text:
    Dr. L. E. HULVEY v. KELLWOOD COMPANY et al
    77-266
    559 S.W. 2d 153
    Opinion delivered December 19, 1977
    (Division I)

      Henry A. Allen, II, for appellant.

      Friday, Edlredge & Clark, by: Frederick S. Ursery, for appellees.
   George Rose Smith, Justice.

Mary Tankersley filed a workmen’s compensation claim for an admittedly compensable injury. Her treating physician, Dr. Hulvey, a chiropractor who was represented by counsel, submitted a bill for $4,-446 for services rendered over a period of 14 months. The insurance carrier questioned the reasonableness of Dr. Hulvey’s bill, which was accordingly submitted to the Commission for its approval. Ark. Stat. Ann. § 81-1311 (Repl. 1976). The Commission found the charges to be unreasonable, allowed 60% of the amount sought, but refused to award Dr. Hulvey an attorney’s fee because the matter had been pursued by the doctor and his attorney rather than by the claimant and her attorney. On appeal the circuit court affirmed the 60% award, but found that an attorney’s fee was recoverable and remanded the cause to the Commission for its determination of a proper fee. An appeal and cross appeal bring both points up for review.

The Commission’s action in reducing Dr. Hulvey’s claim by 40% is supported by substantial evidence. When the insurance carrier first protested the bill, its reasonableness was considered by the Peer Review Committee of the Arkansas Chiropractic Association, of which Dr. Hulvey is a member. The committee unanimously found, after what appears to have been a fair hearing at which Dr. Hulvey appeared in person and by counsel, that there had been an over-utilization of services and excessive charges. The Commission’s opinion recites that the Commission, after considering all the evidence in the case, including the Peer Review Committee’s recommendation, found that the bill was unreasonable and should be reduced by 40%.

We do not agree with Dr. Hulvey’s argument that, even though the proof justified the Commission’s finding that the amount of the claim is unreasonable, the Commission nevertheless could not reduce the amount by 40% (or any other percentage) without expert testimony that the bill was excessive in precisely that ratio. Such a holding would shift the responsibility for determining the issue of reasonableness from the Commission, where the statute puts it, to the expert witnesses. There was much testimony about the charges made by various chiropractors. Given the Commission’s undeniable authority to find that the charges were excessive, we cannot say that the actual 60% allowance is not supported by substantial evidence.

The circuit court was also right in finding that an attorney’s fee should be allowed in a sum to be determined by the Commission. The statute refers to the allowance of “[f]ees for legal services rendered in respect of a claim,” §81-1332. The same section goes on to set maximum limits in terms of graduated percentages of “compensation.” We have held that medical services are a part of “compensation” and that attorney’s fees are recoverable with respect to such services. Ragon v. Great American Indemnity Co., 224 Ark. 387, 273 S.W. 2d 524 (1954). In that case, it is true, the claim for medical services had been presented by the claimant’s attorney rather than by an attorney for the doctor or the hospital rendering the services. In the case at bar, inasmuch as a fee would have been recoverable if Dr. Hulvey’s claim had been presented by the claimant’s attorney, we see no difference in principle merely because the doctor was himself represented by counsel. Indeed, that seems to be the intent of the statute, which provides that reasonable charges for medical services, when approved by the Commission, “shall be enforceable by the Commission in the same manner as is provided for the enforcement of compensation payments.” § 81-1311.

Affirmed.

We agree. Harris, C.J., and Fogleman and Hoi/r, JJ.


source: Caselaw Access Project

author:
John A. Fogleman, Justice.
      Darrell Hickman, Justice,

license: Public Domain

text:
    Fred McNEW v. Ruth B. McNEW
    77-108
    559 S.W. 2d 155
    Opinion delivered December 19, 1977
    (In Banc)

      George F. Hartje, of Hartje & Burton, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   John A. Fogleman, Justice.

Ruth and Fred McNew were married in November, 1967, when both were 47 years of age. He was a widower without children. She was a widow with three children. Both were employed full time and had some assets. They were separated sometime in November, 1975, according to appellee’s testimony. She had instituted an action for divorce on October 29, 1975, alleging indignities to her person, specifically stating that Fred had treated her with contempt, neglect, ridicule and abuse, systematically and continually. He also sought a divorce on the same grounds. Her prayer was granted and she was awarded one-third of his personal property and one-third of his realty for life. The court’s decree contained findings that Ruth McNew’s allegations had been established by a preponderance of the evidence and corroborated by Jean Warren and that the allegations of appellant’s counterclaim for divorce had not been established. Appellant contends that appellee failed to prove her grounds for divorce because of lack of corroboration by her sole witness, Jean Warren. We agree.

Mrs. McNew complained of her husband’s lengthy absences from home during the week, in following his employment, and attention to business affairs when at home on weekends. She testified that there had been a serious break in the marriage in 1972 when she lost her temper as the result of an argument and slapped him. She said that Fred retaliated by striking her and that she had left and driven to Mountain Home, but had returned and moved out of his bedroom. She then demanded that he support her fully out of his salary and he agreed. At that time, she withdrew one-half of a joint checking account and never again contributed anything to that account. She said that she had counseling and tried to move back into the master bedroom she had left to him and that they had sexual intercourse on two occasions, but she quit trying after two years.

She related that they did not entertain often because he was only at home on weekends and, since there was so much to be done on Saturday, both were usually tired. According to her, when they did have guests for dinner, Fred would leave the table and, rather than just help clear the dishes, would wipe off the stove, pick up the dishes, sweep out the crumbs, and start the dishwasher, even before the meal was completed, to her embarrassment. She also said that he made derogatory remarks to her, but never in the presence of anyone else. She added that he paid the bills, but would not share marital relations and that they did no formal entertaining and had no social life. She testified that the situation became intolerable.

Jean Warren had known both parties for 23 years. She testified that the McNews did not entertain much, but that she and her husband had been in the McNew house on occasion. She said that Fred would sometimes get up and start cleaning the stove, cleaning up the kitchen, etc., instead of visiting with the Warrens. According to her, Ruth resented this and she thought Ruth was embarrassed by it. She said nothing else that could be considered in determining whether her testimony was corroborative, except that McNew was often away from home and that he was not at home once or twice when Ruth was ill with “flu.”

We have said that corroboration may be comparatively or relatively slight when it is clear that there is no collusion between the parties. Sowards v. Sowards, 243 Ark. 821, 422 S.W. 2d 693; Anderson v. Anderson, 234 Ark. 379, 352 S.W. 2d 369; Adams v. Adams, 252 Ark. 20, 477 S.W. 2d 183. There is no evidence of collusion here.

In considering the sufficiency of the corroboration, it is necessary that we consider the evidence necessary to establish appellee’s ground for this divorce. In Gibson v. Gibson, 234 Ark. 954, 356 S.W. 2d 728, we said:

*** Indignities may mean a number of things in various circumstances but in order to constitute the grounds for divorce they must be constantly and persistently pursued with the object and effect of rendering the situation of the opposing party intolerable.

We have said that the indignities must be continuously and persistently pursued with the purpose and effect of causing an enduring alienation and estrangement. Wiles v. Wiles, 246 Ark. 289, 437 S.W. 2d 792. The granting of a divorce on this ground requires a showing of habitual, continuous, permanent and plain manifestation of settled hate, alienation and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598. In Welch, we pointed out that because the construction we have given this part of the divorce statute goes to the very verge of safety and is to be cautiously applied, careful attention must be given to the corroborating evidence. We stated that corroboration must be testimony of a substantial fact or circumstance which leads an impartial and reasonable mind to believe that material testimony as to a vital fact or circumstance is true; and that it was vital to a complaining spouse’s suit for divorce on this ground to show that a course of conduct pursued by the other spouse was the cause of an intolerable condition of the complaining spouse.

It is true that corroboration of every element or essential in a divorce suit is not required. Sowards v. Sowards, supra. Here the testimony of Jean Warren about a few isolated instances when she was present and obviously felt that Fred had conducted himself rudely toward her and her husband to such an extent that she thought Ruth was embarrassed is not corroborative of any course of conduct, habitually, continuously, constantly or persistently pursued or that the object, purpose or effect of the conduct was to render Mrs. McNew’s condition intolerable. See Dunn v. Dunn, 255 Ark. 764, 503 S.W. 2d 168. The same may be said of the testimony about the husband’s absence on one or two occasions when the wife had flu. It is undisputed that his job required him to be away from home during the week and there was nothing in her testimony to indicate that the wife’s illness was known to him or that his presence and attention was really needed. In spite of the fact that there is a definite trend toward judicial leniency in the requirement of corroborating testimony, the limits of safety would be passed if we approved this testimony as sufficient corroboration.

Appellant, somewhat inconsistently with his argument about the sufficiency of the corroboration of appellee’s testimony, argues that the court erred in denying him a divorce on the basis that his own testimony was not corroborated. We have already indicated that we feel that the requirement of corroboration is still applicable and appropriate. We have so considered it in Adams in 1972, in Welch in 1973, and in Dunn in 1973. There is nothing that calls upon this court to engage in the judicial activism that would be required for our nullifying that requirement. The fact the legislature has not seen fit to abolish the rule is not sufficient, particularly in view of the fact that there has been legislative amendment of the divorce statutes at least 24 times, one of which was the amendment of the pertinent section, Ark. Stat. Ann. § 34-1207 (Supp. 1975), in 1969, to eliminate the requirement of corroboration on all except one ground for divorce, in uncontested cases. We must presume that the General Assembly considered, and still considers, corroboration important in contested cases. Historically and appropriately, divorce has been governed and regulated by statute in Arkanaas. Young v. Young, 207 Ark. 36, 178 S.W. 2d 994, 152 ALR 327. It is best that changes in the divorce law be left to that branch of government which is the repository of all powers of government not vested in the other two branches, and which is most representative of the people, the ultimate sovereign.

Appellant has urged other points for reversal, one of which is the constitutionality of our statutes governing allowance of alimony, attorney’s fees and dower pursuant to Ark. Stat. Ann: §§ 34-1210, 1211 and 1214 (Repl. 1962). The view we take of this case renders it unnecessary to consider any of these points. It would be improper for us to consider the arguments that the statutes mentioned violate the equal protection clauses of both the Arkansas and United States Constitutions. Appellant has no standing to raise any question about alimony and attorney’s fees, because no allowance was made. We will not decide constitutional issues unless their determination is essential to disposition of the case.

The decree is reversed and the complaint and counterclaim dismissed.

Hickman, J., dissents.

Byrd, J., not participating.

Darrell Hickman, Justice,

dissenting. I would affirm the decision of the chancellor in awarding the divorce. The majority, in my opinion, is essentially retrying the case. Normally in a close case, and this is indeed one, we affirm the findings of the chancellor unless they are clearly against the preponderance of the evidence. Sowards v. Sowards, 243 Ark. 821, 422 S.W. 2d 693 (1968). We have, in my opinion, upheld similar decrees where the evidence of fault was slight and barely corroborated. Kirk v. Kirk, 218 Ark. 880, 239 S.W. 2d 6 (1951).

Since I would affirm the chancellor’s findings on the grounds for divorce, I would then face the issues raised by the appellant-husband regarding the constitutionality of certain Arkansas statutes regarding property disposition in divorce cases.

The Arkansas law provides that if the wife is awarded the divorce she must be given one-third of the husband’s real estate for life and one-third of the husband’s personal property absolutely. There is no similar provision in the event the husband is granted the divorce. Ark. Stat. Ann. § 34-1214 (Repl. 1962), The parties were both married before. During this marriage, according to evidence that is not really disputed, the appellee-wife had accumulated property of a value of about $100,000.00. Some was held in her name, and some jointly with her husband. The appellant had through diligence increased his property holdings. Undoubtedly the husband had contributed substantially to the wife’s increase of property. The chancellor correctly applied the Arkansas law and arbitrarily awarded the wife one-third of the husband’s real estate for her life and one-third of his personal property absolutely. The chancellor could not have awarded the husband any of the wife’s property, according to Arkansas law, and had to award the wife property simply because she was granted the divorce. Therein lies the obvious inequity and discrimination.

The Arkansas law regarding property was enacted before the turn of the century and can no longer be defended historically or legally with any confidence. It clearly violates the Equal Protection Clauses of the Arkansas and the United States Constitutions. Ark. Const., Art. 2, § 3; U.S. Const., Amend. XIV, § 1.

Parties marry, share their love, lives, fortunes and misfortunes. In divorce they should share equally the property they have accumulated during their marriage. Anything less is obviously unfair.

I cannot say that the Arkansas law permitting alimony, child support and attorney’s fees for the wife is unconstitutional. The Arkansas statutes do not require the award of alimony, child support or attorney’s fees but authorize such awards depending upon the circumstances of the parties and the nature of the case. Ark. Stat. Ann. §§ 34-1210; 34-1211 (Repl. 1962). Not only are these statutes not unconstitutional on their face in my opinion, but historically there remains a need for such laws. Some women forsake education to become full-time homemakers. Alimony permits a court to correct any financial inequities because of the parties’ circumstances.

In passing, it should be noted that the divorce laws in Arkansas in general are archaic and need revision. It would certainly be best if the legislature reviewed and revamped these laws so that they would not only meet constitutional tests but also be more suitable in assisting people to resolve their domestic disputes.

I would remand this case for the court to enter an order which would fairly and equitably divide the parties’ property.


author: John A. Fogleman, Justice.

text:
    J. R. PURDY d/b/a PURDY’s FLOWER SHOP v. Y. M. LIVINGSTON
    77-291
    559 S.W. 2d 24
    Opinion delivered December 19, 1977
    (Division II)

      Thaxton, Hout & Hartsfield, for appellant.

      Laser, Sharp, Haley, Young & Boswell, for appellee.
   John A. Fogleman, Justice.

This appeal in a workmen’s compensation case turns upon the question whether there was substantial evidence to support the commission’s finding that appellee Livingston was an employee (but not a casual one) of appellant Purdy when he was injured in a fall from a ladder. We find that there was and affirm.

Livingston was employed by Village Mall, Inc. to keep a public or mall area clean. He was free to enter into arrangements with tenants of the corporation, such as appellant, to do work for them which did not interfere with his employment. He entered into an agreement with appellant to wash the windows of appellant’s flower shop once a week and carry out the trash for $12 per week and performed these services over a 13-month period. We agree with appellant that the undisputed evidence shows that, as to this work, Livingston was an independent contractor but that is not determinative of the question before us. We have held that an employee may be an independent contractor as to certain work and a mere servant as to other work for the same employer. Brook’s, Inc. v. Claywell, 215 Ark. 913, 224 S.W. 2d 37; Parker Stave Co. v. Hines, 209 Ark. 438, 190 S.W. 2d 620.

Purdy did employ Livingston to do other work. Until the day Livingston was injured, this had been confined to cleaning the carpets in the flower shop. It was admitted that Livingston had done this on two or three occasions and that he had been paid for doing so. Livingston testified that Purdy furnished the equipment and supplies for shampooing the rugs and instructed him on the mixing of the cleaning ingredients. He said he was paid “by the hour” for this work. His recollection was that the rate was $2 per hour and that it took three to four hours to complete the job.

On the Saturday when Livingston was injured, he was on a ladder hanging wire for appellant. His services in doing this had been engaged by appellant’s son, who was the manager of the flower shop in the mall. The wire was being hung in the mall to support floral arrangements for a Sunday show being held jointly by the flower shop and the Newport Service League in the common area of the mall.

The wire was purchased by Livingston according to instructions given by appellant’s shop manager at the place the latter directed and a charge ticket was made to appellant for the cost. Livingston testified that the ladder he was using had been borrowed from the Wal-Mart store, in compliance with directions of appellant’s manager. He said he had never before borrowed any ladder. The manager specifically told Livingston how he wanted the wire hung and later came back to the place Livingston was working to show him how to space the wires. Livingston said that the manager told him exactly where to hang the wire and that he came out during the course of the work to see if Livingston was doing as he was told. There was no specific agreement as to the amount of compensation to be paid for this work, and probably none as to the manner of determining the payment to be made, although it is agreed that Livingston was to be paid for this specific job, which, according to Livingston, would require only one day and one night. Livingston said that he expected to be paid “by the hour” when the job was finished. The store manager did not recall whether he was to pay Livingston for the completed job or on a per hour basis. Although Livingston commenced the work at a time different from that specified by the shop manager, he went to this manager and obtained his approval before starting. The manager said that he had the right to tell Livingston to quit hanging the wire. Livingston was injured after he had worked only 1 Vz hours. Livingston testified that, regardless of the time of day he did the work, he was instructed by Purdy to stay at the mall to turn the lights back on when they were turned off at 10:00 p.m. by an automatic timer.

The evidence was not undisputed and there is some inconsistency in the testimony of the interested witnesses at the two hearings held in this case. In stating it, we have viewed it in the light most favorable to the commission’s findings, as we must. We must also draw all reasonable inferences in that light. Sneed v. Colson Corporation, 254 Ark. 1048, 497 S.W. 2d 673.

Before we can reverse the commission, we must be convinced that fair-minded men could not have reached the conclusion they did. Plastics Research & Development Co. v. Goodpaster, 251 Ark. 1029, 476 S.W. 2d 242. It was the duty of the commission to resolve all reasonable doubts favorably to appellee. Sneed v. Colson Corp., supra. Even where the evidence would support a conclusion different from the commission’s, or where the preponderance of the evidence would support a different result, we affirm the commission unless a reasonable mind could not reach its conclusion. Superior Improvement Co. v. Hignight, 254 Ark. 328, 493 S.W. 2d 424.

We cannot say that there was no reasonable basis for the commission to conclude that appellee was an employee, not an independent contractor, at the time he was injured. The rule of liberal construction applies to ¡the factual determination of the independent contractor-employee issue, and requires that doubts be resolved in favor of the employee status. Farrell-Cooper Lumber Co. v. Mason, 216 Ark. 797, 227 S.W. 2d 444. The primary test is whether the will of the worker or that of the employer dominates the means and method of the work, except as to result. Parker Stave Co. v. Hines, 209 Ark. 438, 190 S.W. 2d 620. We there pointed out that there are numerous indicia of the relationship utilized as guides to the primary question of control, none of which is conclusive or controlling. Among those we have recognized are: the time for which the workman is employed; the right to terminate the employment without liability; the method of payment, whether by time, job, piece or other unit of measurement; furnishing, or the obligation to furnish, necessary tools and equipment and materials; and the exercise of some slight control of the manner of doing the work, where the nature of the work is such that little supervision is necessary. Parker Stave Co. v. Hines, supra; Irvan v. Bounds, 205 Ark. 752, 170 S.W. 2d 674.

We find substantial evidence that appellant had the right to terminate Livingston’s employment before the job was finished, that, particularly in the light of the employment for carpet cleaning, the amount of compensation would have been calculated on a time basis, that the employer did furnish the materials and a ladder, both of which were essential to the undertaking, and that appellant did exercise some degree of control of the manner of doing the work. These indicia were sufficient to afford the commission a basis for a conclusion that an employer-employee relationship existed and we are unable to say that a fair-minded person could not reach that conclusion.

This brings us to appellant’s argument that appellee was a casual employee under Ark. Stat. Ann. § 81-1302 (b) (Repl. 1976). The section excludes from the status of “employee, ” as defined in the act, one whose employment is casual and not in the course of the trade, business, profession or occupation of his employer. We have held that an employee is not excluded from the coverage of the act unless both exceptions exist. Meek v. Brooks, 237 Ark. 717, 375 S.W. 2d 671. Assuming, without deciding, that the employment of Livingston was casual, we find substantial evidence to sustain the commission’s finding that the work being performed at the time of the injury was in the course of appellant’s business and was a form of advertisement which either did, or reasonably could be expected to, benefit appellant.

The line of demarcation between what is and what is not employment in the course of trade or business of the employer is vague and shadowy and each case must, of necessity, turn largely upon its own facts or circumstances. Buxton v. Dean, 218 Ark. 645, 238 S.W. 2d 487. Appellant argues that the performance of this job in connection with a special show with no contemplation of continued future employment of a similar nature could not, by the fartherest stretch of the imagination, be considered to be in the course of the trade, business or occupation of the employer. He does not, however, cite us to any authority other than the statute itself. We have not heretofore considered the statute in the light of facts and circumstances of the nature presented here. In viewing the statute, we must construe, interpret and apply it broadly and liberally in favor of the claimant to provide compensation to him in the light of the statute’s beneficient and humane purposes, resolving all doubts in favor of the claimant. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480; Mohawk Rubber Co. v. Buford, 259 Ark. 622, 535 S.W. 2d 819; Boyd Excelsior Fuel Co. v. McKown, 226 Ark. 174, 288 S.W. 2d 614; Arkansas National Bank of Hot Springs v. Colbert, 209 Ark. 1070, 193 S.W. 2d 806. The public has an interest in minimizing the risk of an injured employee becoming the object of public charity or public relief. Jacob Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W. 2d 200; Spratlin v. Evans, 260 Ark. 49, 538 S.W. 2d 527. These purposes leave no room for narrow or technical constructions and we construe statutes in light of them. Hunter v. Summerville, 205 Ark. 463, 169 S.W. 2d 579; Spratlin v. Evans, supra. See also, Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S.W. 2d 380. These rules of construction are applied where an exception or exemption from the terms of the act is claimed. International Paper Co. v. McGoogan, 255 Ark. 1025, 504 S.W. 2d 739; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W. 2d 113. They are also applicable where the question is whether one is an employee under the act. Hollingsworth & Frazier v. Barnett, 226 Ark. 54, 287 S.W. 2d 888. They have been applied in construing statutory definitions. E. H. Noel Coal Co. v. Grilc, 215 Ark. 430, 221 S.W. 2d 49; Wood Mercantile v. Cole, 213 Ark. 68, 209 S.W. 2d 290. Furthermore, the exclusion of the casual employee is an exception, which is specific, not general, and in keeping with the usual rules of construction in favor of coverage, all doubts and implications should be resolved in favor of the general rule and against the exception. Eddington v. Northwestern Bell Telephone Co., 201 Iowa 67, 202 N.W. 374 (1925); Heilinger v. City of Sheldon, 236 Ia. 146, 18 N.W. 2d 182 (1945); National Cast Iron Pipe Co. v. Higginbotham, 216 Ala. 129, 112 S. 734 (1927); Garrison v. Gortler, 234 Ia. 541, 13 N.W. 2d 358 (1944).

There are many different types of statutes excluding or excepting the casual employee from coverage. Some do not incorporate the “course of business” qualification at all. Others make the casual employment test and the “course of business” test alternates. None of the cases interpreting such statutes are helpful here. Another difference between our statute and most others is the absence from ours of either adjective “usual” or “regular” as a limitation on “the course of the trade, business, profession or occupation of the employer.” The significance of the omission of these words is great. Where the course of business is limited by one of these modifiers, the clause is much more restrictive than when they are absent. The language in our statute is much more inclusive than it would be if the exception had applied in the “usual” or “regular” course. Garrison v. Gortler, supra. This significance was pointed out in Speed v. Page, 59 S. 2d 138 (La. App., 1952), where it was held that there was a statutory coverage of an employee when he was engaged in an employment with reference to, in connection with, or in promotion of, the employer’s trade, business or occupation. See also, Crow v. Hosier, 66 S. 2d 380 (La. App., 1953).

We must construe the statutory language “not in the course of the trade, business, profession or occupation of his employer” favorably to appellee, as the commission did, if that can be done without doing violence to the plain meaning of the words. A reasonable construction of these words permits coverage under the act when, even though the employment is casual, it is in connection with, or promotion or furtherance of the employer’s trade, business or occupation. We would certainly say that an employee who was injured in performing duties assigned to him in the promotion or furtherance of the employer’s trade, business or occupation was acting in the course of his employment. See Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S.W. 2d 1010. In considering the application of a “usual course of business” exclusion, it has been said that the words should be accorded the same liberal view taken in construing the words “within the scope of the employment.” State v. District Court, 141 Minn. 83, 169 N.W. 488 (1918). See also, National Cast Iron Pipe Co. v. Higginbotham, supra. The work Livingston was doing was obviously in promotion of the business of the flower shop. Thus, there was substantial evidence that he was not excluded from coverage when injured.

The judgment is affirmed.

We agree. Harris, C.J., and Holt and Howard, JJ.


text:
    Charles LEGG v. STATE of Arkansas
    CR 77-184
    559 S.W. 2d 22
    Opinion delivered December 19, 1977
    (Division II)

      John F. Gibson, Jr., for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Charles Legg and Jake Nave were jointly charged with murder in the second degree, in that they, in conjunction with one another caused the death of James Robert Stevens, under circumstances manifesting extreme indifference to the value of human life, causing his death by a shot from a .22 caliber rifle. Appellant Legg was found guilty of manslaughter and sentenced to three years imprisonment. He asserts that there was abuse of discretion in the court’s denial of a motion for severance during the course of the trial. We find no abuse and affirm.

Under Rule 22.3 (b), Arkansas Rules of Criminal Procedure the court, on the motion of a defendant, on grounds other than an implicating out-of-court statement by a codefendant, shall grant a severance of defendants, if during trial “it is deemed necessary to achieve a fair determination of the guilt or innocence of one or more defendants. ” At the outset, we should say that we agree with appellant’s position that the very language of the statute is indicative that the trial court has some latitude of discretion in granting or denying a motion for severance. He is further correct in assuming that we will not reverse the action of the trial court in the absence of an abuse of discretion.

The motion in question was made at the close of the examination of Peggy Lynn Hall, who was a central figure in the events leading up to the shooting of Stevens. Her testimony tended to show that Nave was the moving force in these events and that Legg reluctantly went to the scene where an argument with Stevens arose and Stevens suffered a fatal wound; that Legg had not joined at first in the quarrel with Stevens that Nave provoked, but later said he was going to bring Nave back to Hall’s car in which he and Nave had been riding so they could leave; and that, after the shooting, Legg had said that the gun “just went off.” The evidence that Legg held the weapon from which the fatal shot was fired at the time of the shooting and that he had brought it to the scene and had taken it with him “to bring Nave back” leaves no room for doubt.

Appellant had made a motion for severance at the beginning of the trial on the ground that Nave had made a statement implicating appellant. That motion was denied when the prosecuting attorney agreed not to use this statement. Appellant again moved for a severance after his attorney had cross-examined the witness Hall and had been advised by the attorney for Nave that he intended to try to impeach the credibility of the witness. The state rested its case as soon as this witness left the stand and motions for directed verdicts by each of the defendants were then denied. The appellant then renewed the earlier motion for severance. The grounds stated for this renewal were that the trial had developed into a “conflict of interest” between the defendants. The motion was again renewed after all parties had rested. The grounds then stated were that the defenses of Nave were contrary to those of Legg and that, in a separate trial, Legg would have been entitled to call additional witnesses and to use Nave to impeach the testimony of Joe West, a witness for the state and the companion of Stevens at the time of the fatal encounter.

On the record before us, we can find no abuse of discretion. There is not even a suggestion of the identity of the additional witnesses, what they could have testified, or the reason that they were not used in the joint trial. The inconsistency of appellant’s position in suggesting that Nave would have impeached the testimony of West, and his motion to exclude a statement made by Nave to officers is at once apparent. Again, there is not even a hint as to what this impeaching testimony would have been. We do not consider the testimony of Hall to have been so favorable to appellant that the mere attack on the credibility of the witness by his codefendant was prejudicial, particularly in view of the admissions extracted from the witness during this cross-examination. Mrs. Hall admitted that she had been twice married, had lost a custody fight over two children in a divorce proceeding and had been a suspect in an unsuccessful search of her house trailer for marijuana. The conflict of defenses was not pointed out.

Since we are unable to say on this record that it was manifest that a severance was necessary in order to have a fair determination of appellant’s guilt or innocence, there was no abuse of the trial court’s discretion.

We agree. Harris, C.J., and Hoi/r and Howard, JJ.


author: Frank Holt, Justice.

text:
    Willie DAVIS v. UNIVERSITY OF ARKANSAS MEDICAL CENTER AND COLLECTION SERVICE, INC.
    77-68
    559 S.W. 2d 159
    Opinion delivered December 19, 1977
    (In Banc)

      William L. Massey, Legal Aid Bureau of Central Arkansas, for appellant.

      J. Gayle Windsor, Jr., for appellees.
   Frank Holt, Justice.

Appellees, University of Arkansas Medical Center (UAMC) and Collection Service, Inc., (CSI) brought suit against appellant alleging that he owed $405.80 to appellee UAMC on a hospital debt. Appellant answered alleging, inter alia, the affirmative defense that CSI was engaged in the unauthorized practice of law and asked dismissal of the action. Appellant initiated discovery on the subject ot the unauthorized practice of law. Following appellees’ responses, appellant considered that CSI’s response was incomplete and filed a motion to compel CSI to further respond. At the hearing on the motion appellee CSI stated that it had provided all the information available and to buttress that position made three witnesses available to appellant for questioning. He examined them for the purpose of determining if further discovery was necessary and, also, in preparation for a trial on the merits at a later date. However, at the conclusion of the hearing, the court awarded judgment to the appellees for the amount they sought. A motion to set aside the judgment was denied.

Appellant contends that he was denied due process of law when the court prematurely awarded a judgment to the appellees at the hearing on his motion to compel and, also, the court exceeded its statutory authority by treating the hearing as a trial on the merits. We agree. The court is specifically authorized to conduct a hearing, as here, on discovery matters. Ark. Stat. Ann. § 28-360 (Repl. 1962). The purpose of such a hearing is to prevent unreasonable delay in discovery so that discovery can be expeditiously completed and the matter can proceed to a trial on the merits.

In Widmer v. Ft. Smith Veh. & Mchy. Corp., 244 Ark. 626, 427 S.W. 2d 186 (1968), we said:

The purpose of discovery procedure is to simplify the issues at the actual trial and is not intended to take the place of the actual trial, nor is it intended to relieve the plaintiff of the burden of proving the allegations of his complaint in a civil case.

Due process requirements are discussed by the Supreme Court of the United States in Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975):

There are certain bench marks to guide us, however. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), a case often invoked by later opinions, said that ‘[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’

See also Renfro v. City of Conway, 260 Ark. 852, 545 S.W. 2d 69 (1977); and Davis v. Schimmel, Trustee, 252 Ark. 1201, 482 S.W. 2d 785 (1972). Additionally, Ark. Stat. Ann. § 22-311 (Repl. 1962) provides:

.... If the time has not been fixed by the court, or unless in such cases they are required by law to take notice, all interested parties, together with their attorneys, shall receive notice from the clerk of the court of any proceeding affecting their rights, and shall be given time to prepare to meet such proceedings, where the defendant or respondent has answered or otherwise plead [pled].

Here the undisputed understanding was that the scope of the hearing was to be limited to appellant’s discovery motion. Appellant’s attorney accordingly questioned appellees’ three witnesses in an effort to discover information from them in order to initiate further discovery if necessary in preparation for a trial on the merits at a later date. Appellant himself was not present and had subpoenaed no witnesses. It is uncontradicted that the case was not set for trial on the merits before either the court or a jury. Consequently, the ruling on the merits at this stage in the proceedings, without notice, was contrary to § 22-311 and denied appellant his federal constitutional right to due process of law. Therefore, it was unnecessary for appellant to show a meritorious defense as a prerequisite for setting aside the judgment. See Davis v. Schimmel, Trustee, supra.

Neither can we agree with appellees’ argument that the alleged affirmative defense of the unauthorized practice of law constitutes a counterclaim against the state in violation of Art. 5, § 10, Ark. Const. (1874) which clothes the state with immunity from being a defendant in her own courts. Further, a defendant in a state action, as here, has a right to raise a legitimate defense in the nature of diminution, reduction, or even satisfaction of the plaintiff’s cause of action where the amount claimed springs out of the very contract or transaction on which recovery is sought. Ark. Dept. of Correction v. Doyle, 254 Ark. 102, 491 S.W. 2d 602 (1973). However, the narrow issue presented here is whether CSI is engaged in the authorized practice of law and, therefore, is prohibited from representing CSI. Even so, it would not extinguish or invalidate a just debt which appellant admittedly owes. Gaylor v. Gaylor, 224 Ark. 644, 275 S.W. 2d 644 (1955). Appellant, as a litigant, has standing to question CSI’s authority to practice law. McKenzie v. Burris, 255 Ark. 330, 500 S.W. 2d 357 (1973).

Reversed and remanded for a hearing on the merits in which appellant has the right to offer proof on the issue of CSI’s unauthorized practice of law.

Byrd, J., not participating.


author: George Howard, Jr., Justice.

text:
    City of NEWPORT v. Marvin EMERY, Floyd ROBINSON and Gary FINLEY (Appellees); James DOUTHIT, Troy HARMON, Pank SMITH, Eugene TURNER, Amos MAYHUE and Laura FOLK (Intervenors)
    77-115
    559 S.W. 2d 707
    Opinion delivered December 19, 1977
    (Division I)

      Bowie, Carlyle & Erwin, by: Harold Erwin, for appellant.

      Pollard & Cavaneau, for appellees and intervenors.
   George Howard, Jr., Justice.

This appeal involves the question of whether the lower court correctly found by a preponderance of the evidence and upon competent evidence that the construction of a sanitary landfill by the City of Newport constitutes a nuisance, in fact, of a private nature.

THE FACTS

This action was instituted by Marvin Emery, Floyd Robinson and Gary Finley against the City of Newport to enjoin the continued construction of a sanitary landfill project approximately sixteen miles south of Newport near the village of Coffeeville, Arkansas. The site of the landfill is on the side of a hill in a wooded area. In testifying about the distance of the landfill site from appellee Robinson’s home, Mr. Robinson stated:

“. . . my house is approximately half a quarter from the beginning of the landfill where they started putting up their fence. If I got in my car and drove to the landfill it would be 200 yards from my house to the beginning of the fill.”

Petitioners alleged in their complaint, inter alia, that the proposed site of the landfill is in an area that constitutes a natural drain; and that petitioners’ property and residences are located at a lower elevation near the base of the hill and as a consequence,, petitioners would be adversely affected by contaminates, pollutants and leachate; that the landfill will serve as a breeding place for insects, vermin and disease. Petitioners alleged that such conditions would constitute a nuisance per se; and that petitioners would suffer “special damages and damages to their real property.”

Subsequently, petitioners amended their petition to allege, among other things, “. . . the landfill . . . will cause dimunition in the value of their property.” The appellant, City of Newport, denied the contention of the petitioners.

James Douthit, Troy Harmon, Pank Smith, Eugene Turner, Amos Mayhue and Laura Folk, residents and land owners in the area of the proposed sanitary landfill, intervened as party petitioners.

TRIAL COURT’S FINDINGS

After hearing the evidence, the trial court rendered the following finding and decree:

“Now finally as stated, I think I stated, the court expressly does not find that this type of sanitary landfill is a public nuisance, but would make a finding it is well designed landfill appropriate and needed. The specific finding is solely that it is a private nuisance to Floyd Robinson who is a party to the case because the court is satisfied that Mr. Robinson would suffer damages to the market value of his home by the establishment of the landfill ...”

The trial court’s decree, in part, provides:

“. . . the landfill proposed to be utilized by the City of Newport at the location alleged in the pleadings constitutes a private nuisance as to plaintiff Floyd Robinson because of its effect in substantially diminishing the value of his property. (Emphasis added)
3. Defendant in this action should therefore, be enjoined from further construction or operation of a sanitary landfill on the site set forth in the pleadings.”

THE DECISION

Reviewing the evidence de novo, we are not persuaded that appellant’s sanitary landfill will certainly amount to a nuisance in the neighborhood. Perhaps, the landfill may, as appellees’ proof indicates, prove to be a serious annoyance to the residents in the vicinity, but on the other hand, it may turn out to be harmless.

Appellees’ real estate appraiser who offered testimony to establish appellees’ claim of diminution in property values, testified on cross examination as follows:

“. . . The basis of my opinion that the public would fear the landfill is because of the possibilities of various things that might happen in their minds although that may not actually occur. I have never appraised a landfill ... I have no experience at all on my own personal knowledge as a real estate appraiser in appraising lands near landfills ...”

The evidence presented by appellees to establish the claim of diminution in property values is, at best, uncertain, speculative, conjecturable and insubstantial. Indeed, time and experience have demonstrated the futility of predicating human affairs upon the quicksand of conjecture, speculation and unsupported fears. Moreover, the construction of a jailhouse or a service station in an essentially residential area may cause a depreciation in property values, but not a nuisance. Indeed, more is required to establish a nuisance than a bare assertion of a depreciation in property values. In the circumstances surrounding the issues in this case, equity ought not to intervene and prohibit the construction of the sanitary landfill. Such a prohibition is permissible only when the preponderance of the testimony shows that the activity is certain to be a nuisance. Kimmons v. Benson, 220 Ark. 299, 247 S.W. 2d 468; Cooper v. Whissen, 95 Ark. 545, 130 S.W. 703.

The trial court in concluding that an injunction should be entered in this action enjoining the City of Newport from proceeding further with the construction of the sanitary landfill relied principally upon the case of Arkansas Release Guidance Foundation v. R. J. Needler, 252 Ark. 194, 477 S.W. 2d 821, where this Court sustained the trial court’s finding that the circumstances established a private nuisance and accordingly, an injunction was issued. However, the factual situation in Needier is to be distinguished from the facts in the instant case. In Needier, this Court found the chancellor’s finding that the operation of a half way house for parolees and prisoners constituted a private nuisance was not against the preponderance of the evidence. The testimony established the diminution of property values attributable to the operation of the home, the real and reasonable fear and apprehension by nearby residents for their safety, coupled with the inclusion of a sex offender as a resident, and incidents involving the use of alcohol by one parolee. Moreover, the resultant injury to nearby property and residents was certain, substantial and beyond speculation and conjecture.

We conclude that the trial court’s decree in this case should be reversed and the cause dismissed. The appellant may, at its own risk, proceed with construction, but our action is without prejudice to the appellees’ right to file another suit, if the sanitary landfill becomes a nuisance.

Reversed and dismissed.

We agree: Harris, C.J., and George Rose Smith and Hickman, JJ.

       Leachate is water getting into the decaying garbage either through overflow from upstream area or a rainfall and leachating the material out of the decaying garbage.

       Petitioners did not pray for monetary damages in their initial petition nor in their amended petition.


text:
    Lonnie James SANDERS v. STATE of Arkansas
    CR 77-171
    559 S.W. 2d 704
    Opinion delivered December 19, 1977
    (Division I)
    [Rehearing denied January 23, 1978.]

      McArthur & Johnson, for appellant.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Justice.

The fundamental inquiry to be made by the Court in this case is whether or not the warrantless search of appellant’s suitcase by Little Rock Police officers is reasonable under the circumstances involved.

FACTS

Appellant, Lonnie James Sanders, was charged by information by the Prosecuting Attorney of the Sixth Judicial District with possession of a controlled substance (marijuana) with intent to deliver in violation of Act 590 of 1971, as amended.

The charge was the culmination of an intensive surveillance of appellant by the Little Rock Police Department, hereafter referred to as the police, just prior to and during his scheduled arrival at the Little Rock Municipal Airport on April 23, 1976.

The police had been advised by a confidential informant some time prior to April 23, 1976, that appellant had sent an empty green suitcase to Dallas, Texas, on a flight and that in a day or two, appellant would go to Dallas to pick up the suitcase and that the suitcase would be containing marijuana.

On the morning of April 23, 1976, the informant advised the police that appellant would be arriving at the Municipal Airport of Little Rock, Arkansas, at 4:35 p.m. on April 23, 1976, and would deplane at Gate 1 and that appellant would have the green suitcase containing the contraband. The police set up a surveillance at the Municipal Airport awaiting the arrival of appellant. As appellant exited Gate 1, appellant was observed carrying two bags and immediately existed the terminal and placed the two bags in the trunk of a waiting taxicab. Appellant returned to the luggage area inside the terminal and took a green suitcase from the luggage rack and passed it to one David Rambo. Appellant immediately left the terminal and got into the compartment of the cab. Rambo waited inside the terminal near the luggage area a few minutes and he subsequently exited the terminal and placed the green suitcase in the trunk of the cab and took a seat in the compartment of the vehicle. As the taxi departed the airport, the police followed in an unmarked vehicle. As the cab proceeded down East Roosevelt Road, a separate unit of the police, upon request of the officers following the taxi, stopped the taxicab and the officers following the cab requested the cab driver to open the trunk of the vehicle. Another officer directed appellant and Rambo to step out of the vehicle and stand to the side of the taxicab; police officers, without the consent of the appellant or Rambo, opened the green suitcase and found 9.3 pounds of marijuana. Appellant and Rambo were then placed under arrest and appellant was placed in one police unit and Rambo in another and were taken to the Little Rock Police Department.

On January 31, 1977, a hearing was conducted on appellant’s Motion to Suppress the evidence which was denied by the trial court.

On February 3, 1977, appellant was found guilty by a jury as charged and was given ten years in the Department of Correction and a fine of SI5,000.00.

APPELLANT’S CONTENTIONS

Appellant alleges the following as the grounds for reversal of his conviction:

1. The trial court erred in denying appellant’s Motion to Suppress the evidence gained as a result of an illegal search.
2. The trial court erred in allowing the co-defendant to present evidence of a statement allegedly made by appellant and further erred in allowing the co-defendant to present rebuttal evidence directed toward appellant.
3. The trial court erred in admitting into evidence the subject of this charge when it was not properly identified.

THE SEARCH

Appellant’s contention that the warrantless search of his green suitcase, under the existing circumstances, was unreasonable and consequently in violation of the Fourth Amendment to the United States Constitution has merit. We conclude that the trial court erred in denying appellant’s Motion to Suppress the evidence confiscated from the suitcase and, therefore, appellant’s conviction is reversed.

It is well recognized that warrantless searches are per se unreasonable unless they fall within some established exception to the warrant requirement of the Fourth Amendment to the United States Constitution. One of these exceptions is probable cause coupled with exigent circumstances. But probable cause alone is insufficient for a warrantless search to square the mandate of the Fourth Amendment against unreasonable searches. United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538; Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022; Horton v. State, 262 Ark. 211, 555 S.W. 2d 226; Perez v. State, 260 Ark. 438, 541 S.W. 2d 915.

The information supplied to the police by the confidential informant is adequate to support the State’s claim that the police had probable cause to believe that appellant’s green suitcase contained a controlled substance when the police confiscated the suitcase and opened it. For the confidential informant, who had supplied reliable information in the past, had advised the police of appellant’s mode and manner of transporting marijuana into the state; the police were given the type and color of the suitcase that was being used by the appellant; the approximate date that the empty suitcase was sent to Dallas was supplied to the police; the date and time of appellant’s arrival at the Little Rock Municipal Airport was within the immediate knowledge of the police; the name of the commercial airline, as well as the flight number that appellant would be traveling on was revealed to the police by the informant; and the police were also told the gate number that appellant would exit when he deplaned.

Moreover, appellant, at the time, was a resident of Little Rock and was no stranger to the police. The search of the green suitcase can not be justified under the “automobile exception” as claimed by the State. It must also be remembered that appellant’s mode of transportation from the Little Rock Municipal Airport was by a local taxicab; the green suitcase was locked in the trunk of the taxicab; the police took possession of the suitcase while appellant was in the compartment of the taxicab and appellant was later taken into immediate custody and placed in a police car; the confiscation of appellant’s suitcase took place shortly after 4:35 p.m. in a metropolitan area. Indeed, there is nothing in this set of circumstances that would lend credence to an assertion of impracticably in obtaining a search warrant, or support the State’s contention that “mobility of the object to be searched (the green suitcase)”justified a warrantless search. See: Perez v. State, supra; Tygart v. State, 248 Ark. 125, 451 S.W. 2d 225, cert. den. 400 U.S. 807, 91 S. Ct. 50; Coolidge v. New Hampshire, supra.

To paraphrase the Unied States Supreme Court’s observation in United States v. Chadwick, supra, the factors which diminish the privacy aspects of an automobile do not apply to appellant’s suitcase. Luggage contents are not open to public view, except as a condition to a border entry ór common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person’s expectations of privacy in personal luggage are substantially greater than in an automobile.

Nor does the suitcase’s mobility justify dispensing with the added protections of the Warrant Clause. Once the Little Rock police had seized appellant’s suitcase from the trunk of the taxicab and had the suitcase under their exclusive control, there was not the slightest danger that the suitcase or its contents could have been removed before a valid search warrant could be obtained. The initial seizure of appellant’s suitcase, the validity of which appellant does not contest, was sufficient to guard against any risk that evidence might be lost. With the suitcase safely immobilized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant.

CO-DEFENDANT OFFERS AS EVIDENCE STATEMENT ALLEGEDLY MADE BY APPELLANT

Over strenuous objections of appellant, on the grounds of relevancy, the trial court permitted Jonas Rambo to offer the following evidence in support of appellant’s co-defendant, David Rambo. “He (appellant) told me if I’d let David (the co-defendant) take the rap for a year, he’d get him out of jail. First told me he had a lawyer for both of them, then went to court and found he didn’t have a lawyer for David, but he told me if I’d let David take the rap for both of them he would go ahead. He’d make enough money to get a good lawyer and get him out.”

We hold that the trial court did not commit error in admitting this testimony inasmuch as the testimony was quite relevant inasmuch as David Rambo, in testifying in his own behalf, corroborated the testimony of law enforcement officers as to what transpired at the airport after appellant and the co-defendant arrived from Dallas. It was David Rambo’s contention that appellant was completely unknown to David Rambo before the two men met at the Dallas, Texas, airport, while on the other hand, appellant claimed that he and David Rambo were cousins, and that he had no knowledge that the suitcase contained marijuana, but he had agreed to carry the bag once the two reached Little Rock in return for $5.00 that appellant had agreed to pay him. It is obvious that David Rambo was seeking to convince the jury that he had participated in the drug running operation unknowingly and that his only function in the scheme was to take the rap for appellant in this case appellant’s activities were exposed and criminal charges resulted. Moreover, appellant specifically claimed that he had never seen the suitcase containing the drugs until Rambo placed the suitcase in the taxicab to be used in leaving the airport. In addition, Jonas Rambo supported his son’s (David Rambo) testimony and rebutted the testimony of appellant. Jonas Rambo testified that, contrary to appellant’s contention, the two defendants were not related. See: Rule 401, Arkansas Uniform Rules of Evidence.

Appellant also claims that the trial court committed error in permitting Jonas Rambo to testify in behalf of his son, David Rambo, after David Rambo and appellant had completed presenting evidence in support of their respective cases. This contention is without merit inasmuch as it is well settled that a large discretion is vested in the trial judges as to the time of introducing testimony. Consequently, reversals will not be ordered unless it is shown that this discretion has been abused to the prejudice of the objecting party. No prejudice has been demonstrated. See: Marks v. State, 192 Ark. 881, 95 S.W. 2d 634.

Reversed and remanded.

We agree: Harris, C.J., and Fogleman, Holt, and Hickman, JJ.

       The informant had supplied information to the police in the past which had proven to be reliable and rewarding in the police’s effort to cope with the drug problem.

       The evidence in this case supports the conclusion that the relationship between the suitcase and the taxicab is coincidental, and the suitcase was not a part of the area from which appellant might gain possession of a weapon or destroy the evidence contained in the suitcase. See: Chimel v. California, 395 U.S. 752, 763 (1969).


author: Carleton Harris, Chief Justice.

text:
    ALUMINUM COMPANY OF AMERICA v. John A. WILSON
    77-244
    559 S.W. 2d 710
    Opinion delivered January 9, 1978
    (In Banc)

      Rose, Nash, Williamson, Carroll, Clay <2? Giroir, by: Phillip Carroll, for appellant.

      Silas H. Brewer, Jr., for appellee.
   Carleton Harris, Chief Justice.

On July 12, 1972, appellee, John A. Wilson, suffered a compensable injury while employed by Aluminum Company of America, appellant herein, the injury being to both knees. Temporary total benefits were paid from July 13, 1972, until April 5, 1973, and from that time until August 16, 1975, permanent partial disability benefits were paid for a period of 123.75 weeks; in addition, all medical expenses were paid. Dr. J. Shelby Duncan of Benton, Arkansas, was appellee’s physician and on April 6, 1973, Dr. Duncan reported as follows:

“I feel at this point he has reached the end of his healing period and feel that his permanent physical impairment is in the neighborhood of 25 to 30 per cent to the knees bilaterally. However, since this is a bilateral injury and one knee has affected the rehabilitation of the other, I feel that this rating should be to the body as a whole rather than to the individual extremities. Utilizing the Manual for Orthopedic Surgeons in evaluating permanent physical impairment prepared by the American Academy of Orthopedic Surgeons as my guide, I would estimate his permanent physical impairment to be in the range of 25 to 30 per cent to the body as a whole.”

The doctor had previously stated on March 6 that Wilson would not be able to go up and down ladders very easily “and I think if he returns to any type of manual labor that he is going to have troubles.”

Appellee accepted voluntary retirement on April 1, 1973, five days before he reached the end of his healing period.

On December 5, 1975, a hearing was held before an administrative law judge who decided that Wilson was permanently and totally disabled and appellant was directed to pay to him permanent total disability benefits commencing on April 6, 1973 (accrued benefits to be paid in a lump sum), such payments to continue pursuant to the Arkansas Workmen’s Compensation Act. On appeal to the Full Commission, that tribunal agreed with the administrative law judge, and in discussing the claim, mentioned that claimant had only a fourth grade education and can barely read or write; his work experience included log cutting, miner, railroad worker, and employment by Alcoa as a janitor, a scaler operating large air guns, and as a “buggy driver” and “utility” worker. The injury was occasioned when a large valve “exploded” knocking Wilson from a large stand in such a manner that he hit on the concrete on both knees. It was pointed out that Dr. Duncan’s examination had revealed bilateral complete traumatic rupture of the quadriceps tendon, requiring surgery on both knees, and that approximately eight months later Dr. Duncan had made the remark, heretofore mentioned, that any return to manual labor would lead to further troubles. The Commission stated:

“The evidence in this case reflects that we are concerned with two scheduled injuries in that both of the claimant’s knees have sustained physical impairment [pointing out the testimony of Dr. Duncan previously quoted] ...
We agree with Dr. Duncan that the injuries should not be treated as separate scheduled injuries and, as such, the physical impairment being represented by the sum of physical impairment to both knees. We adopt the multiple impairment principle which recognizes the common-sense fact that, when two or more scheduled injuries occur together, the disabling effect may be far greater than the arithmetical total of the scheduled allowances added together. Larson Workmen’s Compensation (desk Edition, Section 58.20). The basis for the principle applied to multiple injuries is partially explained in Dr. Duncan’s report which indicates that the rehabilitation of one member is affected by injury to the other member.
However, for the purpose of evaluating claimant’s permanent disability, we find it unnecessary to apply the multiple injury principle. Dr. Duncan rates the physical impairment at 25 to 30 percent to the knees bilaterally and transposes that rating to á body as a whole rating of 25 to 30 percent ...”

The award of the administrative law judge was upheld and the Commission, under the authority of Act 1227 of 1975, directed that claimant’s attorney receive an additional fee of $100.00. The Saline County Circuit Court affirmed the Commission and from the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the award of permanent and total disability benefits is not supported by any substantial evidence, and it is then contended that the award of the additional $100.00 attorney’s fee to claimant’s attorney constituted error.

Appellant contends that Wilson is not unemployed because of the debility of his knees, but rather because he voluntarily chose to retire. It is pointed out that Wilson, 68 years of age, is ambulatory, hunts and fishes, drives a car, and attends church.

We hardly consider this comparable to climbing, or kneeling, which duties were required by his service as a utility man for Alcoa, duties which were incumbent each workday.

While it is true that under the union contract with the company, retirement was not compulsory at age 65, Wilson testified that the personnel manager at Alcoa urged him to retire, and he further stated, “I couldn’t work and they had done told me I wasn’t gonna come back to work. ” Certainly, it would have been difficult for Wilson, crippled as he was, with a fourth grade education, and past retirement age, to obtain other employment when his entire work experience throughout his life had been manual labor. Dr. Duncan pointed out that the injury being bilateral, meaning that the injury to each knee affected recovery and rehabilitation of the other, prevented the type of a recovery that could have been expected with injury only to one knee. As previously mentioned, the doctor stated that, in his view, if Wilson returned to any type of manual labor, “he is going to have troubles.” Appellant argues that the two scheduled knee injuries cannot be “tied” together so as to apportion disability to the body as a whole, and it points out that we have held that a scheduled injury cannot be apportioned to the body as a whole in determining the extent of permanent partial disability. See Anchor Construction Co. v. Rice, 252 Ark. 460, 479 S.W. 2d 573. But here, we are not dealing with permanent partial disability; rather, we are dealing with permanent total disability.

More than ten years ago, in McNeely v. Clem Mill & Gin Co., et al, 241 Ark. 498, 409 S.W. 2d 502, this court said:

“The principal question is whether an employee who suffers a scheduled injury which proves to be totally and permanently disabling is entitled only to the restricted compensation specified for the scheduled injury or to the greater benefits provided for total and permanent disability. The commission took the more liberal view, but its award was set aside by the circuit court. We agree with the commission.
The claimant, at the time of his injury in 1961, was a 50-year-old manual laborer, unable to read or write. His accident resulted in the total loss of the use of his right leg below the knee. That is a scheduled injury, for which he received compensation for the full statutory period of 125 weeks. Ark. Stat. Ann. § 81-1313 (c) (4) and (21) (Repl. 1960). When the present claim for additional benefits was heard the claimant could walk only with the aid of crutches and a leg brace. The commission found, upon proof that we consider to be substantial, that McNeely was totally disabled. Upon that finding the commission ordered that the payment of compensation be continued.”

Likewise, in Anchor Construction Co. v. Rice, supra, we stated:

“As we view the record the Commission properly found that there was no permanent disability to any part of the body except the left lower extremity below the hip. Of course this reduces the permanent injuries to a scheduled injury under Ark. Stat. Ann. § 81-1313 (c). In Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W. 2d 862 (1971), we held that an injury scheduled under Ark. Stat. Ann. § 81-1313 (c) could not be apportioned to the body as a whole in determining the extent of permanent partial disability as distinguished from permanent total disability. [Citing McNeely]

Both of these cases were mentioned in Johnson Construction Co. v. Noble, 257 Ark. 957, 521 S.W. 2d 63, where this court commented:

“The appellants cite McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502, where we first held that benefits for scheduled injuries under Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960) are not limited to the schedule when the scheduled injury renders the claimant totally disabled. The appellants then cite Anchor Const. Co. v. Rice, 252 Ark. 460, 479 S.W. 2d 573, wherein we held that where the injury is to a scheduled member, the Commission cannot award disability benefits greater than the rating for permanent partial physical impairment provided in the schedule unless the disability is permanent and total ...”

We conclude that there was substantial evidence to support the award.

As to the second point, we agree with appellant. Ark. Stat. 81-1332 sets out the fees for legal services in compensation cases, and the General Assembly of 1975, in its extended session of 1976, enacted Act 1227 which, inter alia, added the following paragraph:

“In addition to the fees herein provided, if the claimant prevails on appeal, the attorney for the claimant shall be entitled to an additional fee at the full Commission and Supreme Court levels, such additional fee to be paid by the employer or carrier, and such fee to be set by the Commission and/or Supreme Court. The maximum fees allowable hereunder shall be the sum of One Hundred Dollars ($100) on appeals to the full Commission from a decision of an administrative law judge, and the sum of Two Hundred and Fifty Dollars ($250) on appeals to the Arkansas Supreme Court from a decision of the Commission. In determining the amount of fees, the Court shall take into consideration the nature, length, and complexity of the services performed, and the benefits resulting therefrom to the compensation beneficiary.”

The Commission awarded the attorney for appellee an additional $100, this amount relating to the appeal from the administrative law judge to the Commission, and being the maximum authorized by that legislation. Appellant argues that this fee should not be allowed inasmuch as the attorney for appellee did not file a brief with the Commission, nor perform any additional services in connection with the appeal. This point is not mentioned by appellee in his brief.

We recognize that the amendatory provision, on its face, appears to only require this court, on appeals to it, to, in fixing fees, take the other factors mentioned into consideration, i.e., there is no precise language requiring that the Commission do likewise in setting its fee on an appeal from the administrative law judge.

However, it appears that there was a perfectly obvious reason in omitting explicit language, viz, the requirement that the Commission consider the various factors such as nature, length and complexity of services performed, for this requirement is already a part of the very section referred to. The amendment is not really a separate act, but is to be read in conjunction with the other provisions of § 81-1332. For that matter, the amendment itself uses the term “maximum fees allowable,” and the word “maximum” certainly means that the Commission has a right to award a lesser sum.

We have heretofore held that in fixing a fee, the statute requires the Commission to take into consideration the nature, length and complexity of the services performed, as well as the benefits resulting to the claimant. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480.

It is recognized that the maximum amount ($100) is not a large award, and accordingly would not require a detailed showing as to time spent or tbe complexities of the services rendered, but we do think that there must be a showing of some additional service — and the Commission should set out the basis for any allowance made. There is here no showing of what services were rendered in behalf of appellee by his attorney on the appeal from the administrative law judge, and accordingly we reverse on Point 2.

It is so ordered.

Holt, Hickman and Howard, JJ., dissent as to the reversal.

       Wilson described his hunting as walking a short distance, and sitting under a tree.

       The record reflects that Wilson, up until the time he was injured (when he was 64 years of age), was in good health, working everyday, and had not missed a day of work in four or five years.


author: George Rose Smith, Justice.

text:
    Charles S. GEORGE et al v. John T. JERNIGAN, Judge
    77-119
    560 S.W. 2d 221
    Opinion delivered January 9, 1978
    (Division I)
    [Rehearing denied February 13, 1978.]

      Philip W. Ragsdale, for petitioners.

      Homer Tanner, for respondent.
   George Rose Smith, Justice.

Arkmo Lumber & Supply Company brought suit against the petitioners to enforce a materialman’s lien. The petitioners appeared specially and moved to quash the service on the ground that the summons merely directed them to answer the plaintiff’s complaint within 20 days, without further warning them, in the language of the statute, that they were required to answer “under the penalty of the complaint being taken for confessed.” Ark. Stat. Ann. § 27-306 (Repl. 1962). Upon the trial court’s overruling the motion to quash service, the petitioners sought a writ of prohibition here.

It is argued, on the authority of DeSoto, Inc. v. Crow, 257 Ark. 882, 520 S.W. 2d 307 (1975), that the asserted defect in the summons denies the petitioners due process of law. This argument is completely without merit. In DeSoto a default judgment had been entered against a garnishee pursuant to a writ of garnishment that merely required the garnishee to answer what he owed the principal defendant, without any indication that failure to answer could result in judgment against the garnishee. We held that in the circumstances the entry of the default judgment was a denial of due process.

If the judgment in DeSoto had been upheld, obviously the garnishee would have been prejudiced by the defective writ. Here, to the contrary, there has been no prejudice whatever. The petitioners employed counsel and appeared specially in an effort to quash the service. They have not been denied either notice or an opportunity to be heard. We need not speculate upon their plight if they had ignored the summons and allowed judgment to be entered by default. That situation is not before us.

Writ denied.

We agree. Harris, C.J., and Fogleman and Holt, JJ.