper court.

2. Adequacy of the Petition

The appellant contends the petition fails to state a cause of action. There is no requirement of which we are aware that a petition filed by an executor to settle questions of ownership between the estate and a beneficiary state a claim or cause of action in the sense that a complaint must. We can only assume the appellant makes this argument on the premise that she is a third party or stranger to the estate. We have disposed of that contention above in part l.a. of the opinion.

3. Amendment of the Petition

The appellant argues the petition was amended on March 16, 1979, to add items to the list of those in controversy between the appellant and the estate after evidence had been taken on March 14, 1979, and that no such amendment should have been allowed.

The appellant cites no authority on this point. In our view, the executor could have amended to add items or could have filed fresh petitions at anytime alleging ownership or controversy among the parties with respect to items he claimed to be in the estate. The appellant was offered an opportunity to present evidence as late as July 13, 1979, which was the date of the final hearing on these matters. We find no prejudice to the appellant whatever and no authority which would have required foreclosing the amendment or filing of a petition as argued.

4. Statute of Limitations

The appellant contends that when the trust ended, December 31, 1973, by the terms of the trust instrument, the statute of limitations began to run in her favor. As pointed out by the appellee, we assume this argument applies only to the items held by the appellant as “Mary Alice McDermott, Trustee.” The five year “catch-all” statute, Ark. Stat. Ann., § 37-213 (Repl. 1962), apparently is the one which would apply, and the appellant contends this action was not commenced within five years after the termination of the trust.

For the proposition that limitations begin to run when a trust terminates by its own terms, the appellant cites the following passage from Bogert, Trusts and Trustees, § 951, p. 475 (1962):

If the period ends during which the trust was by its terms to continue, and there is no conduct on the part of the remaindermen which amounts to a consent that the former trustee holds for them under a new trust, or as a bailee, or in some other representative capacity, the possession of the old trustee automatically becomes adverse to that of those persons who are entitled to possession at the end of the trust, and the statute of limitations regarding an action to recover real or personal property begins to run.

The instrument pursuant to which Mrs. McDermott acted as trustee provided that upon termination of the trust, the corpus would be paid to Senator McClellan. He was the only remainderman. There was certainly conduct on his part which could be characterized as consent that the appellant hold under a new trust or as bailee or in some other representative capacity. There was no adverseness between the appellant and the Senator. His recording of the income from all but one of these assets and payment of taxes on it is strong evidence he retained an interest in the property. Thus, the quoted passage does not apply.

The appellant cites other general authority for the same proposition as is contained in the passage from Bogert. Upon examination, however, we find it is subject to the same qualifications.

While we agree that a trustee of a discharged trust may hold adversely to the cestui, that clearly was not the case here.

5. Burden of Proof

The appellant cites a number of cases showing that one who asserts that property in the possession of another is held in trust bears the burden of proof, e.g., Bottenfield v. Wood, 264 Ark. 505, 573 S.W. 2d 307 (1978); Mulligan v. Payne, 232 Ark. 922, 341 S.W. 2d 53 (1960). She contends the trial court erred in casting upon her the burden of showing the items in question were gifts to her.

We agree that if this were a case in which a third party or stranger to the estate were being sued by the executor to prove the corpus of a trust held in the name of the defendant were part of the estate, the burden might be as the appellant suggests, and the citations would be appropriate. However, this is not such a case. The appellee does not suggest these items are held in trust by the appellant. The parties agree the trust terminated in 1973, and the appellant says these items were gifts to her. Rather, the question is whether, after that date, the items in the name of “Mary Alice McDermott, Trustee,” were the property of the Senator or the appellant.

In response to this point, the appellee argues there was no factual issue in the case, and thus the question who had the burden of proof is moot. While we agree the “evidentiary” facts seem undisputed, the “ultimate” fact, i.e., whether there was a donative intent in leaving these items of the trust corpus in the possession of the appellant and purchasing stock in her name, must be regarded as disputed. In his later argument on the question of where the preponderance of the evidence lay, the appellee says:,

. . . [S]ince it is necessary for a trustee who claims trust property as a gift to establish the existence of the gift with the strongest of evidence, things that were necessary to do it right were never done and there is no indication that such an intention existed.

That statement indicates the appellee thought (and still thinks) the burden surely was on the appellant to prove the items were given to her.

In his final order, the trial court referred to the heavy “burden of a trustee who claims the subject matter of his trust property,” thus the court apparently regarded this burden as one borne by the appellant.

The issue thus becomes whether, in proceedings before a probate court to ascertain the assets of the estate, a beneficiary who claims title to property which is asserted by the executor to be part of the estate bears the burden of proof. Although the appellant has cited cases, noted above, holding that one asserting property held by another is held in trust must prove it, no cases are cited on the issue as we have just stated it. We have found no helpful authorities on this very precise question.

Looking at other cases in which the question has been whether a decedent made a gift, the common thread seems to be that whoever claims the gift was made must prove it, regardless who initiated the inquiry. In Bennett v. Miles, 212 Ark. 273, 205 S.W. 2d 451 (1947), it was made clear, although not specifically stated, that an executor who did not list a certain asset as part of the estate had the burden of establishing that it had been the subject of a gift by the decedent. The question arose when the executor was faced with an exception to his accounting filed by one claiming as a pretermitted child. In Baugh v. Howze, 211 Ark. 222, 199 S.W. 2d 940 (1947), again without specifically saying so, our supreme court made it clear that one who asserts a decedent has made a gift must prove it even though he is not the “plaintiff” or moving party. There, a widow who was the sole beneficiary of her husband’s will sought to recover some money he had placed with a friend to be distributed upon his death to his brothers and sisters. The court held the proof insufficient to show the decedent took the steps necessary to make the gift.

As a practical matter, there is good reason for this approach. If the burden were on the one claiming no gift was made, then the burden would be one of proving a negative proposition. In most cases that burden would be intolerable. We hold it was not incorrect for the trial court to place the burden on the appellant to show the Senator had made a gift to her of the property she once had held in trust and property in her name but for which he paid and as to which he retained income and paid taxes.

6. Preponderance of the Evidence

We will not review in detail the evidence presented below. The case was submitted primarily on an affidavit by the appellant, discovery responses by her, and the Senator’s personal records showing income receipts and tax payments with respect to the assets in question. No testimony was taken, and the entire “live” portion of the record consists of colloquy among the lawyers for the appellant and other beneficiaries, the court, and the lawyer for the appellee. The appellant and the other beneficiaries apparently were, for personal reasons, unwilling to testify. The court simply held the evidence insufficient to establish the claimed gifts, and we cannot say his ruling was against the preponderance of the evidence.

In this connection, quotation from the final paragraph of the opinion in Baugh v. Howze, supra, is appropriate.

. . . [T]he question here simply stated is, do the facts show a gift of the $10,000 to Dr. Howze’s brothers and sisters? Conceding that Dr. Howze wanted this money to go to his sisters and brothers after his death, still unless he took proper or legal steps to carry out such intention, this court cannot act for him and give legal effect to the donor’s wishes when the donor himself has failed to comply with the essential requirements necessary to effectuate the gift. [211 Ark. at 228]

Had the senator wished to make gifts of the items the appellant once held in trust, it would have been a simple matter to have had them reissued to her without the word “trustee.” Conceding he wanted the items to go to her, he failed to take a step which we regard as essential in these circumstances in view of the strong evidence needed to show that one named as “trustee” ceases to act in that capacity with respect to property which remains in her possession and which she asserts was given to her. In Young v. Barde, 194 Ark. 416, 108 S.W. 2d 495 (1937), our supreme court held that an alleged gift to a person who occupies a confidential or fiduciary relationship would be scrutinized with the most “jealous care,” quoting Gillespie v. Holland, 40 Ark. 28 (1882). The Young case was cited with approval in Barrineau v. Brown, 240 Ark. 599, 401 S.W. 2d 30 (1966).

The preponderance of the evidence also supports the decision with respect to the bank stock. We cannot say the lower court erred in finding this stock which was in the Senator’s possession at his death accompanied by a blank power was to be included in his estate, especially in view of his records showing receipt of dividends and taxes paid on them by him. The evidence to the contrary was not “clear and convincing.” Mohr v. Hampton, 238 Ark. 393, 382 S.W. 2d 6 (1964).

Affirmed.

Howard, J., dissents.

George Howard, Jr., Judge,

dissenting. The majority found that the trust of the late Senator McClellan:

“[B]y its terms, ceased to exist in 1973 . . .the instrument pursuant to which Mrs. McDermott acted as trustee provided that upon termination of the trust, the corpus would be paid to Senator McClellan. He was the only remainderman. There was certainly conduct on his part which could be characterized as consent that the appellant hold under a new trust or as bailee or in some other representative capacity. . . .”
The majority further stated:
“While we agree that an action against an individual is different from an action against that person as trustee, we do not find that distinction important here. . . . The question is not whether she holds the items as trustee, but whether she owns them outright as opposed to the estate. Her response to the evidence presented showing they are in the estate is that they are gifts to her.”

The pivotal issue in the case is not, as perceived by the majority, whether the Probate Court had jurisdiction to determine title to property, purportedly in possession of the appellant belonging to the estate of the late Senator John L. McClellan, but whether the Probate Court has jurisdiction to require a trustee to render an accounting of her stewardship.

The trust agreement, which was executed by the late Senator McClellan and appellant on December 31, 1963, while stating the trust would terminate ten years from the date of its execution provides:

“The trustee, without regard to any legal restriction otherwise applicable to trustees, shall be entitled:
(d) to continue to have or exercise after the termination of the trust in whole and in part and until the final distribution thereof, all the titles, powers, discretions, rights and duties conferred or imposed upon the trustee or by this agreement during the existence of the trust.
“The trustee may at any time render an account of her proceedings to the grantor, or, after the death of the grantor . . .” (Emphasis added)

Appellee’s petition filed in the Probate Court, purportedly raising an issue involving the title to the assets in the possession of appellant, makes the following pertinent and dispositive allegations:

“The executor states that there are unsolved controversies arising out of whether certain items or property of the estate are the individual property of Mary Alice McDermott. . . .
“Petitioner attaches hereto a copy of a trust executed by decedent in 1963 naming Mary Alice McDermott as trustee. The trust expired ten years after its inception.
“ . . . the executor prays that the court hold a hearing .. . to determine ownership of the above items.”

It is plain that the relief sought by appellee in the trial court against appellant is in her capacity as trustee and, accordingly, the Probate Court was without jurisdiction to entertain the matter.

It is well settled that the question of whether a court of equity has jurisdiction over a subject matter of an action is determined from the allegations of the petition. Scroggins v. Bowen, 249 Ark. 1155, 464 S.W. 2d 79; Graysonia N. & A. R. Co. v. Newberger Cotton Co., 170 Ark. 1039, 282 S.W. 975.

Moreover, exhibits to a petition control its averments and the nature of the cause of action. Moore v. Exelby, 170 Ark. 908, 281 S.W. 671.

It is clear that the assets claimed by the appellee were purportedly delivered to appellant in her capacity as trustee and not in her individual capacity.

An action for the discovery and recovery of trust assets is peculiarly an equitable proceeding since a law court is not endowed with the machinery to adjust the rights and equities involved. Ferguson v. Rogers, 129 Ark. 197 (1917); Spradling v. Spradling, 101 Ark. 451, 142 S.W. 848; Blanton v. First Nat’l Bank, 136 Ark. 441, 206 S.W. 745.

It is beyond debate that only a person occupying the position of trustee can be required to render an accounting of his administration of the trust estate. It is clear from the exhibit, the trust agreement, attached to appellee’s petition, that it was the intention of Senator McClellan that the appellant should be afforded the discretion to administer the trust even after the expiration date contained in the agreement; and that the trustee may at any time render an accounting, even after the death of the Senator.

I would reverse and remand the case to the Probate Court of Pulaski County to be transferred to the Pulaski County Chancery Court. Accordingly, I dissent.

       The record does not show income from the Home Theaters stock.


author: Ernie E. Wright, Chief Judge.

text:
    IMPORT MOTORS, INC. v. Leon LUKER
    CA 79-290
    599 S.W. 2d 398
    Opinion delivered April 23, 1980
    Petition for rehearing denied May 28, 1980
    Released for publication May 28, 1980

      Jacoway, Herdlinger, Jacoway & Stanley, P.A., by: Thomas A. Jacoway, for appellant.

      Davis, Douglas & Penix, for appellee.
   Ernie E. Wright, Chief Judge.

The appellant, Import Motors, Inc., brings this appeal from a decree of the chancery court denying relief on appellant’s complaint against appellee, Leon Luker, for specific performance, damages, injunctive relief and other incidental relief for alleged breach of a covenant not to compete in an employment contract.

For reversal appellant argues the chancellor erred in finding the competition of appellee was only ordinary and the agreement of the parties did not involve a sale of business. Appellant further argues the court erred in failing to enter judgment against, appellee for $250.00 he admittedly owed appellant and in failing to award injunctive relief, return of $5,000.00 compensation paid appellee as consideration for the covenant not to compete, for damages and related relief.

The appellant entered into a contract of employment for a term of one year effective April 1, 1977, for the employment of appellee as a shop manager in a newly established foreign car repair service and Fiat dealership at Springdale, Arkansas. The contract provided at the end of the one year term the “. . . agreement may be extended on a year to year basis on the terms and conditions agreed by the parties”. The contract fixed appellee’s salary at $20,000.00 per year, payable in the sum of $1,666.67 monthly. Prior to entering into the contract the appellee owned and operated his own foreign car repair shop in Springdale and had developed a substantial number of loyal customers. It is undisputed he was a highly skilled foreign car mechanic, and most of his established customers followed appellee to his employment with appellant and did business there.

The contract contained a covenant by appellee not to compete within two years after leaving the employment reading as follows:

Employee agrees that during the term of this agreement and for a period of two (2) consecutive years immediately following the termination of this agreement or his employment, whichever occurs latter, and regardless of the cause of termination, he will not by himself or on behalf of any other person, firm, partnership or corporation, engage in the business of auto service and maintenance within a trade area known as Northwestern Arkansas and within a radius of twenty-five (25) miles from Springdale. Employee further agrees that he will not directly or indirectly, for himself or on behalf of, or in conjunction with, any other person, firm, partnership, or corporation, solicit or attempt to solicit the business or patronage of any person, firm, corporation or partnership within said twenty-five (25) mile radius for the purpose of selling and/or servicing automobiles or other products similar to those dealt in by the Company. Employee shall not perform such other incidental business and service as the Company now engages in, nor will the Employee disclose to any person any of the secrets, methods or systems used by the Company in and about its business. Employee specifically agrees that $5,000.00 of his compensation is predicated upon said covenant not to compete and that the violation of said agreement shall automatically entitle the Company to reimbursement of $5,000.00 for the year of the infraction and that the Company shall also be entitled to a $100.00 per day penalty for each and every day that employee continues to violate the provisions of his covenant not to compete contained herein.

The appellee began working as shop manager in appellant’s new business when the business opened in early April, 1977. He was given ten per cent of the stock in the appellant corporation, and he sold the stock to appellant prior to leaving the employment. Dissension developed between appellee and the manager, who was one of the principal corporate owners, resulting in appellee leaving the employment on February 27, 1978, some thirty-two days before the expiration of the term of the one year contract.

The manager became dissatisfied with some of the actions of appellee with reference to the discharge of his duties, and testified he discovered improprieties on the part of the appellee, specifically, “ ... in the taking of monies and not turning them over to the company”; and, “ . . . letting people go without paying their bills”. He further testified that when he discussed these matters with appellee, the appellee would become upset and say, “If you don’t like the way I am doing things I will take my tools and go”. The manager decided he could no longer permit the appellee to continue as shop manager, and on or about February 27, 1978, advised appellee he would not permit him to continue as shop manager, but would permit him to work as a mechanic. There is no indication his salary would have been reduced. The appellee declined to work as a mechanic and left the employment. He admitted at trial he owes appellant $250.00 he received for a transmission, and no explanation was offered for not turning the money over to his employer.

The last of June, 1978, appellee opened his own business called “Leon’s Foreign Car Service”, a mile from appellant’s business, and numerous customers discontinued patronizing appellant’s business and began patronizing appellee. The evidence reflects appellant’s business declined markedly after appellee opened his competing business. Prior to appellee opening the competing business the appellant was operating at a profit, but since that time the appellant has been operating at substantial losses notwithstanding an increase in new car sales. Appellant attributed these losses to the repair service competition from appellee and offered in evidence monthly gross sales receipts from the shop business reflecting substantial declines in such receipts subsequent to appellee’s competition.

It is undisputed the appellee’s employment involved no trade secrets or confidential information obtained by appellee while employed by appellant. Also, the evidence does not support appellant’s contention there was a sale of a business.

At the close of the evidence the court granted appellant’s motion to treat the pleadings as amended to conform with the proof.

The trial judge’s opinion rendered after briefs were submitted made observations and findings, reading in part as follows:

The respective briefs reflect the numerous factors to consider, including the employee’s access to confidential information, special training received during employment, access by the employee to lists of customers, the employee’s ability to exploit personal contacts and the goodwill purchased with a business. In the case at bar, there are admittedly no trade secrets involved. Neither are there allegations that the employee had access to any information confidential to the employer such as lists of customers, or that the employee received any special training during employment. The contract did not arise from the sale of a business. In fact, the employer candidly states in its brief: “other factors, however, have been enumerated and the need to protect the employer from exploitation of customers is frequently cited. It is upon this basis that the petitioner has urged enforcement of its contract.”
It is certainly a legitimate interest of an employer to protect the group of customers it develops from unfairly being drained away by a former employee. An employer may not, however, shield itself from ordinary competition.
In the instant case, the evidence reflects that Leon Luker excelled in his work as an automobile mechanic specializing in repair of foreign cars. When employed by plaintiff, he closed his automobile repair shop and many of his customers followed him to Import Motors. Upon leaving his employment with plaintiff, many of the same customers followed him to his new place of business. There is no evidence that he solicited customers to leave Import Motors. Those who followed Luker did so because they were satisfied with his prior work. Neither is there convincing evidence that the position of automobile mechanic (specializing in foreign cars) is “unique” or “extraordinary”. Undoubtedly Import Motors has not found a mechanic as talented as Luker or one whose services are valued as highly. That alone does not justify a restraint of trade.
The Court has searched and cannot find any substantial evidence that Leon Luker exploited his former position with Import Motors by pirating the stock of customers developed by Import.

From a review of the evidence, we conclude the above findings of the trial judge are not contrary to the preponderance of the evidence.

We also agree the trial judge was correct in concluding, as he did, the contract not to compete was not enforceable because it would, under the circumstances, prohibit ordinary competition, and the law does not provide protection against ordinary competition. Orkin v. Weaver, 257 Ark. 926, 521 S.W. 2d 69 (1975).

Although the pleadings were treated as amended to conform with the proof, and appellee admitted he collected and retained $250.00 that rightfully belongs to appellant, the court failed to enter judgment for appellant for that item. Judgment for the $250.00 should have been entered.

There was substantial evidence appellee breached the provision of the one year contract requiring him to promptly remit to the employer all monies of the company coming into his possession, and this resulted in his being relieved as shop foreman 32 days before the end of the term of the employment contract. The appellant, however, did not discharge appellee, but advised him he could continue in. the employment as a mechanic, and there is no evidence his salary would be reduced. The contract provided he would perform such duties as the employer may from time to time direct.

There is no evidence the appellant acted other than in good faith at all times in dealing with the appellee.

The contract provides that $5,000.00 of appellee’s compensation is predicated upon appellee’s covenant not to compete. The pleadings were amended to conform to the proof. Since it is undisputed $5,000.00 of appellee’s compensation was consideration for the covenant not to compete and that provision has been decreed to be void and unenforceable at the instance of appellee, we hold it is not equitable under the circumstances to permit the appellee to retain the $5,000.00 he received as consideration for the covenant not to compete, and appellant is entitled to recover said item. The amendment of the pleadings to conform with the proof permits the complaint to be treated as including an alternative count in assumpsit for the recovery of the $5,000.00 for which appellant received no reciprocal consideration because of appellee’s election to treat the noncompetition provision in the contract as unenforceable. Under such circumstances the law implies an obligation on the part of the appellee to return the money he received for the covenant he elected to repudiate. The appellee should not be allowed to retain the consideration for the covenant not to compete and at the same time reject the covenant.

The right to recover the $5,000.00 is on the basis of the common law action of assumpsit. Assumpsit has its origin in relief anciently afforded by chancery in respect to an implied obligation arising by operation of law, and is grounded in equitable principle. In Hartford Accident & Indemnity Co. v. Benevento, 133 N.J.L. 315, 44 A. 2d 97 (1945), the court said the action of assumpsit has been extended:

To almost every case where an obligation arises from natural reasons, and the just construction of law, that is quasi ex contractu ... It lies only for money, which ex aequo et bono, the defendant ought to refund. . . . This action is greatly favored by the courts. It is less restricted and fettered by technical rules and formalities than any other form of action. ... It approaches nearer to a bill in equity than any other common law action.

This concept is supported by United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386, 54 S. Ct. 443; Holcomb v. Kentucky Union Co., 262 Ky. 192, 90 S.W. 2d 25; Beauregard v. Orleans Trust Co., 108 Vt. 42, 182 A. 182; and Allen v. Mendelsohn & Co., 207 Ala. 537, 93 So. 416. In the latter case the court said:

Assumpsit is an action of an equitable character, liberal in form, and greatly favored by the court as a remedy. . . no agreement is necessary; assumpsit will lie wherever the circumstances are such that the law, ex debito justitiae will imply a promise.

The Arkansas Supreme Court has many times recognized the common law action of assumpsit, but we find no precedent in Arkansas similar to the case before us.

While an action of assumpsit, although based on equitable principles is an action at law, the law is well settled that when the chancery court has jurisdiction of a case for one purpose, it will retain jurisdiction to settle the rights of the parties arising out of the subject matter, Austin v. Dermott Canning Co., 182 Ark. 1128, 34 S.W. 2d 773 (1931); Spears v. Rich, 241 Ark. 15, 405 S.W. 2d 929 (1966). Unquestionably, this action for injunctive and other relief was one cognizable in equity, and therefore, the court has jurisdiction to do complete justice as between the parties.

We review this equity case de novo on appeal, as we do equity cases generally, and direct the entry of a decree that should have been rendered by the trial court. Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979).

The judgment is modified to award appellant recovery from appellee of $250.00 admittedly owed appellant, and the sum of $5,000.00 for monies received by appellee as consideration for the covenant not to compete.

The cause is affirmed as modified and is remanded for entry of judgment in keeping with this opinion. Appellant is awarded its costs in this court, including the cost of the record.

Affirmed as modified.


text:
    DANCO CONSTRUCTION COMPANY, INC. v. CITY OF FORT SMITH, Arkansas et al
    CA 79-320
    598 S.W. 2d 437
    Court of Appeals of Arkansas
    Opinion delivered April 23, 1980
    Released for publication May 14, 1980

      Tom Forest Lovett, P.A., for appellant.

      Daily, West, Core, Coffman & Canfield, for appellees.
   Ernie E. Wright, Chief Judge.

This is an appeal from an order of the circuit court denying the defendant’s motion for summary judgment.

The City of Fort Smith on February 12, 1974, filed action against appellant claiming damages arising out of the construction of a sewer line by the appellant. The City alleged appellant was negligent in failing to comply with plans and specifications in the construction and breached express and implied warranties of fitness with reference to materials used.

Danco answered the complaint denying the allegations and affirmatively interposing the five year statute of limitations, Ark. Stat. Ann. § 37-237 (Repl. 1962); and thereafter filed motion for summary judgment. Affidavits filed in support of the motion reflect that Danco completed the work under its contract with the City as of August 4, 1967, and the City paid the balance of the retainage on the contract to appellant on February 9, 1968. This was not disputed.

The City filed a response to the motion for summary judgment alleging there are genuine issues of material facts and affidavits showing the work performed by appellant was one phase of a sewer improvement project and the phase constructed by appellant was not connected for service until a necessary pump station, an integral part of the total improvement, was completed and functional. This did not occur until early 1970. An affidavit on behalf of the City stated any defect in the line constructed by appellant would not become manifest until the pump station was completed.

The action was commenced within five years from the time the line constructed by appellant was connected for service, but after five years had elapsed from the completion of appellant’s portion of the sewer improvement project.

• The court found there is a genuine issue of material fact and overruled appellant’s motion for summary judgment. However, in the order the court stated a conclusion of law, “That the claim by the City of Fort Smith is not barred by the Statute of Limitations”.

Appellant contends the court erred by including in the order the finding or ruling the City is not barred by the statute of limitations, and in denying appellant’s motion for summary judgment. The appellant further contends the only question presented by the motion is a question of statutory construction and that the court erred in finding a genuine issue of fact exists between the parties.

The rule is well settled that a denial of a summary judgment is deemed an interlocutory order and not a final order from which appeal may be taken. Rule 2, Rules of Appellate Procedure. Bawcom v. Allis-Chalmers Credit Corporation, 256 Ark. 569, 508 S.W. 2d 741 (1974). The appellant argues the part of the order holding the City is not barred by the statute of limitations had the effect of granting a summary judgment in favor of the City on the issue of the statute of limitations even though the City did not seek a summary judgment, but only filed a response to appellant’s motion. It further argues the inclusion of this ruling will operate to bar the appellant from offering evidence at trial on the facts pertinent to the defense of the statute of limitations.

We agree the court’s order should have been limited to the single issue as to whether there is a genuine issue of material fact, and when so limited the order is not appealable.

We reverse the portion of the order of the trial court finding or holding the City of Fort Smith is not barred by the statute of limitations. In doing so we make it clear we are not holding the City is not barred. In view of the determination by the court that there is a genuine issue of material fact, the motion for summary judgment should have been simply denied. The parties shall be permitted to introduce any further evidence they wish touching on the issue of the statute of limitations and on the date the statute began to run.

We do not review the court’s denial of the motion for summary judgment since the order is interlocutory and not appealable. However, the part of the order ruling the City is not barred by the statute of limitations would operate to foreclose appellant from further asserting that defense and offering evidence at trial on that issue. That portion of the order is therefore a final disposition of that issue, and is therefore appealable.

Reversed in part and remanded.


text:
    Ollie D. McKNIGHT v. Charles L. DANIELS, Director of Labor and U.S. POSTAL SERVICE
    CA 80-4
    598 S.W. 2d 436
    Court of Appeals of Arkansas
    Opinion delivered April 23, 1980
    Released for publication May 14, 1980

      Appellant, pro se.

      Herrn Northcutt, for appellees.
   Ernie E. Wright, Chief Judge.

This is an appeal from a decision of the Arkansas Board of Review affirming the appeals referee in denying unemployment benefits on the finding the appellant voluntarily quit his last work for reasons other than good cause connected with the work.

The claimant is fifty-five years of age and has more than thirty-one years of service with the United States Postal Service. He is eligible for optional retirement. An increasingly troublesome back problem caused him to quit his job as a rural mail carrier on August 31, 1979. He obtained forms for disability retirement application in July, and told his supervisor he was having so much trouble doing his work he might as well make up his mind he could no longer work at his job. He did not request a leave of absence or transfer to a different job.

The appeals referee, after heaving evidence, concluded the claimant voluntarily quit his last work on August 31, 1979, when he told his employer he was quitting, submitted his application for disability retirement, and made no efforts to preserve his job rights. The decision was affirmed by the Board of Review.

The Employment Security Law does not provide for unemployment benefits for unemployment caused by disability. On the contra, the program is intended to provide benefits for workers who involuntarily become unemployed, are physically and mentally able to work and are available for work. It is clear from the evidence the claimant is not eligible under the law. He voluntarily left his work as a rural mail carrier, not for any good reason inherent in the work, but because he had a chronic back ailment that prevented him from continuing his work. The claimant frankly stated at the hearing the employer did not force him to quit, but his physical condition forced him to quit. The evidence discloses no efforts by the claimant to transfer to different work in the Postal Service or for a leave of absence. Thus, the claimant is disqualified for benefits under Section 5 (a) of the Arkansas Employment Security Law which provides a claimant is disqualified if he voluntarily and without good cause connected with the work, left his last work.

Affirmed.


author: James H. Pilkinton, Judge.

text:
    NORTHWESTERN NATIONAL INSURANCE COMPANY v. Charles B. STANLEY
    CA 79-256
    598 S.W. 2d 439
    Court of Appeals of Arkansas
    Opinion delivered April 23, 1980
    Released for publication May 14, 1980

      Wright, Lindsey & Jennings, for appellant.

      Davidson, Plastiras, Horne, Hollingsworth & Arnold, Ltd. for appellee.
   James H. Pilkinton, Judge.

On June 9, 1977, Northwestern National Insurance Company issued a renewal of a standard home owner’s policy to appellee, Charles B. Stanley. The policy insured certain jewelry, as scheduled, and a premium of $189.00 was collected for the coverage of this class of personal property. One particular 2.94 carat diamond ring was insured for $7,000 and was described in the schedule as “one lady’s 14K 2.94 Ct. diamond in 6-prong solitaire mounting.”

Mr. Stanley had carried this same coverage for a number of years, and the 2.94 carat ring had been insured for $7,000 under prior policies, and had been worn by the wife of the appellee. Mrs. Stanley died sometime prior to June 9, 1977, when the renewal policy was issued. After his wife’s death, the 2.94 carat diamond was removed from the lady’s mounting and was reset in a gentleman’s mounting so Mr. Stanley could wear it. At the time the policy was renewed, no mention was made of the fact that the diamond had been remounted, or that Mr. Stanley was now wearing it, and the ring was described in the renewal policy schedule as it had been in previous policies.

There was an armed robbery on June 20, 1977, at the Stanley retail jewelry store. In addition to other articles taken from the store, the robber took a number of pieces of jewelry personally owned by Mr. Charles B. Stanley. One of the items stolen was the 2.94 carat diamond ring which Mr. Stanley was wearing when the robbery took place.

Mr. Stanley filed a claim with Northwestern National for $7,000 for the theft of the 2.94 carat diamong ring, and also for $2,500 for another ring listed in the schedule of jewelry. The appellant insurance company did not seriously dispute its liability for $2,500, the amount of the insurance on the other ring in question described as one 14 carat white gold man’s diamond ring, but Northwestern National denied liability in any amount for the 2.94 carat diamond ring. It was the position of Northwestern National that it had provided coverage for loss due to theft of a “lady’s ring.” Appellant contended that it did not provide coverage for loss of a man’s ring, which was what was stolen. Appellant therefore contended that the 2.94 carat diamond ring was not covered by the policy since it had been remounted from a lady’s setting to a man’s setting. This suit was then filed, pleadings were joined, and the issue of coverage was presented to the jury. The verdict was rendered in favor of appellee for $2,500 covering the scheduled 14 carat gold man’s diamond ring, about which there was little controversy, and $7,000 for the 2.94 carat ring in controversy. Judgment was entered on the verdict, and appellant has appealed.

I

Appellant first argues that the trial court erred in refusing to grant the defendant’s motion for a directed verdict.

It is well settled that in considering a motion for directed verdict, a trial court must view the evidence and all reasonable inferences that can be made from the evidence in the light most favorable to the party against whom the directed verdict is sought. Housing Authority of the City of Texarkana v. E. W. Johnson Construction Company, Inc., 264 Ark. 523, 573 S.W. 2d 316 (1978) and cases there cited.

In this case the trial court was correct in refusing to grant the defendant’s motion for a directed verdict. Contracts of insurance should receive a practical, reasonable and fair interpretation consonant with the apparent object and intent of the parties viewed in the light of their general object and purpose. The jury was entitled to consider the contention of appellee that a reasonable construction of this insurance policy indicates it was the clear intention of the parties to insure the 2.94 carat center diamond. It is undisputed that the diamond stolen was the same diamond that was insured in the renewal policy. A problem as to identification of an item to be insured could arise in many instances, and descriptive words must necessarily be used in the policy to be sure the insured and insurer have agreed upon the particular item covered. In this case, the policy under the heading “Jewelry Schedule” describes this diamond of a particular size as set in a 14 carat 6-prong lady’s solitaire mounting. Removing this diamond from the lady’s mounting and resetting it in the gentleman’s mounting did not, as a matter of law, alter the fact that the 2.94 carat diamond could still be insured. There is no provision in this policy that the diamond could not be reset and the insurer could have written this prohibition into its policy if that had been its intention. Certainly the type of mounting could not in itself work a forfeiture of the coverage under the circumstances here. Brown v. International Service Insurance Company, Court of Appeals of Texas, 449 S.W. 2d 491 (1970). The evidence shows that the 2.94 carat diamond had exactly the same value in both settings. According to the testimony, the diamond was worth $7,000 when first insured, and was worth $12,500 when the renewal policy was written. The value of the lady’s mounting was shown to have been $50, and the value of the man’s mounting into which it was reset was shown to have been $100, inconsequential in both instances.

In dealing with a different type of insurance, the Arkansas Supreme Court said in Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, at 1034, 436 S.W. 2d 829 (1969):

The materiality to the risk of a fact misrepresented, omitted or concealed is a question of fact so long as the matter is debatable. It is a question of law only when so obvious that a contrary inference is not permissible. (Citing cases). This principle is applied to questions pertaining to acceptance of risk as well as those relating to hazard assumed.

The above principle also applies in the case before us. It is quite evident that the testimony raised an issue for the jury as to whether the 2.94 carat diamond ring in question as remounted was, in fact, covered by the policy. That issue was submitted to the jury under instructions which are not questioned on appeal. Therefore, we find no merit in appellant’s argument that the court should have granted its motion for a directed verdict.

II

Appellant also contends that even if the trial court was correct in submitting the question of coverage to the jury as a fact question, then the judge erred in excluding certain relevant evidence submitted by it pertaining to the issue. Northwestern National proffered the testimony of Ms. Ellen Jennings, one of the company’s underwriters. She would have testified, if permitted to do so, that the insurer’s underwriting rules at the time of the last renewal of the Stanley policy placed a limit of $2,500 on insurance for a single item of men’s jewelry and a limit of $7,500 on insurance for a single item of women’s jewelry. She offered to explain the reason for this difference based upon her knowledge and experience as an underwriter. It was her opinion as an expert that the risk of loss of men’s jewelry is greater than women’s jewelry. She would have testified that experience in the underwriting field has shown that men are more likely to remove their jewelry during the course of a day’s activities and lose it. She said women tend to leave their jewelry on once they have put it on. Men also would normally be in more places where they would be subject to a loss. They are out in the public more and seen more with the jewelry. In Ms. Jennings’ opinion as an underwriter, men are more prone to lose jewelry than women.

Appellant says that the failure of Mr. Stanley to disclose that the ring had been remounted, and was being worn by him, was material to the risk assumed by it in the renewal policy, and was of such a nature that it, in good faith, would not have accepted the risk for more than $2,500 if correctly apprised of the facts.

The import of the proffered testimony was not that the company would have rejected the renewal coverage on the 2.94 carat diamond ring entirely had it known the diamond had been remounted and was being worn by Mr. Stanley, but to show that appellant would have limited the coverage to $2,500 if the disclosure had been made.

It was the trial court’s opinion that this proffered testimony was immaterial (as the ring in question was not lost through the carelessness of Mr. Stanley), and was an effort to modify a written contract by oral evidence. The court excluded the offered evidence as inadmissible.

Whether this type of evidence is admissible depends upon the particular case at hand. 7 Wigmore, Evidence §§ 1946-1947 (1978). In his discussion, Wigmore cites Hartford Protection Ins. Co. v. Harmer, 2 Ohio 452, where it is stated:

It is . . . impossible to say that the opinions of witnesses are never to be received in determining the materiality of facts not disclosed; much less can it be said that they are to be received in all cases. In each case it must depend on the nature of the inquiry . . .

In the case at bar, perhaps the reason for the underwriting rule would be immaterial. Be that as it may, the underwriting rule itself would be relevant on the question of whether appellant would have, limited the coverage to $2,500 if it had known of the remounting, and that the ring was then being worn by Mr. Stanley. We do not consider the proffer of this evidence to be an effort to engraft a provision onto an executed contract which was not a part of the written agreement. This evidence was material here merely as throwing light on whether or not appellant would have written the contract (for more than $2,500 on this particular ring) if disclosure had been made. Thus whether the insured knew, or did not know, of the underwriting policy is immaterial to the inquiry here. Wigmore on Evidence, supra, after defining increase of risk as “actual increase of danger”, says:

Thus we are in no way concerned with the question of actual increase of danger. Perhaps it might be clear that the circumstances in the case in hand did not actually increase the danger; but if nevertheless it fell within a class of circumstances scheduled by the insurer (for whatever reason seemed best to him) as increasing the danger, it would “increase the risk ...”

Appellant had the right to adopt the underwriting policy limiting the coverage on a single item of men’s jewelry to the sum of $2,500 for any reason, or for no reason at all. If it had such an underwriting policy, it was entitled to place that information before the jury, under the circumstances of this case, for the jury’s consideration along with all of the other competent evidence. Since under the circumstances existing it would have been appropriate for this information to have been considered by the jury, we must hold that the trial court erred in excluding it. It was certainly relevant to the fact question that the jury was called upon to decide. Rule 401 of the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). It is undisputed that appellant had in the same schedule insured another ring, in a man’s mounting, for only $2,500.

Under the circumstances in this case, if the proffered testimony as to the underwriting practice had been admitted, and if believed by the jury, appellant would still have been subject to a judgment for the $2,500 coverage on the 2.94 carat diamond ring. In a situation such as this one, where the minimum amount can be determined for which appellant would be liable under its own theory of the case, it would be proper to permit appellee to remit down to that figure. Hence the judgment will be affirmed if a remittitur of the excess above $2,500 for the 2.94 carat diamond ring is filed within 17 days from the date of this opinion; otherwise the judgment will be reversed and the cause remanded for a new trial.


author: James H. Pilkinton, Judge. George Howard, Jr., Judge,

text:
    Judy RYAN v. NAPA, GENUINE PARTS COMPANY, Employer and SENTRY INSURANCE COMPANY, Insurance Carrier
    CA 79-306
    598 S.W. 2d 443
    Court of Appeals of Arkansas
    Opinion delivered April 23, 1980
    Released for publication May 14, 1980

      Dewey Moore, for appellant.

      Bethell, Callaway & Robertson, by: Donald P. Callaway, for appellees.
   James H. Pilkinton, Judge.

This is a second appeal in this workers’ compensation case. On August 22, 1979, in Ryan v. NAPA, 266 Ark. 802, 586 S.W. 2d 6 (Ark. App. 1979), this court affirmed an Arkansas Workers’ Compensation Commission finding that Judy Ryan, the claimant, was a part-time employee whose average weekly wage, including overtime, was $72.00. She was found to be entitled to compensation benefits of $48.00 per week. The Commission had also found that the claimant was a tentative candidate for vocational rehabilitation and that the propriety of vocational rehabilitation should be pursued under Ark. Stat. Ann. § 81-1310(f).

While the previous appeal was pending, a hearing was held on August 25, 1978, to determine an appropriate program of vocational rehabilitation. The claimant proposed that she be allowed to take a twelve-month executive secretarial course. The Commission found that a nine-month general secretarial course constituted an appropriate program of vocational rehabilitation for Mrs. Ryan. On appeal she argues that the Commission should have approved the more extensive course which she requested.

The record shows that Dr. Douglas A. Stevens, a clinical psychologist who talked to the claimant, recommended vocational rehabilitation, but referred her to Southern Rehabilitation Service, Inc., for assistance in this matter since rehabilitation was within that organization’s field of expertise. Mr. Donald Frazier of Southern Rehabilitation Service investigated secretarial training and concluded that the twelve-month executive secretarial course, which actually ran for II-V2 months, was not appropriate. Mr. Frazier testified at the hearing held to determine which of the two secretarial courses should be provided. He said that the 11-16 month executive secretarial course included some extra subjects dealing with human relations, management and labor relations, and some more extensive accounting. Mr. Frazier’s testimony and other evidence show that both courses taught typing, bookkeeping, shorthand and business machine operation. Based on the evidence here, we cannot say there is a lack of substantial evidence to support the Commission’s findings that the nine-month secretarial course was appropriate and reasonable for this claimant. We hold that the program of vocational rehabilitation for claimant, approved by the Commission, is supported by substantial evidence.

Appellant also argues that the Commission erred in not awarding maintenance benefits of $550.00 per month, plus reasonable travel expenses during the term of the appellant’s rehabilitation program.

In Owens Country Sausage v. Crane, 268 Ark. 732, 594 S.W. 2d 872 (Ark. App. 1980), we held that an award of the cost for a rehabilitation program must be reasonable. In so doing, we rejected a suggestion of the appellant in that case that a claimant should not be allowed an award of benefits for permanent disability and a rehabilitation as well. In Owens we called attention to the language of Ark. Stat. Ann. § 81-1310(f) [Repl. 1976], which says rehabilitation benefits are to be in addition to other benefits provided by the act. This is what the statute says, and the case law to that effect is now well settled.

In Owens we also held that Ark. Stat. Ann. § 81-1310 permits an award of the cost of a rehabilitation program which is “reasonable in relation to the disabilities sustained by [the] employee.”

In the case before us, the Commission awarded maintenance of $48.00 per week and found that sum to be reasonable in relation to the disability sustained by this claimant. It must be remembered that claimant was a part-time employee, and that her temporary total disability rate was also $48.00 a week. The Capitol City Business College secretarial courses are taught four hours a day, in the mornings only, four days a week, and this was the schedule for the course which the Commission approved. The allowance for maintenance was, of course, in addition to travel expense, tuition and other costs incidental to the program of vocational rehabilitation. The additional items were paid and are not in dispute.

Appellant claims the record reveals that she would need at least $550.00 per month to assist her husband in maintaining the household during the term of her rehabilitation. Appellant argues it is common knowledge that she would need at least the amount requested to sustain herself and help support her family during the period of rehabilitation considering the current costs of goods and services.

Appellees-Respondents agreed to the sum of $48.00 per week as fixed by the Commission; otherwise, there might be a serious question whether the evidence is substantial enough to even sustain that award. To say the least, appellant’s evidence is certainly not sufficient to justify her total maintenance claim. She demanded $550.00 per month to sustain her personal and family needs during rehabilitation. Under our holdings in Model Laundry & Dry Cleaning v. Simmons, 268 Ark. 770, 596 S.W. 2d 337 (Ark. App. 1980), and Gray v. Armour, 268 Ark. 1072, 598 S.W.2d 434 (Ark. App. 1980), appellant’s demands for total family expenses cannot be entertained.

The opinion by the Commission in Gray v. Armour and Company, supra, which is being affirmed today, makes it clear where the claimant, as here, is entitled to permanent partial disability benefits, the payment of permanent partial disability must be suspended during vocational rehabilitation training, so that “there should be no credit allowed the respondents against the award of permanent disability when paying maintenance under the rehabilitation provision.” Thus, upon completion of the vocational rehabilitation training, it becomes the responsibility of the employer to resume and pay out the employee’s permanent partial disability entitlement. This procedure would seem to satisfy the requirements of the act, and our prior holding in Owens Country Sausage v. Crane, supra. In some cases, however, final determination of the amount of permanent disability benefits cannot be accurately made until the results of vocational rehabilitation training are known. But in any event, all rehabilitation benefits are to be in addition to other compensation benefits provided by the act. Owens Country Sausage v. Crane, supra.

The record here shows that appellant was not required to live away from home in order to take her vocational rehabilitation training. The course was taught within fifteen miles of where she lived. As far as this record reveals, her expenses were in no way unusual or extraordinary in the sense of involving extra expenses related to vocational rehabilitation above and beyond normal living expenses. Maintenance benefits under our act are not paid on the basis of an individual’s claim of need for general family living expenses. Gray v. Armour and Company, supra.

A worker undergoing vocational rehabilitation is also entitled to receive reasonable travel or mileage expense. In the case at bar appellant claims that the Commission’s award pertaining to travel is not supported by substantial evidence. We do not agree. Since appellant did not own a car in which to travel to and from her approved secretarial program, the appellees were ordered to provide her suitable transportation to and from her approved program of rehabilitation, provided such travel expenses should not exceed round trip taxi fare for the days she is required to attend the program activities. Appellant contends the Commission should have allowed her at least fifteen cents per mile for transportation expense. Based on the record, we cannot say there is a lack of evidence to support the Commission’s determination of reasonable travel expenses in this case.

The opinion of the Commission is affirmed in all respects.

Howard, J., concurs.

George Howard, Jr., Judge,

concurring. See: Concurring opinion in Gray v. Armour, 268 Ark. 1072, 598 S.W. 2d 434 (Ark. App. 1980).

See Also: Dissenting opinion in Model Laundry & Dry Cleaning, et al v. Gary D. Simmons, 268 Ark. 770, 596 S.W. 2d 337 (Ark. App. 1980).


text:
    Randy NEUGEBAUER v. Harold MARLIN, Tony MARLIN, Ricky MARLIN, d/b/a CITY IRON AND METAL
    CA 79-312
    598 S.W. 2d 446
    Court of Appeals of Arkansas
    Opinion delivered April 23, 1980
    Released for publication May 14, 1980

      Wayne Mooney, for appellant.

      Berl S. Smith, of Barrett, Wheatley, Smith & Deacon, and James A. McLarty, of Pickens, Boyce, McLarty & Watson, for appellees.
   James H. Pilkinton, Judge.

Randy Neugebauer, the appellant, was injured while a passenger in a pick-up truck which was struck from the rear by a trailer truck belonging to appellees, Harold Marlin, Tony Marlin and Ricky Marlin, d/b/a City Iron and Metal. Appellant as plaintiff below claimed certain special damages, and also sought to recover for alleged personal injuries. The case was tried before a jury which rendered a verdict for appellant in the amount of $2,-500. Appellant was dissatisfied with the amount of the verdict and brings this appeal. Thus appellant asks this court to reverse a judgment, entered for him in a negligence case, on a jury verdict as not being supported by substantial evidence.

Appellees point out that appellant did not make any objection to the verdict in any form or seek relief before the trial court; and claim that appellant cannot now challenge the sufficiency of the evidence for the first time on appeal. Appellees are of course correct in that position. See Ark. Stat. Ann. § 27-2154 (Repl. 1979); Turkey Express, Inc. v. Skelton Motor Company, 246 Ark. 739, 439 S.W. 2d 923 (1969); Rock-Ola Mfg. Corp. v. Farr, 226 Ark. 279, 290 S.W. 2d 2 (1956); and Granite Mt. Rest Home v. Schwarz, 236 Ark. 46, 364 S.W. 2d 306 (1963). However, the testimony has been fully abstracted and it is clear there was sufficient evidence for the jury to conclude that although the defendant was negligent, the plaintiff had only proven damages amounting to $2,500. This court cannot weigh the evidence to determine upon which side the preponderance lies, or to substitute its judgment for that of the jury. It is the responsibility of the jury to determine credibility, and to settle disputed questions of fact.

In this case the jury did resolve the issue of negligence in favor of the appellant. Notwithstanding that fact, the jury evidently did not believe that the plaintiff-appellant was injured to the extent he claimed. In any event, it is apparent that a fact question on the issue of damages was made for jury determination. The issues of negligence and damages having been submitted to the jury upon conflicting testimony, and under instructions which are not questioned on appeal, appellant is bound by the verdict.

Affirmed.


author: Marian F. Penix, Judge. George Howard, Jr., Judge,

text:
    Robert Wayne GRAY v. ARMOUR AND COMPANY
    CA 79-281
    598 S.W. 2d 434
    Court of Appeals of Arkansas
    Opinion delivered April 16, 1980
    Released for publication May 14, 1980

      Rose, Kinsey & Cromwell, for appellant.

      Pryor, Robinson, Taylor & Barry, for appellee.
   Marian F. Penix, Judge.

This is a Workers’ Compensation case which concerns the interpretation of Ark. Stat. Ann. § 81-1310(f).

On August 5, 1976 the claimant suffered a compensable injury in the course of his employment with Armour and Company. The Workers’ Compensation Commission held the claimant was temporarily and totally disabled from August 6, 1976 through July 2, 1977, on which date the healing period ended. It also found the claimant to have sustained permanent partial disability to the body as a whole in an amount equal to at least 20%. The Workers’ Compensation Commission approved the joint plan for rehabilitation and held that the final determination of the total amount should not be made until after completion, or termination, of the program of vocational rehabilitation. The Workers’ Compensation Commission directed Respondent to pay for costs of rehabilitation together with any additional travel and maintenance expenses incidental to and incurred in conjunction with or because of claimant’s participation in the program of rehabilitation. The Workers’ Compensation Commission directed the Respondent to pay special temporary total disability benefits to the Claimant at the rate of $77.00 per week while he is enrolled in and successfully pursuing the approved program of rehabilitation. The Claimant appealed from the Commission’s opinion to the Circuit Court which affirmed the Commission. The Claimant appeals.

It is the contention of the claimant the Commission and the Circuit Court erred in construing and interpreting Ark. Stat. Ann. § 81-1310(f) which reads as follows:

Rehabilitation. An employee who is entitled to receive compensation benefits for permanent disability shall be paid in addition to benefits otherwise provided for by this Act, reasonable expense of travel and maintenance and other necessary costs of a program of vocational rehabilitation for a period not to exceed sixty (60) weeks if the Commission finds that such program is reasonable in relation to the disabilities sustained by such employee. A request for such program must be filed with the Commission prior to a determination of the amount of permanent disability benefits payable to such employee.

The claimant reasons “maintenance” as used in § 81-1310(f) includes the upkeep of the claimant’s home during the period of rehabilitation and an amount necessary to provide for all the claimant’s household and living expenses, as well as those of his family. He contends that no permanent partial disability benefits should be paid while he is engaged in a program of vocational rehabilitation and that during that period of time the maintenance benefits awarded should pay, not just the additional cost, if any, to maintain him in his participation in a program of vocational rehabilitation, but also pay all other household and living expenses of both claimant and his family during the rehabilitation program.

Neither the Arkansas Supreme Court, nor this Court, nor the Workers’ Compensation Commission has defined the term “maintenance” nor defined what should be included in “other necessary costs”.

The Workers’ Compensation Commission award directs the Respondent to “pay for the cost of the program of rehabilitation as jointly submitted by the parties and hereinabove approved by the Commission, together with any additional travel and maintenance expenses (as defined herein) incidental to and incurred in conjunction with or because of claimant’s participating in the program of rehabilitation.”

The Commission opinion defines maintenance as follows:

Reasonable maintenance means all (reasonable) additional living expenses incurred by the claimant as a result of pursuing his program of rehabilitation. (E.G., the additional cost of room and board if it is necessary for the claimant to reside away from home during his program of vocational rehabilitation. Also, the entire cost of any and all other additional maintenance expenses that he incurs as a result of his program such as special or additional clothing, etc.)

In 2 Larson’s Workmen’s Compensation Law, § 61-20 Professor Larson in emphasizing the extreme importance of rehabilitation lists twenty-six states which include a maintenance allowance in their rehabilitation statute. He believes the maintenance feature to be one of the most important aspects of a successful rehabilitation statute. He lauds the statute of Wisconsin as one of the most fully developed. Wisc. Stat. Ann. § 102.61 provides:

An employee who is entitled to receive and has received compensation pursuant to this chapter . . . shall, in addition to his other indemnity, be paid his actual and necessary expenses of travel and, if he receives such instructions elsewhere than at the place of his residence, his actual and necessary costs of maintenance, during rehabilitation, . . .

While the language of the Arkansas statute is different from that above, we believe the legislature intended the same interpretation. The design and intent of the statute are not to fully maintain claimant’s household during his participation in a rehabilitation program.

We need not discuss the propriety of the award of “special temporary total disability benefits”. No cross-appeal was filed in this case. The respondent has not challenged the reasonableness of the $77 per week award. Therefore, it must stand. The reasonableness of the Commission’s finding dealing with maintenance and its application to this claimant’s case has not been challenged by the respondent.

We affirm the Commission’s finding regarding its interpretation of maintenance.

Affirmed.

Howard, J., concurs.

George Howard, Jr., Judge,

concurring. The Workers’ Compensation Commission is endowed with the responsibility to administer and implement the State’s policy in industrial injuries and possesses the expertise to determine what is reasonable and proper in a retraining program. Unless the action of the Commission is arbitrary and not supported by substantial evidence, an appellate court has the duty to affirm the action of the fact finding agency.

See: Dissenting opinion in Model Laundry & Dry Cleaning, et al v. Gary D. Simmons, 268 Ark. 770, 596 S.W. 2d 337 (Ark. App. 1980).