author: Lyle Brown, Justice.

text:
    ARKANSAS BEST FREIGHT SYSTEM, INC. v. Walter BROOKS
    5-4449
    424 S. W. 2nd 377
    Opinion delivered February 26, 1968

      Harper, Young, Burden & Smith, for appellant.

      Shaw, Jones & Shaw, for appellee.
   Lyle Brown, Justice.

The trial court affirmed a finding of the Workmen’s Compensation Commission that appellee, Walter Brooks, was totally disabled. The employer-appellant, Arkansas Best Freight System, Inc., controverted any disability in excess of fifty per cent to the body as a whole, that being the highest medical disability in evidence. Appellant contends there is not sufficient competent evidence to warrant an award based on total and permanent disability. The attorney’s fee is also questioned.

On the issue of degree of disability we shall examine the facts in the light most favorable to the Commission’s findings. Brooks was fifty-two years old at the time of the accident. He attended school some two or three years and thinks he “made it through the second grade. ’ ’ For thirty-six years he had been a truck driver, sixteen years for ABF. He sustained injuries in an accident on February 28, 1962, while operating a tractor-trailer unit. Principally the lower back and neck were injured. Because of the injuries he was able to' work only intermittently under medication from the time of the accident until late in October. Surgery was performed in' early November. The vertebral laminae on one side were removed; because of the “hour-glass constriction” at the L-3 and L-4 interspaces it was performed bilaterally; a ruptured intervertebral disc at the right L-4 inter-space was removed, as well as the disc at L-3. His medical and hospital expenses have been approximately $3,-000. While he was under therapy after the operation he was advised by the doctor to try driving. He went out on a few runs for ABF but stated that the pain was unbearable even under medication. Since those experiences he has not been able to do any physical labor. He tried to run a power lawnmower in the summer of 1966 but was unable to do so. In early 1967, he testified, he lifted his granddaughter, who weighed about seventeen pounds, and the strain placed him in traction. He says he is presently unable to drive his own car. He has been on medication continuously since the accident. A few( hours in a sitting position causes pain and causes the right leg to go to sleep. Bed' rest is required twice daily.

Brooks and two other truck drivers of long experience described the usual duties of truck transport operators. Besides actual driving they load and unload freight at terminals along their route; they change trailers, which involves rolling “the dolly wheels down and get the pin open on the fifth wheel”; sometimes it is a two-man job; the turning of corners with a heavy load requires substantial physical exertion; some trips take up to fifteen hours, including driving, loading, and unloading.

Two surgeons, one an orthopedic and the other a neurological surgeon, estimated Brooks’ disability. The latter perfor|med Brooks’ surgery. He estimated Brooks’ disability to be 25 per cent to 30 per cent to the body as a whole and stated that the disability prevented claimant from driving a transport truck and performing the incidental duties. As to functional disability the orthopedist assessed 25 per cent and estimated “that for additional matters this might be doubled to 50%.” The additional disability was described as “psychophys-iological, ’ ’ a term used to describe a reaction by the patient based on both his emotional and physical state. The doctor found no evidence of malingering. He was further of the opinion that Brooks would be running a risk if he lifted more than forty or fifty (pounds.

The pronouncement in Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685 (1961), settled the law with reference to non-scheduled injuries. “Loss of the use of the body as a whole” involves two factors. The first is the functional or anatomical loss. That percentage is fixed by medical evidence. Secondly, there is the wage-loss factor, that is, the degree to which the injury has affected claimant’s ability to earn a livelihood. As stated in Mann v. Potlatch Forests, 237 Ark. 8, 371 S. W. 2d 9 (1963), the second element is to be determined by the Commission, based on medical evidence, age, education, experience, and other matters reasonably expected to affect the earning power. We might add that whether an injured claimant can be trained to perform other work is ofttimes a factor.

Actually, the rule in Edens is far from new to jurisprudence. It is stated that “Arkansas was one of the last states to give consideration to loss of wages or diminution of earning capacity as an element in determining awards for disability.” It is by far the majority rule, as pointed out by Prof. Robert R. Wright in “Compensation for Loss of Earning Capacity,” Ark. L. Rev. 269 (1965).

Had a jury reached the same conclusion as did the Commission, we could not say there was no substantial evidence to support it; That is the test. Considering the medical testimony, age, experience, and education (all of which have been described), we hold the Commission’s findings to be substantially supported.

The remaining question concerns allowance of the attorney’s fee. For thirty-nine weeks ABF paid temporary total disability. Then for 124 weeks Brooks was paid for permanent partial disability based on 27% per cent permanent partial disability to the body as a whole. Under date of October 19, 1966, ABF gave notice of suspension of compensation. That was the proper expiration date if its liability did not exceed the formula based on 27% per cent disability. Objection was made either by the claimant or by his attorney and the matter was set for hearing. One week before the hearing, counsel for ABF advised Brooks’ attorney that ABF would accept an evaluation of 50 per cent permanent partial disability. It is ABF’s contention that it has never controverted 50 per cent partial; Brooks contends that it controverted any amount over 27% per cent partial. The Commission found that ABF had in fact controverted any disability exceeding 27% per cent. For 124 weeks ABF contended that was the maximum disability and suspended payments when it had met that liability. After Brooks employed counsel to protect his rights, and just one week before the scheduled hearing, ABF raised the figure to 50 per cent. ABF’s suspension of payments amounted to a declaration that it considered its obligation completed and intended to pay no more. Brooks protested. Therefore the issne was joined. Dr. Stanton advised ABF under date of June 6, 1966, that he fixed the medical disability at 50 per cent. Notwithstanding, ABF continued to make payments on the basis of 27% per cent until October, at which time notice of final payment was given. We cannot say the Commission erred.

Affirmed.


source: Caselaw Access Project

author: JOHN A. Fogleman, Justice.

license: Public Domain

text:
    Elzie HEFLIN v. PEPSI COLA BOTTLING CO. et al
    5-4414
    424 S. W. 2d 365
    Opinion delivered February 26, 1968

      Silas II. Brewer Jr., for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellees.
   JOHN A. Fogleman, Justice.

The issuie here is whether appellant’s claim for additional compensation is barred by the terms of Ark. Stat. Ann. § 81-Í318(b) (Repl. 1960). The subsection reads :

"Additional compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of accident, whichever is greater.”

Appellant suffered a compensable injury on May 7, 1960. He was examined and treated by Dr. Richard M. Logue over a period extending from June 15, 1960, until his discharge on January 15, 1963. On Janulary 21, 1963, the doctor made a report in letter form to United States Fidelity & Guaranty.. Company, the insurance carrier. The concluding paragraph includes a statement that a bill for services is enclosed. The final payment to appellant for temporary total and permanent partial disability was made on May 6,1964, and the Workmen’s Compensation Commission showed the matter closed" on September 17, 1964. On November 1, 1965, Dr. Logue sent claimant a statement for $715.00 for medical services rendered during the period from January 2, 1962, to January 15, 1963. The statement was not sent to the Commission, but was paid by the carrier on November 19, 1965, without any order of the Commission ever having been made. Subsequently, Dr. Logue rendered a statement for $10.00 for an examination of appellant on January 18, 1965. Appellees did not know of this examination and did not pay the bill therefor. Appellant filed a claim for additional compensation on April 26, 1966. The referee, Commission and circuit court all held that the claim was barred by § 81-1318 (b).

Appellant contends that the payment of the bill for medical services on November 19, 1965, was the “last payment of compensation” in the sense of the statutory provision, so that his claim was well within the statutory period. We do not agree.

The employer (or his insurance carrier) is required to furnish medical service to an injured employee. Ark. Stat. Ann. § 81-1311. Compensation under the act includes such medical services. Section 81-1302 (i); Ragon v. Great American Indemnity Co., 224 Ark. 387, 273 S. W. 2d 524. Appellant says that the holding of this court in Reynolds Metals Co. v. Brumley, 226 Ark. 388, 290 S. W. 2d 211, supports his contention. We do not so construe this decision. The opinion in that case points out that the holding in the Bagon case followed the general rule that the furnishing of medical services constitutes payment of compensation within the meaning nf § 81-1318(b) and that such “payment” suspends the running of the time for filing a claim for compensation. The decision is not in any respect based on the time at which the medical bills were paid. This holding is sound because the claimant is “compensated” by the furnishing of the services and not by the payment of the charges therefor.

Later, in Phillips v. Bray, 234 Ark. 190, 351 S. W. 2d 147, this court held that a position identical to that of appellant here was erroneous. The claimant there sought to avoid the bar of the statute by showing that a doctor’s bill had not been paid by the employer. The Workmen’s Compensation Commission and the Grant Circuit Court found that the bill had not been, but should be, paid. In holding against the claimant’s contention, this court said:

“* * * Although appellant has not specifically pointed out just how and why this would toll the statute, we assume it is because medical bills are a part of compensation and therefore the one year limitation would not begin to run until the last bill is paid. If this contention is sound, then appellant still has time in which to file his new claim. For reasons set out below, we have concluded that the above contention is not tenable.”

The court then interpreted § 81-1311 to require a doctor to present his charges to the Workmen’s Compensation Commission for approval before the claim is finally-processed. The opinion states that the burden was on the claimant to show that the unpaid medical bill had been duly filed with the Commission, since “otherwise his claim ivas obviously barred by the one year statute of limitations.” No effort was made here to show that Dr. Logue’s bill had ever been presented to the Commission. We cannot see how the payment of this just bill for medical services furnished more than one year prior to the filing of appellant’s claim for additional compensation changes the situation prevailing in the Phillips case. That it does not do so is plainly indicated by the court’s affirmance of the trial court and the Commission there. The- court clearly stated that there was no inconsistency in its opinion and the' findings of the Commission and the circuit court that the employer was indebted to the doctor for the amount of his unpaid bill. The opinion stated that the Commission had the authority to order payment of a just bill whether filed in accordance with the statute or not, but nevertheless held that _ claimant was barred.

Appellants cite cases from other jurisdictions claiming support for their position.. While we find it unnecessary to resort to these holdings, in view of our own decisions, it is noted that most of them also recognize that it is the furnishing of the Imedical service, not the payment therefor, which constitutes the “payment of compensation. ’ ’

The judgment is affirmed.


author: J. Feed Jones, Justice. JohN A. Fogleman, Justice,

text:
    B. A. ADKINS v. Sam KELLEY d/b/a Kelley’s Grill
    5-4447
    424 S. W. 2d 373
    Opinion delivered February 26, 1968

      Henry & Boyett, for appellant.

      Lightle & Tedder, for appellee,
   J. Feed Jones, Justice.

B. A. Adkins filed suit in the White County Circuit Court against 'Sam Kelley, doing business as Kelley’s Grill. The suit was for $25,-000.00 compensatory and $25,000.00 punitive damages for personal injuries alleged by Adkins as a result of injuries he sustained in an altercation with Kelley’s employees in the kitchen of .Kelley’s Grill. A jury trial resulted in. a verdict upon which judgment was entered in favor of Adkins for $300.00 compensatory damage and nothing for punitive damage, and Adkins has appealed. The only question presented to us is whether the trial court erred in instructing the jury. Appellant contends that there was such error, and he relies on the following points for reversal:

“In modifying plaintiff’s (appellant’s) instruction No. 7- on damages and in giving the court’s modified version:
“The trial court erred in holding as a matter of law that AMI 2202 was not a measure or element of damages, rather a factor in determining other elements.
“The trial court erred in modifying AMI 2208 to limit, as a matter of law this element or measure of damag'es to any embarrassment or mental anguish suffered as a result of any scars and disfigurement or visible results of the injury.”

The facts very briefly are these: The appellant, Adkins, had been a regular customer in taking meals at appellee Kelley’s Grill. On the evening of August 7, 1963, appellant met some invited guests at Kelley’s Grill for dinner. A waitress at the Grill took their orders and when the food was not served after a considerable period of time, they were advised by the waitress, upon inquiry, that the cooks in the kitchen of the Grill had refused to prepare their orders. Appellee, Kelley, was away on. business and bad left Ms brother in charge of the cafe. The brother was temporarily off the premises, so appellant went into the kitchen to determine why the cooks had refused to prepare the food. An altercation ensued and one of the cooks struck appellant with a large knife or meat cleaver, resulting in a rather extensive laceration, about eight inches in length, extending along the left side of appellant’s neck from up in the hair line near the occipital protuberance to neiar the left clavicle.

At the trial of the case, Dr. T. L. Adair, who treated Mr. Adkins, testified that Mr. Adkins has some residual limitation of motion in his neck because of the injury, and as to the specific cause of this, Dr. Adair testified as follows:

“Q. What, doctor, medically would be the cause of that?
A. Probably scar formation, or shortening. Atrophy from disuse and shortening, and scar.
Q. If it were scar formation, would it be that that is visible, or that beneath the skin?
A. It would probably be the scar to ‘ the muscle fascia, or sheath, muscle sheath and fascia. The skin might limit him some. I meian it might limit him, some, but I don’t think the scar is big enough for that.”

The trial court refused to give appellant’s requested instruction No. 7, on the measure of damages, as offered by appellant, but did give it as modified by the court, and this is the error complained of by the appellant on tMs appeal.

Appellant’s requested instruction No. 7 followed the general instructions laid down in AMI 2201 in .setting out the elements of damage to be considered. It followed AMI 2202 (B) in paragraph 1 as to the nature, extent, duration, and permanency of any injury, and followed AMI 2208 in paragraph 6 as to scars, disfigurement, and visible results of injury.

Appellant requested instruction No. 7, as follows:

“If you find for the plaintiff, you must then.fix the amount of money which you find' will reasonably and fairly compensate him for any of the following elements of damages:
1. The nature, extent, duration and permanency of the injury.
2. The reasonable expense of any necessary medical care, treatment and services received.
3. Any pain, suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future.
4. The value of any earnings lost or reasonably certain to be lost in the future.
5. The present value of any loss of earning capacity or ability to earn, in the future.
6. Any scars and disfigurement or visible results of his injury.”

The trial court gave appellant’s instruction No. 7 in a modified form, as follows:

“If you find for the plaintiff, you must then fix the amount of money which you find will reasonably and fairly compensate him for any of the following elements of damages:
1. The reasonable expense of any necessary medical care, treatment and services received.
2. Any pain, suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future.
3. The value of any earnings lost.
4. The present value of any loss of earning capacity or ability to earn in the future.
5. Any embarrassment or mental anguish suffered by reason of any scars and disfigurements or visible results of his injury.
In arriving at these amounts, you may take into consideration the nature, extent, duration and permanency of his injuries.
Whether any of these things have been proved is for you to decide.”

Thus, we see by modifying paragraph 1 of the instructions requested by the appellant (AMI 2202), the trial court eliminated the jury’s consideration of “nature, extent, duration and permanency of the injury” as elements of damage, but confined the jury’s consideration of these elements as factors to be considered in assessing the “ amounts” of the other elements of damage. In this, we conclude, the court erred.

In volume 18 of Arkansas Law Review, at p. 305, is found the following statement:

“Loss of earning capacity as an element of damages is sometimes confused with permanency of the injury, which is universally recognized as a separate element of damage. A lawyer or minister might lose an arm with no loss of earning capacity, but he would still be entitled to recover for the permanency of his injury. A hopeless mental defective with no earning capacity can recover for loss of his sight, because he has sustained a permanent injury. A recent Oklahoma decision makes plain the distinction between these two separate elements of damages against the contention that a doublé recovery, was being allowed. It has been said that a permanent injury is one that deprives plaintiff of his right to live his life in comfort, and eas’e without added inconvenience or diminution of physical vigor, but there may be no pecuniary loss or loss of earning capacity in conjunction.” (Emphasis supplied.)

This Law Review article is replete with footnotes citing many cases from this, and other jurisdictions, including Shebester, Inc. v. Ford, 361 P. 2d 200 (Okla. 1961). Also noted is 29 NAOCA L. J. 195, with an exhaustive comment on the point. The comment in 29 NACCA Law Journal, cited in the footnote, supra, is comprehensive, with many pertinent citations on this point, and states on pages 198 and 200 in accordance with our own views, that:

“It is sometimes incautiously stated that a verdict awarding damages for future disability covers only pain and suffering, beyond the special items (expenses and loss of earning power). Such a view is inaccurate, because compensation is routinely awarded for disability per se, as the S'heb ester case (supra) points out, and also for the non-peeuniary, non-pain aspects of the disabled condition, such as deprivation of a normal life and of a chance to pursue non-economic hobbies or recreation.
* * #
As the principal case, S'hebester, demonstrates, permanent and continuing disability is not only an element of damages itself but also a type of injury, which when satisfactorily* proved, is the basis of award of the other elements of damages, such as loss of capacity to work or post-trial pain, and suffering.”

We are of the opinion that the trial court erred in its failure to give AMI 2202 as offered under paragraph 1 of appellant’s requested instruction No. 7 and in modifying this instruction as pointed out, supra.

Appellee contends that since the permanency of the injury was in dispute, the instruction originally offered by appellant [AMI 2202 (B)] was not the proper instruction, but that AMI 2202 (C) should have-been used. We note thiat if permanency was disputed by appellee here, it was only by the general denial in his anstwer to appellant’s complaint and not by evidence presented to contradict the testimony of Dr. Adair, when he testified as follows:

“. . . He has some residue. He’s reached a plateau of improvement, and there is solme residue to his injury. And those things that you mentioned, of •scar and pain and limitation of motion are the residue. And I will say that he has reached ia plateau, you know, he probably won’t get any better from that.”

Appellee also contends that even if there was error, it was harmless and not prejudicial to appellant. With this we cannot agree. A close inspection of the elements of damages in the instruction given, shows that none of these elements pertain to compensation for permanent injury. Limiting the consideration of the jury to permanency as a factor in the other elements of damage is not sufficient when permanency itself is an element. With this in mind, we cannot say that the error was harmless. The evidence was sufficient for the jury to be charged on permanency of appellant’s injury as an element of damages.

We conclude that the trial court erred, and this case must be reversed, because of the modification the trial court made in AMI 2208. Paragraph 5 of the instruction, as modified by the trial court, takes scars, disfigurement and visible results of injury, out of the elements of damage where they belong under AMI 2208 and where they have been at least since 1914. Ferguson & Wheeler Land, Lumber & Handle Company v. Good, 112 Ark. 260, 165 S. W. 628. This instruction, as modified, limited the jury’s consideration to embarrassment and mental anguish suffered by reason of any scars and disfigurement or visible results of the injury. Scars and disfigurement may be real elements of damage separate and apart from mere embarrassment or the mental anguish they may cause. (See Volentine v. Wyatt, 164 Ark. 172, 261 S. W. 308, and other cases cited in comment under AMI 2208). The appellant was entitled to AMI 2208, as requested under proof in this case, and the trial court erred in its refusal and in its modification.

We feel that this case calls for reiteration, with added emphasis, of the per curiam order of this court on April 19, 1965, wherein it was said:

“If Arkansas Model Jury Instructions (AMI) contains an instruction applicable in a civil case, and the trial judge determines that the jury should he instructed on the subject, the AMI instruction shall be used unless the trial judge finds that it does not accurately state the law. In that event he will state his reasons for refusing the AMI instruction. Whenever AMI does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when an AMI instruction cannot be modified to submit the issue, the instruction on that subject should be simple, brief, impartial, and free from argument,” (Emphasis supplied.)

The purpose of the AMI was to save valuable time in settling instructions at the trial level, to attain uniformity, to reduce confusion, to allow composition of instructions by the courts and attorneys with confidence and ease, and insofar as possible, with such accuracy as to reduce the number and necessity of appeals. The per curiam requirement, supra, recognizes the necessity for flexibility in the use of AMI. Thus, the trial judge may modify if he feels that AMI does not accurately state the law, and, by placing his reasons in the record, the attorneys in considering an appeal, and the appellate court, in considering the points relied upon, may go straight to the heart of the alleged error and adjudge the validity of the refusal or modification of the instruction with greater dispatch and with greater accuracy as to specific point relied upon. To accomplish the purposes of AMI we must insist upon its use where applicable; to hold otherwise, would place us back into the confusion and inaccuracy of the pre-AMI era and destroy the usefulness and purpose of AMI.

For the errors indicated, the judgment of the trial court is reversed and this cause remanded for a new trial.

Reversed and remanded.

BbowN, J., concurs.

FoglemaN, J., dissents.

JohN A. Fogleman, Justice,

dissenting. I cannot see how there was any prejudice in the .instruction on disfigurement as given by the court on the facts in this record. All the eases I have been able to find in this state base this element of dafmage on humiliation and embarrassment, and other elements covered in the instruction that was given, Ferguson & Wheeler Land, Lumber & Handle Co. v. Good, 112 Ark. 260, 165 S. W. 628; Gaster v. Hicks, 181 Ark. 299, 25 S. W. 2d 760; Perkins Oil Co. of Delaware v. Fitzgerald, 197 Ark. 14, 121 S. W. 2d 877.

I can conceive of many circumstances in which there will be additional damages, but I do feel that the AMI instruction as drawn permits, and actually suggests, double damages, particularly where the instruction is given to include the nature, extent, duration and permanency of the injury as an elelment. Whatever damages may be recoverable for disfigurement that are not covered in the elements permitting recovery for earnings to be lost in the future, loss of earning capacity and pain and suffering and mental anguish are certainly included in the nature, extent, duration and permanency of the injury. It is quite reasonable to suppose that one could be disfigured so as to handicap him in earning a livelihood and to require future medical attention, but I cannot see why disfigurement should be considered separately any more than injuries to the back and neck in the usual whiplash case or non-disfiguring injuries to other parts of the body. If there is any element that is not covered in case of disfigurement in the usual elements of damage, then I cannot see how it would be any more than humility and embarrassment which I feel are covered by mental anguish. In this respect I dissent from the majority.

I submit that the model instruction should be reexamined and more specific guides given for use of “disfigurement” as an element of damages.

       We do not imply that both of these instructions, AMI 2206 and AMI 2207, should have been given in the form requested. (:See note on use AMI 2207.)


author: Conley Byrd, Justice.

text:
    Mrs. T. L. MASTERSON v. Iris TOMLINSON
    5-4475
    424 S. W. 2d 380
    Opinion delivered February 26, 1968

      Rhine & Rhine, for appellant.

      Cecil Grooms, for appellee.
   Conley Byrd, Justice.

This is an appeal from a decree divesting appellant, Mrs. T. L. Masterson, of title to an automobile replevied by her from appellee, Mrs. Iris Tomlinson. Appellant’s husband, T. L. Masterson, executed a conditional sales contract for purchase of a 1960 Chevrolet from Horton Chevrolet Company, through GMAC. When the contract was paid out and certificate of title to the car was sent by GMAC to Mas-terson, he assigned the title to appellant. She then filed a replevin action and obtained possession of the car from appellee. Appellee’s answer and successful motion to transfer to chancery alleged that appellee had purchased the car, that she had traded in her old car for the down payment, that GMAC had refused to finance the car for her because she was a waitress and her income was below the level required by GMAC, that as an accommodation Mr. Masterson had agreed to take legal title and to sign the necessary papers to permit her to finance the car through GMAC, and that she had made each and every payment until the lien was fully paid. Asserting equitable ownership of the title, which can not be asserted iat law, she prayed for transfer of the cause to chancery and for damages for the wrongful taking.

The chancellor awarded the car to appellee, but denied her damages for the unlawful detention.

Appellant argues that the pleadings and evidence do not support the decree. Óf course, legal title to the car was in Masterson when he assigned the title to appellant without consideration. However, appellee’s allegation that Masterson signed the contract and took title in his name only as an accommodation was substantially corroborated by appellee’s witness Holland, the car salesman. He testified tliat 'appellee had ootme to the ear lot several times, that she had traded in a 1956 Chevrolet for the down, payment, that when he started to get her financial statement he had told her that “ GrMAC will not finance anyone who works in a beer joint” and suggested that the car be put in a friend’s name. "When Mas-terson came to the car lot, Holland explained that all the papers would be in Masterson’s name, except that the application for insurance would show appellee’s name, birth date and driver’s license number as the driver. Holland testified that he had seen appellee make a number of payments at the car lot, which in turn were forwarded to GrMAC, and. that he had never seen Mas-terson make any payments. Appellee introduced a number of cash receipts for $54.55 each from Horton Chevrolet Company, as well as a current pink slip, all of which were made out to T. L. Master-son. Mr. Masterson did not testify, although present in the court room.

All in all, we find that there is sufficient evidence to support the chancellor’s decree vesting legal as well as equitable title in appellee. As was pointed out in House v. Hodges, 227 Ark. 458, 299 S. W. 2d 201 (1957, and Robinson v. Martin, 231 Ark. 43, 328 S. W. 2d 260 (1959), “Certificate of title [to a motor vehicle] is not title itself but only evidence of title.”' Appellant, being an assignee of the certificate without consideration, stands in no better position than her assignor. The evidence is sufficient to show a resulting trust existed in favor of appellee. “The rule rests on the doctrine of equitable consideration and on the presumption or implication of law of the intention of the purchaser that he intends the purchase for his own benefit and the conveyance in the name of another as a matter of convenience or arrangement for collateral purposes.” 54 Am. Jur., Trust, § 207. Mortensen v. Ballard, 209 Ark. 1, 188 S. W. 2d 749 (1945).

On cross-appeal, appellee contends that the court erred in refusing to award her damages for detention of her car. In its decree, the court found that appellee should he awarded damages, hut failed to make proper proof to sustain an award. Review of the record sustains the chancellor’s findings.

Affirmed.


author: Conley Byrd, Justice.. Lyle Brown, Justice,

text:
    Harry A. BELFORD v. Brenda HUMPHREY
    5-4480
    424 S. W. 2d 526
    Opinion delivered February 26, 1968
    [Rehearing denied March 18, 1968.]

      Rose, Meek, House, Barron, Nash & Williamson, and John D. Eldridge, for appellant.

      Fletcher Long, for appellee.
   Conley Byrd, Justice..

This appeal by Harry A. Bel-ford puts before us the issues of the permanency of the injuries of appellee Brenda Humphrey and the exces-siveness of the $78,000 jury verdict in her favor. The litigation stems from an automobile collision in which Belford’s vehicle struck the rear of appellee’s “Thunderbird” with such force that both sides were “bucked out” and the left front seat was broken.

Following the collision on June 3, 1965, appellee, age 25, was hospitalized under the care of Dr. H. G. Lanford until June 10, 1965. During hospitalization she was treated for a whiplash injury of her cervical spine. Her treatment consisted of cervical traction, muscle relaxants and medication for pain. She was removed from Crittenden Memorial Hospital in West Memphis, Arkansas, to her home in McCrory by ambulance.

The day following her return from'the hospital the pain was so unbearable that she screamed when her bed was moved. A local doctor was called about 3:00 to 4:00 a.m., who gave her a shot to relieve the pain. The pain continued to such an extent that she was returned to the hospital on June 17, 1965, where she again was put in traction and given muscle relaxants and pain medicine. She was discharged on July 1, 1965. At the time of her August 26, 1965, visit to the doctor, she was unable to return to work. Dr. Lanford testified that at that time she had a severe whiplash injury and he did not know what would be the outcome. For eight to ten months thereafter she slept in traction. Exercise and weight lifting were subsequently prescribed. At the time of trial on January 30, 1967, appellee still complained of pain when she bent her neck forward as one does when ironing and typing, she was still on muscle relaxants, and had an appointment with her doctor some two weeks hence. Hospital 'and medicaH>ills had accumulated in excess of $1,426.63 and were still accruing.

Testimony showed that appellee had been self-sustaining from her high school graduation in 1959 to the date of the accident. At that time she had been working at the General Electric plant in Memphis, Tennessee, where she earned in excess of $300 per month. Her job had required the bending of her neck to look down while testing light bulbs. iShe was in touch with General Electric for a year after the accident before they mailed .her her separation papers.

"When the doctor advised appellee that she could try to work, some three months before trial, she applied for employment ait the Little Stock employment office, Timex, the Little Rock Police Department as a meter maid, the Newport Telephone Company, and the Augusta Corporation. Each time application was made she was asked to state why she had left her last job and to give her physical history. By trial date, she had been unable to obtain employment although she understood she was first up for the next available meter maid job with the Little Rock Police Department at a monthly salary of $235.

Prior to the accident appellee enjoyed 'bowling, but this she cannot do any more. She also liked to hunt and fish, but is unable to do this without pain.

Dr. H. G. Lanford testified that appellee had had pain during the entire course of her treatment. This he based on both subjective and objective symptoms, so that he did not rely solely upon her credibility to determine that she had pain. Her first real improvement was in November 1966 and resulted from exercises designed- to strengthen her neck muscles. Dr. Lanford testified that he had examined her in January 1967 before the trial and that she had suffered a personality change; also, that with the history of her injury and the long recovery period involved, she would have difficulty in finding employment anywhere a physical examination was given. On cross examination he stated emphatically that she would have prolonged pain for several hours when she held her head forward for any period of time. The doctor believed appellee incapable of any work involving the bending of her neck forward or backward.

Appellant introduced evidence to the contrary, but because review of a jury finding is limited to the substantial evidence rule, we have stated the facts in the light most favorable to appellee.

The issue of permanency arises through an objection to the instructions on the issue of damages, the mortality table and present value. Appellant points to our cases such as St. Louis, I. M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S. W. 104 (1913). and Midwest Bus Lines v. Williams, 243 Ark. 854, 422 S. W. 2d 869 (1968), and argues that the issue of permanency should not have been submitted to the jury in the absence of expert medical testimony that the injuries were permanent to a reasonable degree of certainty.

Appellee argues that the injury here was such that a permissible inference of permanency was demonstrated by the evidence. See Missouri Pac. Transp. Co. v. Mitchell, 199 Ark. 1045, 137 S. W. 2d 242 (1940), and Bailey v. Bradford, 244 Ark. 8, 423 S. W. 2d 565 (1968).

Where the injury is only subjective in character and of such a nature that laymen cannot with reasonable certainty know whether there will be future pain and suffering, it is obvious the courts must demand expert opinion testimony. On the other hand, when the injury is objective in nature, such as when a limb is severed, it is obvious that expert opinion testimony is not a prerequisite to submission of the issue of permanency to the jury. See 31 A.tp. Jur. 2d, Expert and Opinion Evidence, § 119. Between the two' extremes are gray areas in which the issue of permanency becomes a matter of judgment.

Here the injuries had persisted for some twenty months; appellee had suffered a personality change; she was unable to perform certain movements without pain; she will have difficulty obtaining employment where a physical examination is required; and she was still taking eight muscle relaxant pills per day at time of trial. After reviewing the record, we are unable to say that it was error to submit the issue of permanency to the jury.

Appellant also complains of error in submitting to the jury the issues of diminished earning capacity in the future and future medical expenses. We hold these contentions to be without merit. The record shows that appellee had sought employment before the trial date and that if she had been able to find employment within her capabilities, the remuneration would not have been equal to her income at the time of her injury. Regarding future medical expense, appellee was and had been continuously under the doctor’s treatment — in fact she had an appointment with him two weeks following the trial. Since the jury had before it the medical expenses that had accrued, it would not have been pure speculation for the jury to calculate the future expense upon the history of the expense to the date of trial.

Appellant filed two motions for new trial. The first, in addition to the issues above discussed, raised the issue of excessiveness of the verdict. The second alleged that subsequent to the trial appellee, on March 1, 1967, went to work as a meter maid at the monthly rate of $235, and that she had not missed any work up to and including July 4, 1967. Except for the excessiveness of the verdict, hereinafter discussed, we hold that the trial court did not abuse its discretion in overruling tbe motions for new trial.

On tbe excessive verdict issue, the record shows special damages in the nature of medical expense and lost wages in excess of $8,000. In addition appellee suffered the injuries heretofore set forth. After reviewing the record in detail, we are unable to find sufficient evidence to sustain a verdict in excess of $58,000. If appellee will enter a remittitur for $20,000 within seventeen juridical days, the judgment will be affirmed. Otherwise it will be reversed and remanded for new trial.

BrowN, Fogleman and Jones, JJ., dissent.

Lyle Brown, Justice,

dissenting. The trial court permitted the jury to award damages based on permanent injuries and to compensate for future medical expenses. I would bold the submission of these issues to have been erroneous.

Where an injury per se does not show permanency to a reasonable degree of medical certainty, and where there is absent a medical opinion reasonably indicating permanency, the question of permanency should not be submitted to the jury. See St. L. I. M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S. W. 104 (1913); Midwest Bus Lines v. Williams, 243 Ark. 854; and 85 ALR 1022. The recited requirements are fully supported by a line of our holdings cited in the case of Keaton v. McCook, 210 F. Supp. 226 (1962); that is not to say that the certainty must be absolute, but it must preclude mere conjecture or even probability.

Miss Humphrey suffered a whiplash injury to the neck. Her doctor testified that in 1965 he found a muscle spasm which could not be faked. At that time it was his opinion that as a result of the injury she could turn her head to the right only partially and that the movement of the head upward was then limited by approximately fifteen per cent. Then upon examination in 1966, he was “delighted” with her “dramatic changes for the better” and concluded that prescribed exercises resulted “in improvement.” Later in his testimony he made this statement: “I think this girl will have difficulty finding employment anywhere a physical examination is given”. Yet the doctor does not say just how long that situation, in his opinion, would continue.

Miss Humphrey testified, describing her difficulty in neck movements and headaches. Her visits to the doctor have been virtually discontinued. She takes some type of tablets to relieve her muscle spasms and headaches. In her last two job applications she has stated that she had no physical limitations.

Appellant offered the testimony of an orthopedic surgeon who had been called upon to examine Miss Humphrey for the Social Security Administration. The first examination was in 1965 and the only other examination was in 1967, the latter apparently being for the purpose of testifying. It was his finding that she had sustained a whiplash injury and had received excellent treatment. He found no permanent injury.

Miss Humphrey’s doctor was conceded to be an outstanding surgeon. He was not ashed to give a medical opinion as to the permanency of the alleged injury. That fact is particularly significant in view of the unqualified opinion of appellant’s doctor that there was no permanency.

The conclusion of this dissent is not out of harmony with our recent holding in Bailey v. Bradford, 244 Ark. 8, 423 S. W. 2d 565 (opinion of February 5, 1968). There the jury had only lay testimony with which to evaluate permanency. However, the objective evidence of appellee’s injuries in that case, together with medical testimony of severe brain damage, were sufficient to indicate the permanency of her injuries.

To permit appellee to recover for future medical expenses presents a still more serious error. The only testimony in that respect is that she was taking pain tablets, the cost of which is not found in the record. There was no medical prediction that she would ever have to undergo future surgery or hospitalization.

I would reverse and remand for new trial.

Fogleman and Jones, JJ., join in this dissent.


author: Bruce H. Shaw, Special Justice.

text:
    James HARRIS et al v. GUARANTY FINANCIAL CORPORATION
    5-4243
    424 S. W. 2d 355
    Opinion delivered February 26, 1968

      H. Clay Robinson and Harry C. Robinson, for appellants.

      Griffin Smith, for appellee.
   Bruce H. Shaw, Special Justice.

In this appeal appellants seek to void a promissory note on the ground of usury. The Chancellor entered a judgment on the promissory note against appellants in the sum of $5,-941.00 with interest at the rate of 10% per annum from the date of the judgment until paid.

The pertinent facts as disclosed in the transcript are not disputed. On March 6, 1963, appellants, James Harris and his wife, Elsie Lee Harris, entered into a construction contract with Joe Lee Homes, Inc. for the construction of a shell home. The construction contract provided that the appellants would pay $10.00 in cash on signing the construction contract, receipt of which was acknowledged, and a balance of $5,825.00 payable in monthly installments of $69.61 each, beginning May 1, 1963. The construction contract also provided that the appellants would execute a promissory note and deed of trust.

The promissory note and deed of trust were also executed March 6, 1963. The note and deed of trust provided for an indebtedness of $5,825.00 with interest from the date of execution until' paid at the rate of 10% per annum, payable in 144 consecutive monthly installments ■of $69.61, the first installment due May 1, 1963. The note provided that in the event of default for a period of one month or more the entire principal indebtedness with accrued interest at the option of the holder would become due and payable. It also provided for payment of attorney’s fees and cost of collection together with other provisions not material to the issues in this appeal. The promissory note and deed of trust was assigned by Joe Lee Homes, Inc. to appellant, Guaranty Financial Corporation. Appellants defaulted on the installment due August 1, 1965, and the principal balance due at that time was $5,216.36.

Appellants contend that the note was usurious for the reasons that:

(1) A 5% late charge was assessed on the monthly payments after default.
(2) That interest computed on a daily basis rendered the transaction usurious because of an improper credit of the escrow account.
(3) That a $50.00 charge for title work was improper and should be charged to interest.
(4) That the $10.00 cash down payment called for by the construction contract rendered the transaction usurious.

Appellee denies that the inclusion of any of the -items mentioned rendered the transaction usurious.

After appellants’ default on the August 1, 1965, payment, appellee, in its subsequent collection letter, assessed a charge for delinquency of an additional $3.83. The appellants contend this late charge should be included as interest to test the transaction for usury. In Carney v. Matthewson, 86 Ark. 25, 109 S. W. 1024, a promissory note with an interest rate at 10% per annum provided that if the interest was not paid annually it would become a part of the principal and thereafter bear interest as principal. The Court held that the late charge provided in the instrument after delinquency was a penalty and did not render the transaction usurious. In Phipps-Reynolds Co. v. McIlroy Bank & Trust Company, 197 Ark. 621, 124 S. W. 2d 222, the Court held that the lender, in considering delinquent interest to be part of the principal and to also bear interest, did not thereby render a transaction usurious. The late charge in the instant action was not agreed upon between the parties to the note and construction contract. The attempt to collect the $3.83 in the collection letter which is in the nature of a penalty for delinquency does not render the transaction usurious.

After default appellee computed interest from August 1, 1965, until February 1, 1966, as $304.22. This interest computation, which is $1.43 daily, appellants contend renders the transaction usurious if the balance in the escrow account of $60.85 is credited against the unpaid principal of $5,216.36, thereby reducing it to $5,-155.51. It is not disputed that the escrow account was properly maintained. Suffice it to say that any credit of the balance in the escrow account would be applied first to interest and then to principal. To test a note and interest for usury the escrow account cannot be credited against the unpaid principal because the transaction must be viewed at the time consummated and not in relation to a balance that might thereafter accumulate in the escrow account. Appellants cite no authority which would justify applying an escrow account balance in such a manner. In other words, the balance in the escrow account cannot be used to test the transaction for usury when the underlying note and the interest thereon is lawful and does not exceed the 10% per an-num maximum limitation imposed by the Arkansas Constitution.

The proof reflects that a charge was made and agreed to of $50.00 for “title work”; that this $50.00 was expended by the lender as a premium for title insurance, insuring- the title of the mortgag-ed property. In support of their contention that the $50.00 charge for title insurance premium, and the $10.00 down payment used for a credit report were improper and rendered the transaction usurious, appellants cite Schuck v. Murdock Acceptance Corp., 220 Ark. 56, 237 S. W. 2d 1 (1952), Hare v. General Contract Purchase, 220 Ark. 601, 249 S. W. 2d 973 (1952), and Winston v. Personal Finance Company of Pine Bluff, 220 Ark. 580, 249 S. W. 2d 315 (1952), and state that these cases establish a rule that a lender may not assess service charges and increase the cash price for merchandise. These three cases involve consumer purchases or consumer loans and are not construction contracts as presented here. In 8'chuck v. Murdock, supra, the Court found the seller and the finance company listed a cash price for an automobile and after allowance of a down-payment and a trade-in, added on certain charges. The Court found on the facts that the add-on was an unauthorized charge in an attempt to evade the usury prohibition.

In Winston v. Personal Finance Company, supra, a loan was made of $108.00 evidenced by a promissory note. The borrower, Winston, received only $95.04. The note was for twelve (12) months and payable at $9.00 per month with interest on each monthly installment. The evidence disclosed that interest was calculated to be $5.40 with a service charge of $7.56 resulting in the $12.96 difference between the face amount of the note and the $95.04 Winston received. The Court found that of the $7.56 labeled as service charge, $3.76 was received by the lender for services of its salaried employees. The Court specifically finds that the $3.76 exacted for services performed by the lender’s employees and fifty cents for a credit report were in reality “nothing more or less than interest charge”. The Court, at page 585 of 220 Ark. states th!e following expenses may be charged by a lender in addition to the principal balance:

“The items ‘b’ and ‘o’ were the ordinary incidental expenses incurred by Personal in the course of its business. They were not items paid by Personal to a third person for the benefit of Winston. They are, not like the cost of (1) an abstract paid to a third person, or (2) a title opinion paid a lawyer, or (3) recording fees paid an official, or (4) insurance premiums paid a third party. These four numbered items just mentioned may be legal and valid charges when they are paid to a third party. We have upheld such fees, .in a'number of cases, but the facts •in each of those cases were different — in a most important particular — from those in the case at bar; because here, the fees, or ‘service charges’, were made by Personal to cover its own overhead costs and therefore were, in all essentials, interest on the money loaned.”

The Winston case holds that whether a particular charge is improper depends upon the facts and circumstances of each case. The Winston case establishes guidelines to test a transaction to determine whether or not a particular charge is a proper one. On the particular facts in that case the Court held that the charge for a credit report was not proper and should be considered as interest in determining the question of usury. We do not interpret this case to hold as a [matter of law charges for credit reports' are never proper. Whether a given charge may be properly made is a question of fact. Whether or not a particular charg'e is for the sole benefit of the lender or the mutual benefit of both the lender and the borrower is one element to be considered in determining the propriety of the charge. Another element is whether the charge received by the lender was actually disbursed to a third party for services rendered in the loan procedure or pocketed by the lender as. an application on his overhead for doing business. It can be readily seen that many charges which have been specifically approved by the Court, .such as charges for title work, abstract opinions, are charges beneficial to the lender as is a credit report but no case has held that these charges as a matter of law are improper solely because they benefit the lender.

The $50.00 charge far title work in the instant case, is a proper one and includable in the selling price when specifically authorized by the purchaser-buyer. The parties in this contract specifically agreed that title work was to be done and its cost was included in the construction contract. We can see no distinction between expending the $50.00 for title insurance premium and the use -of the agreed sum in abstract expense and other title expense incident to the transaction. It was not added on to the financed balance of the construction contract as an 'additional charge. Appellants cite Universal C. I. T. v. Lackey, 228 Ark. 101, 305 S. W. 2d 858, and Lowrey v. General Contract Corporation, 228 Ark. 685, 300 S. W. 2d 736, and contend that this charge for title work should be considered interest. These -cases cited by appellants involve add-on charges in automobile transactions for credit life insurance and are not analogous to charges for title work in real estate transactions which have been specifically approved by this Court.

In United Built Homes v. Knapp, 239 Ark. 940, 396 S. W. 2d 40, the Court found that certain closing cost items rendered a transaction usurious when it appeared that charges for credit life insurance and appraisal fees were not expended. The Court, however, states that appraisal fees and other charges under proper circumstances can be collected as proper closing costs. In the instant case the record discloses that all of the charges were expended for specifically the items called for and were not used as a sham to increase the interest rate.

In Mid-State Homes, Inc. v. Knight, 237 Ark. 802, 376 S. W. 2d 556, appellant Finance Company was the holder of a note in the principal sum of $3,830.00 payable in 72 monthly payments of $53.20 each. The purchaser disputed certain items for materials and labor and contended the transaction was usurious. The Court found the builder’s profit exceeded 10% of the contract price but that the profit on the underlying construction contract had no bearing on the issue of usury. It was shown that the builder and the finance company had identical corporate structures and officed at the same address. The Court did not find the transaction to be usurious as it distinguished between a loan and a construction contract. The same situation is presented in the instant case. The construction contract in this action signed by the parties provides for a price of $5,-835.00 with a $10.00 cash payment for a financed balance of $5,825.00. The terms of the note are identical to the terms of the construction contract as to the financial balance and does not exact a rate of interest that is usurious.

The $10.00 cash payment which is reflected in the contract signed by appellants was not added on to the financed balance in such a manner as to raise the financed balance $10.00 and include interest thereon. The contract clearly provides that the financed balance is $5,825.00 just as it appears on the promissory note. This same construction contract was presented to this Court in Guaranty Financial Corporation v. Harden, 242 Ark. 779, decided June 5, 1967. In that case the appellee here, who was the appellant then, relied upon a building contract, note and mortgage. The Court, in Guaranty Finance Corporation v. Harden, at page 780 of 242, states:

“The building contract, note, and mortgage were all executed together on October 1, 1965. The building contract was the basic instrument. By that contract Joe-Lee Homes agreed to construct a specified dwelling house for the Hardens for $6,288.00. The contract, after reciting a down payment of $10.00, goes on to say: ‘The balance of $6,278.00, plus interest, shall be paid in monthly installments of $75.01 beginning on the 1st day of January, 1966, and on the first day of each succeeding month thereafter until the whole of said indebtedness is paid. The Owner has concurrently herewith executed a promissory note and mortgage to cover the balance.’
“When the building contract and promissory note are read as one contract, as our decisions require us to do, it is crystal clear that the original principal debt was $6,278.00, with interest which can readily be calculated to be slightly less than the legal rate of 10 per cent per annum. All that the plaintiffs seek to recover is the unpaid principal plus accrued interest. Hence, the case falls precisely within our holding in Mid-State Homes v. Knight, 237 Ark. 802, 376 S. W. 2d 556 (1964), where we said: ‘The chancellor in holding the instrument to be usurious, apparently based his decision upon the fact that the appellant had exercised its option to accelerate the maturity of future payments and had filed suit for the full amount without making any deduction for the interest that had not yet accrued. This procedure, however, did not render the transaction usurious. In such a situation the court should merely refuse to permit the creditor to recover the unaccrued interest. Eldred v. Hart, 87 Ark. 534, 113 S. W. 21; Sager v. American Investment Co., 170 Ark. 568, 380 S. W. 654.’”

The Court in that case recognized that the financed debt was $6,278.00 with a $10.00 down payment, or a total price of $6,288.00. The Court found the contract and note were not usurious because the interest calculated on the financed debt of $6,278.00 was less than the maximum legal rate of 10% per annum. To the same effect in this case the principal balance that is financed is $5,-825.00 and is so recited in the contract and note. Assuming that the $10.00 item which is recited in this contract as cash down payment should be considered in testing the transaction for usury, the written contract provides that:

“In the event a credit report on the Owner unsatisfactory to the Builder is received prior to beginning construction of the house, Builder at its option may within ten (10) days thereafter cancel this agreement npon returning to Owner all of the deposit except the cost of the credit report and any recording fees.”

The only proof with reference to the $10.00 charge having been expended for a credit report was the testimony by the lender’s Vice President.

Assuming the burden of proof shifted to the lender to explain the charge as required by Jones v. Jones, 227 Ark. 836, 301 S. W. 2d 737 (1957), the trial court found that the $10.00 charge was not improper. The record contains no evidence which would support a contrary finding. The uncontradicted testimony of the lender’s Vice President was that the customary practice of the business was to obtain a credit report and such affirmative testimony was not contradicted. The testimony on this point was meager but was sufficient for the trial court to find that the appellee had met its burden of explaining the Ten Dollar charge and there is no evidence in the record to the contrary. The credit report was specifically provided for in the construction contract and was not an add-on item which the appellee put in its pocket under the ruse of a service charge. The $10.00 was not included in the principal balance of the promissory note and there was no interest paid on it. There is nothing in the record that establishes any cash credit price differential as is sometimes present in consumer goods transactions. The inclusion of the $10.00 payment in the contract clearly provides for a financed balance of $5,~ 825.00 as evidenced by the promissory note in almost identical terms as approved in Guaranty/Financial Corporation v. Harden, supra.

For the reasons herein given, the decree of the Chancery Court is affirmed.

George Rose Smith, Brown and Byrd, JJ., dissent. Fogheman, J., disqualified.


author: Carleton Harris, Chief Justice.

text:
    Charles Edward TOWNSEND v. CITY OF HELENA
    5309
    424 S. W. 2d 856
    Opinion delivered March 4, 1968
    [Rehearing denied April 1, 1968.]

      Harold B. Anderson, for appellant.

      Gene Raff, David Solomon and W. G. Dinning Jr., City Attorney, for appellee.
   Carleton Harris, Chief Justice.

Charles Edward Townsend, appellant herein, was convicted in the Municipal Court of the city of Helena on four misdemeanor charges growing out of a disturbance on the main street of that city. These convictions were appealed to the Circuit Court of Phillips County, and the combined charges were tried on May 23, 1967, before a Phillips County jury. Townsend was found guilty of public drunkenness, disturbing the peace, resisting arrest, and assaulting an officer. On the first two counts, he was fined $25.00; on the third count he was fined $50.00 and given thirty days in the Helena jail, and on the final count was fined $75.00, and given six months in jail. From the judgment entered on this verdict, appellant brings this appeal. For reyersal, three points, all relating to the defense of insanity, are raised, the contention being that Townsend was insane at the time of the commission of the offenses.

It is first asserted that the court erred in denying appellant’s motion for an order directing the Superintendent of the Arkansas State Hospital to deliver to appellant’s attorney and doctors all records on file with the hospital which pertained to appellant. The background of facts preceding this motion is as follows:

On January 6; 1966, eight or nine days after Townsend’s Municipal Court convictions, appellant’s mother, Beulah Ollway, called the constable of Claybum Township, P. A. Mays, and, according to the constable, reported that her son was acting “peculiar,” and was threatening bodily harm to himself; the mother desired that he be taken to the State Hospital. Mays, though obtaining no order of commitment, took appellant tb the hospital where he was admitted. After Townsend stayed thirty days, the constable returned him to his home. This evidently occurred during the early part of February, 1966, but the matter of insanity was not mentioned until the filing of this motion, over a year later. The motion reads as follows:

" That the defendant herein is charged with the misdemeanor. That the defendant voluntarily went to the State Hospital for mental observation and he was returned as sane; that the defendant has entered a plea of insanity and it will be necessary to have access to the files of the State Hospital in order to properly prepare himself with the proof of insanity.”

The order directing the superintendent to deliver the records was then prayed for.

It was not error for the court to refuse to grant this motion. Townsend had not been committed to the hospital, but had gone on his own accord. There is no reason to believe that he could not have obtained .the records himself, and certainly, without a showing that this could not be done, there was no reason for the court to order records of a private examination, i. e., not made under court order, to be turned over to appellant’s attorney and doctors.

It is next asserted that the “court erred in not committing the Appellant to Arkansas State Hospital when he pleaded not guilty by reason of Insanity as required by Arkansas Stat. 43-1301 [Repl. 1964].” This statute provides that whenever a prosecution of any crime has been instituted in the Circuit Court by indictment or information, and the defense of insanity is raised, “the judge shall postpone all other proceedings in the cause and shall forthwith commit the defendant to the Arkansas State Hospital for nervous diseases, where the defendant shall remain under observation for such time as the court shall direct, not exceeding one month.”

However, in 1949, Act 256 was passed, such act comprising Ark. Stat. Ann. § 43-1304 through 1309 (Repl. 1964). Section 43-1304 provides the procedure to he followed when a defendant is informed against or indicted on á felony charge (rather than crime); the statute likewise largely places the question of whether a defendant should be committed within the discretion of the trial judge, rather than making the committal requirement mandatory.

The court did not commit error. In the first place, the defendant was not charged with a felony. "We are aware of no case, and none lias been pointed out to us, in which even § 43-1301 has been construed to cover misdemeanors. But if that was the intent of the people, it certainly was changed by Act 256 of. 1949, for Section 7 of said act repeals all laws and parts of laws in conflict, and Act 256 definitely relates only to felonies.

In the next place, no motion or request for an order of examination was filed in the Circuit Court; nor was the court asked to appoint two doctors to examine appellant as a matter of determining if there were reasonable grounds to believe him insane. Summarizing, we hold that the statutory requirements, relative to committing an accused to the State Hospital fior observation, apply only where a defendant has been charged with a felony, and furthermore, that the court is given discretion in issuing such an order, as set forth in § 43-1304.

Finally, it is urged that the court erred in instructing the jury that there was not sufficient evidence “to sustain a verdict of insanity.”

There was no error in this instruction. What was the proof offered by appellant on the question of insanity? Creole Hall, a sister of Townsend, testified that she and her brother had formerly lived in Milwaukee, Wisconsin, and that appellant was admitted to the Milwaukee Health Center in 1960, staying there almost a year; he was then released to her custody, but was readmitted in 1962. Thereafter, he was again released, and returned to Ms home in Phillips County. The following statement was offered in evidence:

CHRIS J. BUSOAGDIA, M.D.
MEDICAL DIRECTOR ex 2-573
TO WHOM IT MAY CONCERN: June 7, 1962
RE: Charles Townsend
Hosp. No. 08-46-76
Mr. Charles Townsend was discharged from this hospital on June 7, 1962 and received a ten day supply of medication. Upon discharge he was ion Thorazine mg 100 q.i.d.
Very truly yours,
Bernice C. Fabian
(Miss) Bernice C. Fabian
Psychiatric Social Worker
BCF: AW
Dictated by
Michael Yatso, M.D.
Staff Physician

This was the only documentary evidence offered and there was apparently no effort by appellant to obtain any records from this hospital, or to take the deposition of any of the people mentioned in the statement. It would seem that this could have been done without great difficulty or expense.

Certainly there is nothing in the statement, nor in the testimony of the Sister that establishes that this man was insane at the time of the commission of the offenses of which he wás convicted; to the contrary, it would appear that, if he had mental difficulties at the time of entering the Milwaukee hospital, his condition in June of 1962 was such that he was eligible for release.

It has been , earlier pointed out that the transcript does not reflect that any effort was made by appellant to obtain his records from the Arkansas.State Hospital; nor is it shown that he endeavored to take the deposition of any doctor theréin; furthermore, the motion (earlier mentioned) filed on behalf of appellant sets out that he was “returned ás sane,” and there is nothing in the record to denote that the doctors found him otherwise when he voluntarily presented himself for admission. In fact he was only kept at the hospital for thirty days, which, in itself, somewhat indicates that no evidence of mental illness was found. The only other testimony that, in any way, touches upon the question of mental incompetence was that of appellant’s mother. She stated that, “Here of late he would have trouble with his head. His head was giving him lots of trouble and I had tried different tablets for his pain and they' didn’t help him and he was talking about killing himself, that was why I had him put there [State Hospital] . ’ ’ She said that she had taken her son to a doctor (about three months before the Circuit Court trial), and the doctor had given Townsend “nerve tablets, rest tablets.” The testimony was insufficient to raise the issue of insanity.

Finding no reversible error, the judgment is affirmed.

       There was no contention that he was insane at the time of trial.

       In March, 1966, appellant had filed a petition for removal to the United Spates District Court, alleging violation of his constitutional rights, but in the latter part of April of that year, the federal court ordered the cases remanded back to the Phillips County Circuit Court. An appeal was attempted to the United States Court of Appeals for The Eighth Circuit, but was subsequently dismissed. The proceedings in the federal courts probably account for the delay in bringing the cases to trial in the Circuit Court.

       Though this motion states “that the defendant has entered a plea of insanity,” it appears from the record that this was the first mention of such a plea.

       This section is part of Initiated Act No. 3, adopted by the people in 1936.

       Technically speaking, it is doubtful that the prosecution was “instituted” in the Circuit Court, since these were appeals from the Municipal Court; however, we treat the cases as though commenced in the Circuit Court.

       “Section 43-1304: Whenever a defendant has been held for trial by a magistrate, informed against or indicted on a felony charge and the defense of insanity is to be made an issue in his behalf, such defendant, or some person for him, shall file in the office of the clerk of the Circuit Court, a motion or request for an order of examination and the clerk shall immediately give notice in writing of the filing thereof to the Prosecuting Attorney or his deputy; and such motion or request shall be immediately presented to the Circuit Judge, who is hereby authorized to act upon the request during vacation of such court or during any session in another county. If the court has reason to believe that the defendant should be examined and observed by reason of the suggestion of' the Prosecuting Attorney or other court official or those interested in the defendant, he may enter such order on his own motion; however, if the defendant be held for trial, informed against or indicted at a time more than thirty [30] days prior to the opening of .the first term of court, after his having been legally charged, or prior to any adjourned day of said court at which an adjournment was made prior to such defendant’s having been held for trial, informed against or indicted, and the issue be not raised more than thirty [30] days prior to said convening, the court shall exercise his discretion in the granting of an order for observation and examination of the defendant in the Arkansas Hospital for Nervous Diseases and shall not be required to enter an order committing, the defendant for such observation and examination unless and until the defendant shall have been examined by two [2] reputable doctors of medicine appointed by the court and the court informed by them that there are reasonable grounds to believe the defendant insane. In such cases the examining fee for such doctors shall be Ten Dollars [$10.00] each, to be paid by the defendant, unless he shall be a pauper and shall have made and filed a pauper’s oath, or unless said physicians shall report that there are reasonable grounds for believing the defendant insane, in which- cases said fee shall be taxed as costs.”

       Section 43-1301 was part of an initiated act, but the General Assembly in enacting Act 256 in 1949, passed the measure by a 2/3 vote. The vote in the Senate was 25 to 1, with 9 not voting, and the House vote was 67 to 10, with 23 not voting. This was sufficient to repeal any conflict. See Amendment No. 7 to the Arkansas Constitution.

       An interesting article appears in 11 Ark. L. R. 124-125, by Dr. Robert A. Leflar, Distinguished Professor of Law, and a former member of this court. Relative to this feature of the case, Dr. Leflar states:
      “The only major change in this procedure, since 1936, was made by the 1949 legislature. There had come to be abuse of the compulsory feature of the examination requirement by sane defendants who, desiring postponement of their trials, would at the last minute plead insanity thus compelling the court, instead of going forward with trial, to send the defendant to the State Hospital for a useless examination. The 1949 enactment minimized this dilatory device by requiring that the defendant raise the issue by motion or request at least thirty days before the beginning of the next term of court, otherwise permitting the court in its discretion to commit the defendant for examination only if there be reasonable grounds for believing that the defendant might be insane, the court being allowed to appoint two reputable physicians to advise it in the matter. Since 1949 there appears to have been little abuse of the procedure.” ,


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    Charles BURNETT v. Millard NIX et al
    5-4450
    424 S. W. 2d 537
    Opinion delivered March 4, 1968

      Cochrill, Laser, McOehee, Sharp & Boswell and Fred E. Briner, for appellees.
   George Rose Smith, Justice.

This is a taxpayer’s suit brought by the appellant to enjoin six Saline county school districts from continuing to employ the seventh appellee, Millard Nix, as the districts’ tax representative. The appellant contends that there is no statutory authority for the districts to engage a person to perform the duties assigned to Nix, which are said to be partly a duplication of duties imposed by law upon the county assessor. The chancellor upheld the contract of employment.

We agree with the chancellor. School boards have broad statutory authority to employ such employees as may be necessary for the proper conduct of the schools and to do “all things necessary and lawful for the conduct of an efficient free public school or schools.” Ark Stat. Ann. § 80-509 (d) and (m) (Repl. 1960).; Where such a wide discretion is vested in the school directors we have held that one who seeks relief in the chancery court has the burden of proving by clear and convincing evidence that there has been a manifest abuse of the board’s discretion. Safferstone v. Tucker, 235 Ark. 70, 357 S. W. 2d 3 (1962). We are unable to say that the appellant has sustained his heavy burden of proof.

According to the record, within the past five or six years these districts were confronted with serious financial problems. Statutory changes mandatorily allocated a certain portion of the districts’ revenues to the payment of teachers’ salaries. Moreover, by 1965 the ratio of assessed property values within the county had fallen to 15 percent of market values, so that the county found it necessary to employ professional assistance in the reappraisal of the taxable property within the county. See Ark. Stat. Ann. §§ 84-468 et seq. (Repl. 1960).

In that critical situation the school directors concluded that additional revenues had to be found if the schools were to remain open. The six appellee districts joined together in the employment of Nix, contributing proportionately to the payment of hie salary and expenses.

Nix’s duties are twofold. First, he prepares for each district the list of taxpayers that must be filed with the county assessor. Ark. Stat. Ann. § 84-405. The appellant concedes that the statute expressly authorizes the districts to pay the expense of compiling the lists, but he insists that the greater part of Nix’s time is devoted to. the other phase of his work, which is said to be a duplication of the county assessor’s functions.

The proof does not support that contention. The second category of Nix’s contractual duties includes the discovery of new construction and other property not listed for taxation, the appraisal of such property, and the submission of that information to the appropriate district. At the trial in May of 1967 Nix testified that since the preceding January 1 he had discovered unas-sessed properties having a value of about one and a quarter million dollars.

According to the districts’ testimony, the information being supplied by Nix cannot be obtained from the county assessor’s office until a year later. Yet the early acquisition of the information is important to the districts, because it enables them to plan the operation of the schools with knowledge of the revenues that will be available. Moreover, Nix supplies information not. furnished by the assessor, such as the location of new residential subdivisions that must eventually be served by the districts. That kind of data assists the school boards in planning the construction of new school buildings, where they will be most needed.

In employing Nix the school directors also intended for his activity to play a part in preventing assessed values from falling below the minimum percentage required by law for the receipt of all available state-aid funds. It cannot be doubted that the maintenance of adequate assessed values will be of direct financial benefit to the-districts. We are not convinced by the appellant’s insistence that if there is any dissatisfaction with the county assessor’s appraisals, the sole remedy is at the ballot box when he seeks re-election. In the first place, the statutes already encourage citizens to discover and -report property that has been overlooked by the county assessor. Ark. Stat. Ann. § 84-444. And, secondly, the directors might understandably have some doubt about the incumbent assessor’s defeat at the polls by an opponent running upon a platform of higher assessments and hence higher taxes.

For the reasons stated, we conclude that the appellant failed to show by clear and convincing proof that there was a manifest abuse of discretion on the part of the school directors in their decision to employ Nix to perform the duties assigned to him.

Affirmed.

FoglemaN, J., dissents.

John A. Fogleman, Justice,

I respectfully dissent because I believe the majority is in error in ascribing such broad authority to the board of directors of a school district.

School districts derive all of their powers from the General Assembly. They can exercise only such powers as are expressly granted and such incidental powers as are necessary to the proper exercise of powers granted. Arkansas Nat’l Bank v. School District.No. 99, 152 Ark. 507, 238 S. W. 630; Casey v. Smith, 185 Ark. 149, 46 S. W. 2d 38; Scott v. Magazine Sp. School Dist. No. 15, 173 Ark. 1077, 294 S. W. 365; Lynn School Dist. No. 76 v. Smithville School Dist. No. 31, 213 Ark. 268, 211 S. W. 2d 641. Powers are implied only when they are clearly necessary to perform the duties legally imposed. A. H. Andrews Co. v. Delight Sp. School Dist., 95 Ark. 26, 128 S. W. 361; American Exchange Trust Co. v. Truman Sp. School Dist., 183 Ark. 1041, 40 S. W. 2d 770.

School district directors earn only enter into agreements which bind their districts and the inhabitants thereof by reason of express statutory authority. School Dist. No. 18 v. Grubbs Sp. School Dist., 184 Ark. 863, 43 S. W. 2d 765; Brown v. Gardner, 232 Ark. 197, 334 S. W. 2d 889.

A contract entered into by school districts which is beyond the powers conferred upon them by statute is void. First Nat’l Bank v. Whisenhunt, 94 Ark. 583, 127 S. W. 968; A. H. Andrews Co. v. Delight Sp. School Dist., 95 Ark. 26, 128 S. W. 361.

The rule that the courts will not interfere with school boards in the exercise of their discretion unless it is shown by clear and convincing evidence that there has been an abuse of discretion has been applied only where the board has express or necessarily implied powers, more particularly in matters pertaining to the operation, conduct, government or administration of schools. Among cases where statutory authority, express or clearly implied, was found is Connelly v. Earl Frasier Sp. School Dist., 167 Ark. 49, 266 S. W. 929.

Cases where operation, conduct, government or administration of schools was involved include: Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538, 30 ALR 1212; State v. School Dist. No. 16, 154 Ark. 176, 242 S. W. 545; Merritt v. Dermott Sp. School Dist., 188 Ark. 243, 65 S. W. 2d 33, Safferstone v. Tucker, 235 Ark. 70, 357 S. W. 2d 3.

The contract with appellant recites that he is employed as “school tax representative pursuant to provisions set forth in attached proposal dated March 17, 1966.” The proposal, in pertinent part, recites:

“Whereas, the Board of Directors of the various school districts of Saline County, Arkansas, desire to employ a qualified representative to assist in maintaining the standard of real and personal property appraisals as required by law, which shall constitute the following:
1. Each school district shall appoint one member of a standing committee which committee shall contract with this representative for the performance of duties hereinafter mentioned.
• * *
5. The committee shall use its discretion in hiring a qualified man who has been approved as a competent appraiser by the Assessment Co-Ordination Department of the State of Arkansas. In the event the committee is unable to hire such a qualified individual, they shall hire a person most closely meeting the requirements of said Assessment Co-Ordination Department and who is in the process of being approved.
6. The representative shall work closely with the tax assessor, employees in the tax assessor’s office, the Equalization Board and employees of the Equalization Board to see that all real and personal property of the County is placed and maintained on the tax books at its proper valuation and in performing such work shall comply with the mandate, criteria, forms and methods as required by the Assessment Co-Ordination Department.
7. The representative shall, in performing his work, attempt to devote his time among the respective school districts according to the percentage of cost which will be paid by each respective district. The representative shall send a written report to all school boards at their regular meeting each month of his work performed and the results achieved therefrom on appropriate forms as may be required by the committee. Automobile expenses shall be paid by the districts to the representative at the rate of 10c per mile, which expenses shall be considered as a cost of this undertaking, travel forms to be provided by the committee. The representative shall devote full time to the duties hereinabove set forth and shall be responsible to the above named committee and no other taxing unit. The contract shall require performance of the duties hereinabove set forth and may be terminated by two-thirds vote of the committee upon default of same or for just cause.
# # #
8. The representative shall keep a file of work performed and results achieved as a further check for achieving equalization of real and personal taxes.”

While there is testimony that part of the duties of Nix relates to preparing a list of taxpayers, required by Ark. Stat. Ann. § 84-405 (Repl. 1960) there is no mention of this function in the contract. All of the testimony indicates that his principal duties are those enumerated in the proposal.

The duties covered by the contract with Nix and for which he is being paid are certainly nowhere expressly authorized by statute. Nor do I find any powers granted to the district for the proper performance of which this kind of work could be said to be necessary. The very duties called for by this contract are required of the county tax assessor. For the performance of these duties, the county assessor and his deputies and assistants are paid from a fund to which each of these school districts contributes from its tax collections on a pro rata basis. Ark. Stat. Ann. §§ 12-806 and 12-807 (Repl. 1956). These districts are paying twice for the same work. If expert appraisers are needed, they may be employed for any or all of these school districts under Ark. Stat. Ann. § 84-468 (Repl. 1960).

Certainly it cannot be said that the work contracted for has anything to do with the operation, conduct, government and administration of the schools.

There simply is no power given the school boards which calls for the exercise of any discretion in this case. If the school boards want to employ Nix to compile a list of taxpayers required by § 84-405, they have a legal right to do so. If the General Assembly had intended that there be a duplication of the tax assessor’s functions, they would have said so.

I would reverse and remand for the entry of a decree declaring the contract null and void and enjoining the school districts from paying out any school funds on the contract.


author: Paul Ward, Justice.

text:
    JONES FURNITURE MFG. CO. et al v. William Earl EVANS
    5-4467
    424 S. W. 2d 880
    Opinion delivered March 4, 1968
    [Rehearing denied April 1, 1968.]

      Terral, Rawlings, Matthews & Purtle, for appellants.

      Cockrill, Laser, McGehee, Sharp & Boswell, for cross-appellant.

      Milham & Wied, for appellee.
   Paul Ward, Justice.

This is a consolidation of two Workmen Compensation cases, wherein appellee (William Earl Evans) filed a claim against appellant (Jones Furniture Manufacturing Co.) and a claim against appellant (Adams Farm Supply Co.). In each case the insurance carrier is an appellant, but, for brevity, we hereafter refer to the first named appellant as “Jones” and to the other as “Adams”.

The issues presented on appeal arise out of the facts summarized below.

(a) On May 13, 1964, appellee, while in the employment of Jones, was injured. When appellee filed a claim before the Commission Jones agreed to an assessment of 7%% disability to the body as a whole and agreed to pay appellee $33.80 a week for twenty weeks and five days (based on temporary total disability) and for an additional thirty-four weeks (based on permanent partial disability).
(b) On June 16, 1966, appellee filed another claim for additional compensation against Jones, and was awarded a 30% permanent partial disability as a result of his original injury on May 13, 1964.
(c) Also, on June 16, 1966, appellee perfected a claim with the Commission against Adams based on an injury on September 25, 1965 while in the employment of Adams. The Commission awarded ap-pellee compensation based on a 10% partial disability. The awards under (b) and (c) were appealed to, and affirmed by, the circuit court.

On appeal here, appellants urge a reversal on the grounds discussed hereafter.

One. Jones seeks a reversal for two separate reasons: (1) There is no substantial evidence to support the Commission’s finding that appellee suffered a total 30% permanent partial disability as a result of the May 13, 1964 injury, and; (2) The claim filed on June 16,. 1966 is barred by the statute.

(1) Here Jones pointed out that the Commission found appellee suffered a 30% permanent partial disability in 1964 while in his employment and a 10 % disability in 1965 while in the employment of Adams — a total of 40%. Then it is pointed out that the highest degree of disability supported by any medical testimony is only '35%. It is then concluded that these facts (undisputed by appellee) logically and necessarily mean there is no substantial evidence to support the findings of the Commission.

The above conclusion is not supported by decisions of this Court. In Glass v. Edens, 233 Ark. 786; 346 S. W. 2d 683 we said:

‘/The maximum medical rating of disability in this ease was 40%, which was allowed by the referee and affirmed by the Full Commission. Apparently, they also considered only medical evidence and this we consider error. Under the rule as set out in Larson, consideration should have been given, along with the medical, evidence, to the appellant’s age, education, experience, and other matters affecting wage loss.”

To the same effect, see Wilson & Co., Inc. v. John Christman (decided by this Court February 19, 1968) and Arkansas Best Freight System, Inc. v. Walter Brooks decided February 26, 1968).

There is other evidence in the record here which, under the above rule, the Commission had a right and duty to consider in arriving at the extent of appellee’s disability. It is not disputed: that be was injured in 1964, and unable to work for nearly a year; that in 1965 be tried to work for Owosso but was not physically able to do so; that then be went to work for Adams but bad to lay off for a while before he was injured again, that; while he was able to perform strenuous labor in 1964, he was never thereafter able to do so; that he is approaching sixty years of age, is uneducated, and is fitted only to do manual labor. Considering, as we must, that the Commission’s findings have the force and effect of a jury’s finding we are unable to say there is no substantial evidence to support its finding in this instance.

(2) It is next contended by Jones that appellee’s claim was not filed with the Commission within the time proyided by Ark. Stat. Ann. § 81-1318 (b) (Repl. 1960), which reads:

“In cases. where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one year from the date of' the last payment of compensation, or two years from the date of accident, whichever is greater.”

As previously stated, appellee’s claim was filed June 16, 1966. According to Jones’ calculations [which, for the purpose of this opinion, we concede to be true] the last payment due appellee (for the 1964 injury) was June 4, 1965. It is therefore contended by Jones that, under the statute, appellee had to file his claim on or before June 4, 1966. For reasons stated below we do not agree.

It is not disputed that, as a matter of fact, appellee received his last payment on June 17, 1965, which was less than one year before he filed his claim on June 16, 1966, being one day before it was barred under the statute quoted above. Even though, according to appellant’s calculation, the last payment was dme on June 4, 1965, still the due date is not controlling under the statute. The record discloses that the payment made on June 17, 1965, was in fact the first paylment due ap-pellee in 1964 but had been overlooked by appellomt (not by appellee or the Commission) because of an office error. Basically, it would not be right to penalize appellee for something over which he had no control.

The facts in this case distinguish it from the case of Phillips v. Bray, 234 Ark. 190, 351 S. W. 2d 147, where we held the one year limitation could not be extended because of a delayed payment of a doctor’s bill. The reason for so holding was that the doctor’s bill was not presented to or approved by the Commission before the one year had expired — which is not the situation here. In so holding we there said:

“It seems perfectly obvious that the primary purpose of the one year statute of limitations is to give the claimant that much extra time in which to decide whether he has been fully compensated for his injury, and not for the purpose of paying belated medical bills. ’ ’

Two. We find no merit in the contention here made by Adams that there is no substantial evidence to support the Commission’s finding appellee suffered a 10% permanent partial disability as the result of his injury on September 25, 1965, while in the employment of Adams.

Beplying to the above contention we adopt, without repeating, all we have heretofore said about “substantial evidence” in connection with the claim against Jones. In addition, we point out other pertinent facts disclosed by the record.

While in the employment of Adams appellee injured his back when he attempted to lift a 100 pound sack. This happened on Saturday and he tried, but was unable, to resume work on tbe following Monday. He has been unable to work up to tbe time of the bearing before tbe Commission. There is nothing in the record to indicate appellee bad been malingering, but, to tbe contrary, it indicates be has made every reasonable effort to work to support bis family. Also there is substantial medical evidence that appellee’s disability was partially attributable to the injury suffered while working for Adams. Dr. Carruthers testified that, in his opinion, appellee’s injury on September 25, 1965 (while working for Adams) could result in a functional disability of 20%. The doctor further stated that he examined appellee on March 1, 1966 and was of the opinion that it was questionable whether additional treatment would be of further benefit to him.

The Commission, in its findings, referred to and relied upon the facts mentioned above in reaching its decision, and we think it was justified in doing so.

Affirmed.

Foglemak, J., disqualified.


text:
    OSCEOLA HOUSING AUTHORITY v. Nella Dunn GILLESPIE
    5-4469
    424 S. W. 2d 521
    Opinion delivered March 4, 1968

      James E. Hyatt, Jr., for appellant.

      Oscar Fendler and Leon Burrow, for appellee.
   Lyle Brown, Justice.

This is a condemnation case brought by the Housing Authority of Osceola, Arkansas, to acquire seven town lots to be used in a low-rent housing project. The appellee-owner, Nella D. Gillespie, was awarded $35,000 as just compensation. The basis for appeal by the Authority is set out in three points which will be enumerated and discussed in sequence.

Point I. The landowner and her witness used “cost of replacement” and “capitalisation” as the measure of damages. Appellant challenges the use of those approaches to prove property values. Appellant relies on City of Little Bock v. Sawyer, 228 Ark. 516, 309 S.W. 2d 30 (1958). There it was held that replacement costs are not determinative of damages, “but we do conclude that it is admissible as an element or circumstance to be considered along with all other circumstances in arriving at a proper award.”

Most of appellant’s argument under Point I is aimed at Mrs. Gillespie’s testimony. She showed a detailed acquaintance with the property, having for many years personally handled the rentals, repairs, taxes, insurance, and all the other duties incumbent on a landlady. The meaning of “fair market value” was explained to her and she said she understood it. She went into detail as to replacement costs and net rentals. She had recently bought property just across the street and testified, without objection, that she took that purchase into consideration. Under those circumstances her opinion of fair market value was admissible.

Witness D. S. Laney had known the property for at least twenty years. He buys, sells, and develops real estate in Osceola. His approach to the fair market value did not follow the customary detailed procedure of an expert appraiser in preparation for trial. However, he did base his opinion on his knowledge of the property, his awareness of some comparable sales, and his personal knowledge of values gained from his extensive dealings with Osceola properties.

Witness L. C. B. Young, being in Florida, testified by deposition. He did not have his appraisal file with him and testified from personal recollection. He had viewed the property with Mr. Laney before going to Florida. He frankly stated that he relied mostly on Mr. Laney’s judgment because he is “something of an expert on residential property in that area of Osceola.” He did not recall the exact figure, but did recollect that the two men agreed that the minimum value would he at least $30,000. Mr. Young is a licensed attorney hut has devoted the past several years to. hanking. He is presently the chief executive officer of Planters Bank in Osceola and has been evaluating real estate in Osceola for sixteen years. He testified that he did in fact consider Mrs. Gillespie’s capitalization data; however, comparable sales were discussed, the properties were inspected, and effort was made “to consider all factors.”

Witness E. M. Terry also qualified as an expert. He considered the assessment records, checked comparable sales, talked to several people, and used Mrs. Gillespie’s capitalization figures after deducting 15 per cent for vacancy.

Point II. The verdict was a result of prejudice against the Housing Authority and 'sympathy for the landowner-appellee. In support of the contention appellant first cites extensive testimony of Mrs. Gillespie concerning her many worthy civic activities and her sentimental attachment to the property. There was never any objection to that testimony, nor was the court requested to restrict it.

Our attention is next called to a number of questions propounded by Mrs. Gillespie’s counsel. The purpose of those questions, says appellant was to show that the housing costs were coming from unlimited federal funds rather than the town of Osceola. Mr. Fendler asked a series of not more than three questions concerning the source of funds. On each occasion objection was made and properly sustained. A conference on the subject followed and that action apparently caused a cessation in the objectionable line of questioning.

III. The verdict is excessive. On this point appellant emphasizes the extensive period of study of the property made by its qualified appraisers. Those' three witnesses estimated the landowner’s just compensation to be $12,500, $19,900, and $19,900 respectively. T'he jury verdict was $35,000. Returning- to the landowner’s appraisal for comparison, they were: Dave Laney, between $35,000 and $40,000; L. C. B. Young, minimum of $30,-000; E. M. Terry, $26,000; and Mrs. Gillespie, $50,000. One of the purposes in here summarizing the testimony of the landowner’s witnesses was to reveal substantial evidence to support the jury verdict. The disparity between the appraisals is very common in eminent domain cases and is unfortunate. Yet the only rule we can follow is the substantial evidence rule.

We conclude that the three points are without merit.

Affirmed.