text:
    G. W. SISK, d/b/a Sisk Stave Mill and Hartford Ins. Co. v. Bill R. PHILPOT, Guardian of the Estate of Herman Warden Davis
    5-4448
    423 S. W. 2d 871
    Opinion delivered February 12, 1968

      Shaver, Tackett & Tones, for appellants.

      Shaw & Shaw, for appellee and cross-appellant.
   J. Fred Jones, Justice.

This is a workmen’s compensation case presenting an unusual question under the provision of Ark. Stat. Ann. § 81-1311 (Repl. 1960) which provides in part as follows:

“The employer shall promptly provide fór an injured employee such medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may he necessary during the period of six [6] months after the injury, <or for such time in excess thereof as the Commission, in its discretion, may require.”

The precise question presented in this case is whether or not the employer (or compensation insurance carrier) 'can be required to provide nursing service by the injured employee’s mother and father. The question is not whether nursing service should be provided. The question is where and by .whom the service should he rendered.

On November 24, 1965, while in the course of his employment, Herman Davis, a young man 28 years of age, sustained an accidental injury to his left hand when it was struck with a chopping axe. While under anesthetic during the medical repair of the wound to the hand, his heart stopped functioning for a period of some twenty-two minutes, resulting in severe and irreversible brain damage. As a result of the brain damage, Herman is mentally incompetent and physically helpless. He lives with his mother and father where he requires constant attention twenty-four hours each day.

The employer and compensation insurance carrier recognized and accepted the claim as compensable. They furnished the required medical, surgical, hospital and nursing service, including medicine, crutches, etc. during the period of six months after the injury and for some time thereafter. They recognize that Herman Davis is permanently and totally disabled as a result of his injury, and they are paying the weekly amounts due Herman for this disability. They recognize and are willing to accept their responsibility for extended medical benefits, including nursing service beyond six months, but they do not recognize their obligation to pay Herman’s parents for rendering this service in their home.

Bill R. Philpot is the legally appointed and acting guardian of the estate of Herman Davis, and Johnnie Davis, the father of Herman, is guardian of his person. The compensation carrier paid Johnnie Davis $100.00 per week for a period of three months for nursing Herman, but these payments were suspended and Mr. Phil-pot filed claim, apparently on behalf of Herman and his father, for reinstatement of payments for nursing expenses and claimed $500.00 per month as a reasonable amount to be paid to Herman’s father and personal guardian for the nursing care being rendered to Herman. Mr. Philpot is designated claimant and the employer and compensation insurance carrier are designated “respondents” in the record of proceedings before the Commission.

A hearing was had before the referee in Mena at which time the claimant was represented by counsel, and the respondent was not represented and did not participate. The referee awarded $500.00 per month for the care of Herman Davis and .ordered this amount, from the date of last payment, to be paid in one lump sum and such payments to continue on a monthly basis. The referee awarded the maximum attorney fee to claimant’s attorney.

On review by the full Commission, respondents did appear and offered evidence as to the availability of hospital and rest home facilities in the area of Mena, and respondents argued that a rest home for Herman would be some less expensive and much more efficient in caring for Mm. Following tlie hearing before the full Commission on review, the Commission made the following award:

“Beginning the day after the last day for which Johnnie Davis was paid by respondents for the care of Herman Warden Davis, respondents shall resume payments to Johnnie Davis at the rate of $500.00 per month with such payments to continue subject to the provisions and limitations of the Act, and the further directions of this Commission. All sums accrued to date shall be paid in one lump sum. Bespondents shall, of course, continue the payment of weekly compensation benefits at $34.91, to Mr. Bill B. Philpot, as guardian of the estate of Herman Warden Davis, with such payments to continue subject to the provisions and limitations of the Act.
“Bespondents shall, also, provide Herman Warden Davis with the necessary and reasonable medical attention required as the result of his admitted com-pensable injury on November 24, 1965.
“Bespondents shall, also, pay to claimant’s attorney, Mr. Bobert Shaw of Mena, an attorney’s fee in the sum of $600.00, which is in addition to the other benefits awarded in tMs case.”

This award of the Commission was affirmed on appeal to the circuit court and on appeal to this court, respondents rely on the following point for reversal:

“The Court erred in allowing the employee’s father the sum of $500.00 per month as compensation for his care of the employee.”

The claimant has cross appealed relying upon the following points:

“The Court properly allowed the employee’s father the sum of $500 per month as compensation for his services in caring for the injured employee.
“The Court erred in failing to award attorney fees based upon the total award.”

Herman Davis was first hospitalized at De Queen where his brain damage occurred. He was then transferred to a hospital in Texarkana where he was under intensive medical care by a neurosurgeon, and later by a physiotherapist. In preparation for releasing him to his home, Herman’s mother and father went to Texar-kana and observed and practiced the physical therapy treatment being administered under the supervision of the neurosurgeon and physiotherapist. At the suggestion of the compensation carrier and the neurosurgeon, Herman’s mother and father purchased a home in Mena and moved to it from their former home several miles out in the country from Mena, in order that Herman would be near doctor’s offices and where telephone service would be available. Herman was first transferred from the hospital in Texarkana to a hospital in Mena, and was later transferred to the home of his mother and father in Mena where he has remained since his release from the hospital.

When Herman was first released from the hospital, he could not bend his knees and could not speak. He has improved under the care of his parents, to the extent that he can now bend his knees and repeat simple single words, but he still does not recognize anyone and is still totally helpless insofar as mental processes and body functions are concerned. He requires constant nursing care twenty-four hours per day. He weighs 170 pounds and must be lifted and attended as would a very young baby. The service of two individuals is required in lifting Herman to avoid injury, and his father and mother have learned to interpret and respond to his symptoms of discomfort and physical needs.

After Herman’s release from the hospital, a practical nurse was first employed to stay with him in his home and the compensation carrier paid the nurse $30.00 per day, amounting to $900.00 per month. The work became so strenuous for the nurse she quit. Although effort has been made, no other person has been found who is capable or willing to accept employment in nursing Herman.

Herman’s father was earning more than $500.00 per month as an employee of the U. S. Forestry service. He quit this employment in order to assist his wife full time in attending their injured son. Mr. Davis testified as to the full days routine recommended by the doctors and as carried out by him and his wife in caring for. Herman.

Dr. Calvin Austin, a practicing physician in Mena, testified that he had observed Herman in the home of his parents and the overall substance of his testimony is to the effect.that Herman, is receiving excellent care and better care than could reasonably be expected if he were in a rest home.

Dr. Retia L. Edmonson of Texarkana, who had attended Herman following his injury, rendered a supplementary report on March 21, 1967, of examination conducted on March 17, in which she stated:

“This patient has continued to show some progress in the last several months, but he continues to be totally helpless and it is- necessary for him to have continued constant supervision and care. T'he patient’s parents have taken excellent care of him, and he has been able to remain at home with them. I feel that these parents are well qualified to continue caring for their son. 'Since the patient has no control over his sphincters (urination and bowel movements) a' routine has been set by the parents, who both must assist the patient in his daily activities.
* * * The parents have done a lot for their son; they are interested in his health and welfare, and by this time they-are quite well trained in his care.”

There is no medical evidence, in the -record, even suggesting that Herman is not receiving the best possible nursing care and attention at the hands of his mother and father. There is no medical evidence, in the record, that Herman would be better, or as well, provided for in rest home on a hospital. All the medical evidence, in the record before us, is exactly to the contrary. There is no medical or other evidence that Herman does not require full-time nursing attention. All the •evidence on this point is to the effect that such attention is required.

The statute does not limit the medical, surgical, hospital and nursing service, for which the employer is liable, to any particular place or to be performed by any particular individuals. The statute does provide, however, “all persons who render service or provide things mentioned herein [Ark. Stat. Ann § 81-1311 (Repl. 60)] shall submit the reasonableness of the charges to the Commission for its approval, and when so approved, shall be enforceable by the Commission in the same manner as is provided for the enforcement of compensation payments.”

Under the facts and circumstances, as evidenced by the record in this particular case, we are of the opinion that there was substantial evidence to sustain the findings and award of the compensation Commission and that the judgment of the circuit court sustaining the award should be affirmed.

Ark. Stat. Ann. § 81-1332 (Repl. 1960) sets a maximum limitation on attorney fees that may be legally charged in a compensation case and provides that the attorney’s fee, to be valid, must be approved by the Commission. The last sentence of this section is as follows:

“In determining the amount of fees, the Commission shall take into consideration the nature, length and complexity of the services performed, and the benefits resulting therefrom to the compensation beneficiaries.”

Thus it is seen that a great deal of discretion is placed in the Commission in approving attorney fees within the percentage limitations of the statute, and we find no abuse of the Commission’s discretion in limiting the award of attorney’s fee to the maximum percentage of the accrued amount due under the award in this partially controverted case, rather than on the amount paid and to be paid under the award, as contended by ap-pellee on cross appeal. As pointed out in the case of Sparks Memorial Hospital v. Walton, 229 Ark. 1014, 320 S. W. 2d 102, this court does not award attorney fees for appeals in compensation cases, that authority rests in the sound discretion of the Workmen’s Compensation Commission.

Affirmed on appeal and cross appeal.


source: Caselaw Access Project

author: Conley Byrd, Justice. Carleton Harris, Chief Justice,

license: Public Domain

text:
    ARKANSAS LOUISIANA GAS COMPANY v. Lillian HOWELL et al
    5-4440
    423 S. W. 2d 867
    Opinion delivered February 12, 1968

      Douglas Bradley, for appellant.

      Kirsch, Cathey & Brown, for appellees.
   Conley Byrd, Justice.

From a jury award of $4,278 as the just compensation due appellees Lillian and Nettie Howell for the taking of a 2.5-acre tract along the east side of 119 acres owned by them adjacent to the city of Paragould, appellant Arkansas Louisiana Gas Company brings this appeal, alleging as reversible error the following points:

I. The court erred in admitting unrecorded plats into evidence, and other instruments referring to an unrecorded plat.

II. The court erred in not permitting a continuance on appellant’s plea of surprise, or permitting the pleadings to be amended to conform with the proof.

III. The court erred by permitting speculative arbitrary and. fictitious testimony with reference to damage, and by failing to strike the testimony of witness Dennis T. Jarrett and Johnny A. Knight except for lands within right-of-way.

IV. The court instructed the jury erroneously as to the measure of damage to real property..

V. The verdict is excessive.

I.

On the issue of the unrecorded plat, the testimony showed that appellees’ 119 acres was south of and adjacent to the city of Paragould. A portion of the property was actually within the city limits. The northeast corner of their property abutted the southernmost terminus of Seventh Street, a north-south through street. Ap-pellees contended that since the 2.5-acre easement took the portion of the property abutting the southernmost terminus of Seventh Street, a subdivider would have to make a 24-foot jog in Seventh Street to reach the property, and that as a result of this jog or access the 39.29 acres ready for residential subdivision was damaged. A portion of the property 241.2 feet east and west by 135 feet north and south had been sold prior to the eminent domain action by a metes and bounds description with this addendum:

‘ • . . . which property is also described as Lots 1, 2 and 3 of ‘Block A of Howell’s Second Addition according to an unrecorded plat of Howell’s Second Addition, which Plat was prepared by Knight Laird and dated December, 1963.”

The unrecorded plat introduced into evidence is totally irrelevant to any of the issues involved. All the witnesses recognized that the portion of the property covered by the plat was suitable and ready for residential subdivision. All testimony treated the area on an acreage basis for valuation purposes.

Appellant contends that under Arkansas State Highway Comm’n v. Parks, 240, Ark. 719, 401 S.W. 2d 732 (1966), the introduction of the unrecorded plat constituted reversible error. With this we are unable to agree, for the record fails to show how or by what means or even innuendo the plat was used to measure the property owners’ damages. Since appellant’s own witnesses stated that the highest and best nse of the land included in the plat was for residential subdivision, and no attempt was made to evaluate damages on a per lot basis instead of a raw acreage basis, we can find no prejudice in the admission of the unrecorded plat and consequently hold the admission thereof to be harmless error.

II.

On the motion for continuance and the motion to amend the pleadings to conform to the proof, the record shows that the trial began on March 16, 1967, and that the testimony was concluded at 4:25 p. m., whereupon the court excused the jury until the next morning at 9:30. When court reconvened the next dav, appellant made a motion for continuance to give it time to locate its franchise agreement with the city of Paragould, and a motion to amend the pleadings to conform to the proof, whereby appellant would release from the eminent domain action a portion of tbe property on which the transmission line had not been constructed. Of course both motions were addressed to the sound discretion of the trial court, Norton & Wheeler Stave Co. v. Wright, 194 Ark. 115. 106 S.W. 2d 178 (1937), and Ark. Stat. Ann § 27-1160 (Repl. 1962), and we are unable to find any abuse of such discretion here.

III.

Appellant here contends that there is no substantial or proper evidence to sustain the damages assessed to the before and after value of the 39.29-acre tract. In particular, it stresses that witness Jarrett took 5 per cent from the before value to arrive at the after value. In this connection there is substantial evidence from, which the jury could find that the access to the property had been impaired, and on the whole record we are unable to say that there was no reasonable basis for the witness’s opinion as to the damages he assigned to the tract. The record shows no evidence of comparable sales with a similar impaired access.

IY.

The objection here is to the court’s instruction to the jury that the landowners were entitled to recover for the full market value of the 2.5 acres of land within the easement and in addition to recover damages, if any, to the remaining lands caused by the taking. In Arkansas Louisiana Gas Co. v. Burkley, 242 Ark. 662, 416. S. W. 2d 263 (1967), we pointed out that a corporation authorized to condemn land under our Constitution (article 12, § 9) is not entitled to deduct benefits to the landowner from the award to be given for the taking. Consequently, we hold that, when a private corporation takes property through the process of eminent domain, damages are properly awarded on the basis of the full fair market value for the easement taken, plus any damage occurring to the remainder of the property. Therefore it follows that the instruction of the court was proper.

V.

It is contended that the jury’s award jwas excessive. However, there is little discrepancy between the market values per acre for the 2.5-acre easement testified to by appellant’s witnesses and those of the landowners. Actually, this argument gets hack to the issue of whether or not the jog in the road constituted an impairment of the access, hut as we have already indicated, this was an issue for the jury and we are unwilling to say that the verdict is excessive.

Affirmed.

Harris, C. J., and BrowN, J., dissent.

FoglemaN, J., disqualified.

Carleton Harris, Chief Justice,

dissenting. I think the court erred in permitting the unrecorded plat to be offered as evidence; in my opinion, it was not at all admissible, and I think that the jury, in its deliberations, undoubtedly could not belp but consider tbis plat. In Arkansas Louisiana Gas Company v. Lawrence, 239 Ark. 365, 389 S. W. 2d 431, tbis court reversed an award to tbe appellee, because of tbe introduction of an unau-tbenticated private plat. No subdivision existed, and we quoted from 32 C. J. S., Evidence, § 730, p. 1048, as follows :

‘' Generally, a map . . . must be accurate in order to warrant its admission, that is to say, the paper must correctly represent the situation as it existed at tbe time under consideration; and a diagram showing a hypothetical condition and not shown to represent any condition actually existing, . . . is not admissible.”

It is argued by appellees that, because a subdivision plat had been prepared in 1963, and a portion of the area had been deeded by metes and bounds to another party, the subdivision map was admissible, even though not recorded.

The evidence reflects that, at the time of trial, a good part of appellees’.lands was planted in wheat, and it seems to me that the introduction of the unrecorded subdivision plat had the effect of presenting to the jury a vision of what could be done 'with the land in the future. In other words, I think the introduction of the plat, for whatever reason it may have been introduced, allowed to jury to speculate.

In Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S. W. 2d 86, this court, quoting from Nichols, Eminent Domain, Third Edition, Chapter 12, Section 3142 (1), stated:

“It is well settled that if land is so situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush or boulders. The measure of compensation is not (emphasis supplied) however, the aggregate of the prices of the lots into which the tract could best be divided, since the expense of cleaning off and improving the land, laying out streets, dividing it into lots', advertising and selling the same, and bolding it and paying taxes and interest until all the lots are disposed of cannot be ignored and it is too uncertain and conjectural to be computed.”

Further, quoting from the Louisiana case of Louisiana Railway and Navigation Company v. Baton Rouge Brickyard, 67 So. 922, we added:

"At the time of the institution of this suit the tract in question had not been subdivided,, and the question before the jury was as to the market value as a whole, considering all the uses to which it was adapted. The value of the tract for town lot purposes was one of the factors to be considered, hut what the owner or purchaser might realize by a subsequent subdivision of the property and sale of lots partakes too much of the character of speculation to serve as a basis of valuation at the date of the institution of the present suit.”

Again, in the same opinion, quoting from City of Philadelphia v. United States, 53 Fed. Supp. 492, we held:

‘ ‘ Equally improper is evidence showing how many building lots the tract under consideration could be divided into, and what such lots would be worth separately. It is proper to inquire what the tract is worth, having-in view the purposes for which it is best adapted; but it is the tract, and not the ..lots into which it might be divided, that is to be valued.”

Less than two years ago, in the case of Arkansas State Highway Commission v. Parks, 240 Ark. 719, 401 S. W. 2d 732, we likewise stated:

"We think the court erred in allowing the plat to be introduced. Wheñ the land being condemned has not itself been dedicated as a subdivision it is reversible error for the trial court to allow the property owners to exhibit to the jury a plat showing how the land could be laid off in lots and blocks. [Citing case.] Such a projected plat is misleading to the jury in that it does not take into account the various expenses for streets, utilities, and similar improvements that could not be explained to the jury without bringing a host of collateral issues into the case.”

The majority say, “The unrecorded plat introduced into evidence is totally irrelevant to any of the issues involved.” I agree with this statement, which is all the more reason why I feel that the case should be reversed, i. e., it had no proper place in the litigation, and could only have served to prejudice the rights of appellant.

I respectfully dissent.

I am authorized to state that Brown, J., joins in this dissent.


author: Carleton Harris, Chief Justice.

text:
    Rufus HODGES v. Mrs. Betty Jo HODGES et al
    5-4369
    424 S. W. 2d 174
    Opinion delivered February 19, 1968

      N. M. Norton, for appellant.

      Mcmn & McCulloch, for appellee.
   Carleton Harris, Chief Justice.

This litigation relates to a suit brought by Rufus Hodges, appellant, seeking specific performance of a contract, wherein Edd Hodges had allegedly agreed to leave appellant certain property by will. Edd Hodges died on April 21, 1964, a resident of St. Francis County, leaving a widow, but no descendants. The widow was appointed executrix, but evidently declined to serve, and the First National Bank of Eastern Arkansas was appointed administrator with the will annexed. In January, 1965, Rufus Hodges instituted a suit in the St. Francis Chancery Court, in which he alleged, inter alia, that, upon retiring from naval service, he had returned to Forrest City at the behest of Edd Hodges (according to appellant, a distant relative). Hodges, it was alleged, in consideration of appellant’s working on his farm, had agreed to make a will, leaving to appellant farms known as the Noah Hodges place, the Powell place, and the George Pngli place, together with one-third of Edd’s stock in the Yocona gin. Edd Hodges did devise to Rufus the Maggie Powell place, consisting of 160 acres, but the other properties, together with all stock in the Yocona gin, were left to the widow, Betty Jo Hodges. Mrs. Hodges answered, denying the allegations, and subsequently the bank intervened as to the personal property. On trial, the court held that Rufus Hodges had not established the existence of the alleged contract by evidence that was clear, satisfactory, and convincing, and the complaint was dismissed. From the decree so entered, appellant brings this appeal. It is asserted that the court erred in ruling that evidence of the contract between the two Hodgeses fell short of the standard of proof required.

Appellant testified that, in 1953, while he was serving with the Navy, he had some conversations with Edd, who suggested that when it was time for Rufus to get out of the Navy, he should contact Edd; in compliance with this request, Rufus called thirty days before his discharge date, and told Edd that he had an opportunity for a Civil Service job, but the latter told him to come on back to St. Francis County: “We can work out something.” Upon discharge, on February 1, 1957, appellant returned to Forrest City with his wife and children, arriving on February 4. The witness said that E'dd wanted him to take over some of his farming operations, but told him that the house he was to live in was then being occupied by a man named Kelly, and that as soon as he could get Kelly out of the house, the Rufus Hodges family could move in.

There was no agreement as to whether appellant would be an employee, a renter, a partner, or what particular status Rufus would occupy, but Edd said that tbey would get it “worked out. ’’ According to tbe witness, the owner stated that it would be about six months before the house would be ready for Rufus, and appellant’s duties were due to start when he moved into the house. Thereafter, Rufus went to work for the Forrest City Machine Works, where he was employed for six months, and he then was employed by Tale and Towne for fourteen months. Rufus finally moved to the Hodges farm on October 4, 1958.

Appellant testified that there had never been any definite arrangements between the parties until August, 1958, when Edd stated that he would start Rufus at a salary of $250.00 per month, furnish a truck and expenses, and fix up the house in a manner that would be satisfactory to Rufus. Appellant said that he paid $1,-100.00 of the house repair expense, moved in on the October date, and was told that he would go on the payroll around March 1. In the meantime, appellant resumed his employment at Yale and Towne until that time. At the end of his first month’s employment with Edd, Rufus was given a check for $150.00, instead of $250.00, and he talked to Edd about it. The latter, said appellant, advised that if Rufus wanted to work, he (Edd) would “make it up,” and then stated he would leave to Rufus the Noah Hodges place, which contained about 1,000 acres. Rufus was to mainly work with the cattle.

According to appellant, this arrangement lasted for about two years, and he then entered into a lease agreement. This agreement reflects that Rufus had leased 532 acres of farm land from Edd for a period of three years, commencing January 1, 1959; however, instead of three years, the lease recites that it shall last until 1966, the figure, “66,” having obviously been altered from some other date. The instrument reveals that Edd was to receive one-fourth of the crop as rent; further, there appears in handwriting, in the body of the lease, these words:

“Rufus Hodges has two Ford Tractors, one 900, one 800, and one J. D. 60 with planter, disc, breaking plow, and two trailers. When his half interest in 60 head of cattle sold, Half will go for tractors. Will take care of them in full. E. H.”

Rufus had testified that he “bought into the herd” of cattle, paying $1,000.00 for his interest in same. He stated that he was not given a receipt; that Edd said, “You don’t need to have a receipt. You got my word. Don’t I always stand behind my word?” He also testified that he owned some of the farm machinery; further, that he never received any settlement whatever on the 1959 crop, which was a good one; when asking for a settlement from Edd, he would always be put off. Likewise, he stated that he never received any settlement for the 1960 crop, but was told by Edd that that money would apply on Rufus’ purchase of equipment. Appellant contended that he had already paid for the equipment. Edd then stated, “You’re going to get that place down there. You got where you worry too much about stuff lately. Let me worry.” The “place,” according to appellant, was the Noah Hodges place, containing 732 acres of land, which also included two other farms, known as the Emmett Powell place and Fisher place: “He told me, ‘You stay on until the end of this thing and you’re going to get this place right here.’ 1 said, ‘Can I depend on that?’ He said, ‘You got my word.’ ”

Rufus stated that he did not receive any settlement for the 1961 and 1962 crops, which also were being farmed on the share basis, but Edd would always refer to the fact that he was leaving the place to Rufus. The witness stated that in 1963 he was told by Edd that, if appellant would work at the gin, Edd would give him one-third of the gin stock. The testimony was very lengthy, and other matters will be subsequently mentioned ; however, the above testimony is sufficient to explain the basis of the contention by appellant that there was a contract between him and Edd to the effect that the latter would leave the several farms and one-third of the stock to him.

Appellant then offered several witnesses on his behalf. Witness Barney Carlton and C. D. Simmons added nothing to the proof, the former testifying that Rufus was injured while working at Yale and Towne, and the latter stating that he had never heard Edd Hodges say anything about what he intended to do with the Noah Hodges place. Ralph Dye testified that Edd told him that Rufus was a hard worker, and that he was going to see that Rufus was taken care of; that Rufus would not lose anything by repairs being made on the house, stating to Mrs. Rufus Hodges, “When I’m gone you can do what you want with it. ’ ’ He said he did not recall ever hearing Edd say that he intended to leave the Noah Hodges place to Rufus. Richard Hodges, a brother of appellant, stated that Edd told him in 1957, “Maybe some day Rufus will own this place,” and several times said, “Well, we’ll clear this land. Maybe Rufus "will still wind up with it. ’ ’ Henry Birmingham testified that Edd told him that he had willed Rufus the George Pugh place and the Noah-Hodges place. Rob Simmons, a former employee of Edd Hodges, testified that about two years before Edd died, he told the witness that he would leave the place to Rufus.

Mrs. Marie Swan, secretary to present counsel for appellant, testified that, in the office, there was a retired file, called “Hodges will.” She stated that in this file there was a draft of a will which had been prepared by Mr. Norton, and memoranda relating to changes to be made in this will. These memoranda were dated January 17, 1959, January 24, 1959, February 12, 1959, and March 7, 1959. The memoranda were then offered in evidence, same reflecting that Rufus Hodges was to be left the Noah Hodges place (except the northeast quarter of the northwest quarter of Section 30), the Emmett Powell place, the Fisher place, and one-third of Edd’s stock in the Yocona gin. There was then introduced a copy of a will dated March 7, 1959, under the terms of which Rufus Hodges was devised the properties mentioned in the memoranda, and also one-third of the gin stock. The copy indicates that the will was witnessed by three persons, and a note reflects that the original had been taken by Edd Hodges. This testimony was objected to by defendants, and the court, though expressing doubt whether the evidence was admissible in view of the attorney-client relationship, admitted same.

Appellee argues that the testimony of Rufus Hodges was not admissible, since it violates the “dead man’s statute,” (‘Section 2 of Schedule, Arkansas Constitution) ; however, we agree with appellant that the First National Bank of Eastern Arkansas, administrator, was not a necessary party, and we, accordingly, hold the testimony of Rufus to be admissible. Likewise, as mentioned, the testimony of Mrs. Marie Swan was objected to, but there is no need in discussing whether this evidence was admissible, for when we consider the testimony of appellant, the evidence offered by his witnesses, including Mrs. Swan, and the exhibits offered into evidence, i. all of his evidence, we still are unable to find that Rufus Hodges established the oral agreement (s), upon which he relies, by clear, cogent and decisive evidence. In Taylor v. Milam, 219 Ark. 592, 243 S. W. 2d 644, a suit filed to enforce specific performance of an oral contract to devise land, it being alleged that Milam had made such an agreement in consideration of appellant’s taking care of him, this court said :

“The rule has been many times announced by this court that, in order to establish title to and ownership of land on an oral contract, the burden is on the person seeking to establish the contract to show execution thereof by a higher degree of proof than a mere preponderance of the testimony. To establish such a contract the evidence of its execution must be clear, cogent and decisive. It must be so strong as to be substantially beyond a reasonable doubt. Tucker v. Peacock, 216 Ark. 598, 227 S. W. 2d 929.”

Numerous other Arkansas cases are to the same effect. Without any hesitancy whatsoever, we very quickly hold that appellant’s proof in the instant litigation does not comply with that standard.

It is really difficult to understand exactly what appellant asserts as the precise contract. As to the real estate, there are several versions of what Edd purportedly promised to convey. The complaint alleges that he promised to convey the Noah Hodges place, consisting of 407.18 acres, the Maggie Powell place containing 160 acres, and the George Pugh place, containing 169.7 acres. However, on trial, Rufus testified that the Noah Hodges place contained 732 acres, and consisted of the Noah Hodges place proper, the Emmett Powell place (167.79 acres), and the Fisher place (86 acres). He stated that the George Pugh place was the 160 acres north of the Noah Hodges place. At another time, appellant testified that Edd Hodges, while standing at the corner where John Devasier lives, promised to leave him “everything north and west from this corner.” The location of the corner was later established by other testimony, and according to appellee’s evidence, would include the following lands: Noah Hodges place (less 40 acres), Fisher place, Emmett Powell place, George Pugh place, and Maggie Powell place. Appellant, in his reply brief, admits that it is not entirely clear from the evidence as to what tracts of land constituted the “Noah Hodges place,” and it is also admitted that the copy of will offered in evidence did not entirely corroborate appellant’s testimony. However, it is insisted that the evidence as to the agreement to devise the Noah Hodges place proper, is entirely clear and convincing. Here again, we do not agree.

Rufus testified that *he returned to Forrest City at the urging of Edd for the purpose of entering into a working agreement; yet, it seems strange that Rufus, upon returning to that city (a number of his and his wife’s relatives living in the vicinity) purchased a farm (which was later traded for equity in a house), and worked for other concerns for over a year and a half before moving to the Hodges farm. He testified that his compensation was cut from $250.00 to $150.00 the very first month, and subsequently stated that he never received any part of his share of the crop money for 1959, 1960, 1961 and 1962. It is not reasonable for one to fore-go payriient for several years’ work purely on the basis of a promise from someone, who had (according to appellant) already violated earlier agreements. The same is true with reference to the farm machinery. Rufus testified that he had paid for it, but that Edd contended that he had not. This, in itself, would normally have occasioned litigation. Appellant, in large measure, depends upon the handwritten provision in the lease to establish his interest in the farm machinery and cattle. One gains the impression from the evidence, that the principal reason for entering into the lease was to enable Rufus to acquire benefits paid by the government under the GI farm training program. To qualify for this program, the veteran had to either rent, or uwn, a farm, and he also had to make arrangements to obtain equipment. The program lasted for three years, during which time the veteran would attend school two hours per week, and Rufus was eligible for benefits commencing at $130.00 per month, the amount being successively smaller each month until the final payment of $44.29 was paid for the last month (total of thirty-six months).

Evidence was offered by the decedent’s bookkeeper, Banks Wilkinson, that he could find no entries showing Rufus Hodges as a tenant; that Rufus never had a rent account; that the cattle sale by Edd Hodges in 1958 did not involve Rufus, and the bookkeeper stated that he had never seen a settlement sheet for appellant. Wilkinson also stated that the handwriting did not appear to he that of Edd Hodges; he testified that he did not recall Edd’s ever using the initials, “E. H.”

Rufus Hodges stated that he borrowed $1,000.00 from his brother-in-law, who lived in the state of Washington, for the purpose of purchasing the interest in the cattle owned by Edd Hodges. The loan was corroborated, but not the purpose of it. None of the witnesses offered by appellant testified relative to any claim of ownership by Rufus of the cattle, tractors, farm equipment, or gin stock.

Not a single witness corroborates the alleged fact that Edd had said that he was leaving, or would leave, any property to Rufus, because of an agreement entered into between them. Henry Birmingham testified that Edd had told him that he had left to Rufus the George Pugh place and Noah Hodges place, and Rob Simmons testified that Edd had told him that he would leave the Noah Hodges place to Rufus. The testimony of the other witnesses offered by appellant does not even come close to going as far as these two. Of course, there is quite a distinction between property that is devised as a gift —and property devised by reason of contract. Actually, Edd did devise to appellant a 160-acre farm (Maggie Powell place), which, according to appellant’s own testimony, was rather valuable property. When asked what he would “take for it,” Rufus replied, “$100-thousand. That is what it would take to get it.”

As pointed out in Taylor v. Milam, supra, the burden on the person seeking to establish title to land on an oral contract is one that requires a higher degree of proof than a mere preponderance of the evidence.

We are unable to find that appellant has established any oral contract for the devise of any farm by evidence that is clear, cogent, and decisive, i. e., evidence so strong as to establish his contention substantially beyond a reasonable doubt.

Affirmed.

       Actually,the bank filed its final settlement, and was discharged as administrator on May 18, 1967.


author: George Rose Smith, Justice.

text:
    D. B. ROSS v. STATE of Arkansas
    5308
    424 S. W. 2d 168
    Opinion delivered February 19, 1968

      Robert W. Faulkner, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Ross was charged by information with the crime of false pretenses, in that he borrowed $2,000 from an Arkadelphia bank for the purpose of buying 29 head of cattle, upon which the bank was to have a lien, but he failed to use the money as he had promised to do. He defended the charge upon the ground that the offense in question must be based upon a misrepresentation of an existing or past fact rather than upon* a promise to be performed in the future. The trial court, rejecting that defense, instructed the jury that the misrepresentation can relate to future conduct if it is accompanied by a present intention not to perform the promise. This appeal is from a verdict and judgment finding Ross guilty and sentencing him to imprisonment for one year.

The court lapsed into error, perhaps being misled by the rule that now prevails in civil cases. Victor Broadcasting Co. v. Mahur in, 236 Ark. 196, 365 S. W. 2d 265 (1963). On the criminal side, however, we still follow the English role that was adopted in Arkansas more than a century ago: “This, as the authorities show, was clearly not a false pretence within the statute, because, to be such, it must have been of some existing fact and not a pretence that he would do an act which he did not mean to do.” McKenzie v. State, 11 Ark. 594 (1851). The California court’s departure from the great weight of authority on the point is of interest, but we do not find its reasoning persuasive. See People v. Ashley, 42 Cal. 2d 246, 267 P. 2d 271 (1954).

The judgment is reversed, and, since the case has been fully developed, the charge is dismissed.


text:
    Richard Vernon SWENSON and C. B. MONROE v. Eugene G. HAMPTON
    5-4462
    424 S. W. 2d 165
    Opinion delivered February 19, 1968

      Carrold E. Bay and House, Holmes & Jewell, for appellants.

      Daggett & Daggett, for appellee.
   George Rose Smith, Justice.

This is an action for personal injuries and property damage brought by the appellee, a retired army colonel. At about midday on January 14, 1966, on a highway in Crittenden county, Colonel Hampton met a tractor-trailer rig being driven by the defendant Swenson for .his employer, the defendant Monroe. As the two vehicles approached each other a large inflated spare tire fell from the trailer and struck the plaintiff’s radiator with great force, inflicting the injuries complained of. In the court below the defendants filed a general denial but offered no proof, so that the principal issue for the jury was that of damages. This appeal is from a $7,800 verdict and judgment for the plaintiff. We need discuss only two of the points for reversal.

First, it is insisted that the court erred in allowing Dr. Gray, for thirteen years a general practitioner, to testify that in his opinion the accident could have caused the neck and shoulder pains that Hampton was still complaining of at the time of trial. Dr. Gray had testified that when his patient’s shoulder pain continued beyond a normal healing period lie referred the patient to a nerve specialist. “I felt that he needed some special examination, some neurological examination that I don’t make.” The appellants rely upon the sentence just quoted as a basis for their insistence that Dr. Gray was not qualified to testify that the accident could have caused the pains.

We think the court was right in admitting Dr. Gray’s testimony. A general practitioner often refers his patients to specialists, as for the removal of an appendix or for the treatment of a skin disease. That does not mean, however, that the G. P. is not qualified to discuss his patients’ ailments. To the contrary, as we held in Crocker’s Heirs v. Crocker’s Heirs, 156 Ark. 309, 246 S. W. 6 (1922), his expert opinion is admissible, subject to the jury’s determination of its proper weight.

Secondly, the appellants argue that there was no substantial evidence to justify the court in submitting to the jury, as elements of damage, the permanency of the plaintiff’s injuries and his loss of earnings. With respect to permanency, Dr. Gray’s statement that Hampton had suffered a 10 percent disability to the body as a whole sufficiently supported the instruction.

The serious question is whether the plaintiff adduced adequate proof of earnings lost between the date of the accident and the date of the trial. He made no showing of his earnings in the military service, his earnings in any civilian pursuit, or his training or fitness for any particular occupation. No other witness, such as an employment counselor, was called to testify. See Woods, Earnings and Earning Capacity as Elements of [Damage] In Personal Injury Litigation, 18 Ark. L. Rev. 304, 318 (1965).

We have only Colonel Hampton’s testimony on the point. The day of the accident was also his first day as an employee of a collection agency, on a commission basis. He had no record of past earnings in that job and made no effort to show what others' were earning in a similar occupation. On direct examination he agreed with his attorney’s statement that he was “on commission” with a $400 monthly drawing account. Most of his pertinent testimony was educed on cross examination, as follows:

Q. You were to draw four hundred dollars a month in commissions?
A. Yes, sir.
Q. How was that to be drawn?
A. I had a certain schedule. They said they would pay me so much draw. I had so much draw, and if my commissions exceeded two hundred and fifty dollars I would have so much put in what they might call a sinking fund. Then if my commissions didn’t equal as much as one hundred and twenty-five dollars a week I could draw out of this fund, hut at the end it was paid on a percentage basis, rotation basis. I might agree with you that I wouldn’t push you or I would give you time to pay the account. You would give me some settlement or a note or something, and that money would go in to the company. It all went in to them. That was the agreement when I signed up. It was contingent on the way I would draw my commission. If I worked I made it, and if I didn’t I didn’t make it.
Q. You had to pay your own expenses?
A. No, sir, unless I earned less than my commissions.

Absent proof of commissions actually earned in the past, Hampton’s burden was that of producing sufficient evidence to enable the jury to determine what he would have earned had he not been hurt. Such a reconstruction of what would have happened is similar to a plaintiff’s effort to prove the value of earnings to be lost in the future. There the rule is that the loss must be shown with reasonable certainty. AMI 2206; Check v. Meredith, 243 Ark. 498, 420 S. W. 2d 866 (1967); see also McCord v. Bailey, 195 Ark. 862, 114 S. W. 2d 840 (1938). A similar standard is fairly applicable here.

We are forced to conclude that the plaintiff failed to sustain his burden of proof. Hampton’s testimony about the sinking fund and about his minimum weekly quota was really of no assistance to the jury. The only facts known to the jury were that the colonel was employed as a collection agent, on a commission, with a $400 monthly drawing account. Presumably at least part of the drawing account was intended to be used for the payment of expenses, which were not charged to Hampton “unless I earned less than my commissions” (whatever that statement may be taken to mean). There is no definite indication of what Hampton’s expenses would have been. He merely said, in describing his disability, that the job required “considerable driving.” That he was hurt in Crittenden county, at some distance from his home in Marianna, suggests that his assigned territory was extensive.'

Not only was the proof of expenses vague. The jury was given no indication of the total collections that Hampton might expect to make for his employer or of what his commission would be. Upon the record as a whole the jury had no basis, except guesswork, for estimating Hampton’s lost earnings. Such a verdict cannot be allowed to stand.

When the only error relates to a separable item of damages, a new trial can sometimes be avoided by the entry of a remittitur. St. Louis, I. M. & S. Ry. v. Bird, 106 Ark. 177, 153 S. W. 104 (1913). Such a remittitur is fixed by the highest estimate of the element of damage affected by the error. Surridge v. Ellis, 117 Ark. 223, 174 S. W. 537 (1915). Here that maximum would be earnings of $400 a month for thirteen and three-quarter months, or a total of $5,500. If by any chance the appellee wishes to remit that amount within seventeen days, the rest of the judgment will be affirmed. Otherwise the canse must he remanded for a new trial.

Harris, C. J., AND JoNes, J., dissent.


author: Paul Ward, Justice. John A. Fogleman, Justice,

text:
    Callie L. WEBB v. Tom PEARSON Jr. et al
    5-4484
    424 S. W. 2d 145
    Opinion delivered February 19, 1968

      Lewis D. J ones and J ohn E. Butt, for appellant.

      Walter B. Cox, Putnam, Davis & Bassett and Charles W. Atkinson, for appellees.
   Paul Ward, Justice.

Callie L. Webb, appellant, was injured when she stepped on a grease spot on a board walkway. The walkway ran along the west side of, and was attached to, a building owned by Sonneman Trusts and in which Tom Pearson Jr. and Guy Pinkerton (also lessees) operate “Razorback Bowling Lanes” — all ap-pellees.

Appellant filed a complaint alleging, in essence, that: she slipped on a patch of grease, foreign to a public sidewalk, and fell, causing severe injuries; that defendants, being in complete control of the sidewalk, are guilty of negligence, viz, (a) in allowing the grease to be on the public sidewalk, (b) allowing the grease to remain on the sidewalk more than a reasonable period of time, and (c) allowing this dangerous situation to be created amounts to “wilful, wanton and malicious conduct toward the general public, and more particularly toward the plaintiff”. The prayer was for $28,000.-

To the above complaint appellees entered a general denial, and then filed a Motion for a Summary Judgment.

The matter was presented to the trial judge on affidavits and, in granting the same, he made findings as follows: (1) Appellant was not a trespasser or an invitee, but was a mere licensee; (2) The walkway was on the private property of Sonneman Trusts who owed appellant no duty other than to be free of wilful and wanton misconduct; (3) Since the Razorback Bowling Lanes was only a lessee it owed appellant no duty other than to exercise due care not to do anything to cause her injury after her presence on the premises was discovered. The trial court then held there was no material issue of fact to be resolved, and, by Order, dismissed the complaint. From such Order appellant now prosecutes this appeal.

A review of the testimony, as applied to previous decisions of this Court, convinces us that the findings and the decisions of the trial court must be affirmed.

The essence of the pertinent testimony of appellant is: She asked Mr. Sonneman about a month before the accident for permission to park in the rear of his building, and it was orally granted, and that she paid him nothing; the public has been using the sidewalk for years. The undisputed testimony .of Sonneman is: The walkway in question is a part of his building, located entirely on private property and is not now and never has been a public walkway.

It is clear, from the undisputed portion of the record,- that appellant, when injured, was on the private property of Sonneman Trusts and, this being true, she was a licensee. In the case of Knight v. Farmers’ & Merchants’ Gin Company, 159 Ark. 423, 252 S. W. 30, the rule is stated in these words:

“In all of our decisions on the subject — and there are many — we have adhered to the rule that one who goes upon the premises of another as a mere licensee is in the same attitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes the license with its concomitant perils, and that the owner owes him no duty of protection except to do no act to cause his injury after his presence there is discovered.”

The above quotation was copied and approved in Garrett v. Arkansas Power & Light Company, 218 Ark. 575 (p. 586), 237 S. W. 2d 895.

In this case there is no evidence nor even any contention that appellant was injured because of any wilful or wanton negligence on the part of either of the appellees. In Cato v. St. Louis Southwestern Railway Company, 190 Ark. 231 (p. 233), 79 S. W. 2d 62, there appears the following pertinent statement:

“'Whether he be called a trespasser or licensee, the same rule of law applies, and that is that the only duty owing to him was not to wilfully or wantonly injure him and to exercise ordinary care under the circumstances to avoid injury to him after discovering his peril.”

There is, of course, no contention here by appellant that either, appellee saw her on the walkway before she was injured.

Affirmed.

F0GLEMAN, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in tiie result reached by the-majority in this case and in the rules of law applied by the majority on the question of appellees ’ liability if appellant’s injury were suffered on their property. I do not agree, on the record before us, that it is undisputed fact that appellant, when injured, was on the private property of Sonneman. Assuming that appellant was on public property at the time of her injury, however, I find no allegation or assertion by appellant that would make appellees liable to her. Appellant alleged that appellees were in complete control of the sidewalk and were negligent in allowing a deposit of grease and foreign materials to be present on the walk and to remain there, without warning, for longer than a reasonable period of time. She asserted that this was a breach of reasonable care in keeping and maintaining a clear and unobstructed sidewalk for the general travelling public. In opposing the motion for summary judgment, appellant’s affidavit made no mention of any affirmative act on the part of appellees that caused the condition. Nor is there any statement in any pleading, affidavit or deposition that appellees owned the barrels, placed them on the sidewalk, or knew of the condition which existed. Nor is it stated that the condition had existed for a sufficient period of time to justify an inference that appellees knew of the presence of the grease and foreign matter. As a matter of fact, appellant testified that she did not see any foreign Substance on the ’ sidewalk before she fell. She stated that after she fell, she discovered a greasy liquid on the sidewalk which had seeped from the bottom of some trash barrels on the walk.

A summary judgment has been affirmed by this court in a strikingly similar case. Epps v. Remmel, 237 Ark. 391, 373 S. W. 2d 141. In addition to allegations virtually parallel to those of appellant here, the plaintiff-appellant there relied on an allegation that a city ordinance required tlie property owner to maintain and repair the sidewalk. "While this court recognized that there could he liability if the defendant-appellee had affirmatively done something which caused a dangerous or hazardous condition, the court found that there was no such issue in the case. Furthermore, it was held that even a violation of the ordinance did not subject the owner to liability for bodily harm to one using the sidewalk. Since no affirmative act on the part of appellees is suggested by any pleading, affidavit or deposition in the record, I would affirm this judgment on the authority of the above case.


author: Lyle Brown, Justice.

text:
    SUMMERS APPLIANCE CO. et al v. GEORGE’S GAS COMPANY, INC. et al
    5-4464
    424 S. W. 2d 171
    Opinion delivered February 19, 1968

      Warren & Bullion, for appellants.

      Courtney Crouch, Boyce Love and Boy Finch, for appellees.
   Lyle Brown, Justice.

Summers Appliance Co. and the six other appellants are holders of Class 1 permits issued by the Arkansas Liquefied Petroleum Gas Board. They are LP gas distributors in an area comprising six counties in Northwest Arkansas. George’s Gas Co., Inc., was granted a Class 1 permit by the LP Gas Board. George proposes to operate in the same general area. The Board was affirmed on appeal to the circuit court. Appellants contend that the LP Gas Act requires a determination of public convenience and necessity as a prerequisite to the issuance of the permit and that no such showing was made.

The business of distributing butane and propane gas (liquefied petroleum substances) is substantial and statewide in Arkansas. Because of the dangers inherent in the handling of those substances we have had a safety feature law since 1939. Our present law is Act 31 of 1965, Ark. Stat. Ann. §§ 53-701-34 (Supp. 1967).

The requirements for a Class 1 permit set up detailed and rigid specifications covering every phase of handling, storage, and distribution. A certificate of competency must be renewed annually. In addition to the predominant safety features of the act there is a provision which was inserted in 1959 and carried over into Act 31. It is significant to this litigation:

§ 53-723 (A) (7) . . . . “In determining whether to grant a Class 1 Permit, the Board shall take into consideration the convenience and necessity of the public.”

The appellants urge this court to interpret the quoted language “to require the same proof of public convenience and necessity for a permit to sell and distribute butane and propane gas as is required to sell natural gas.” That necessitates a comparison of certain phases of the two laws, namely, the Public Utilities Act under which natural gas companies operate, and the Act under which hutane and propane distributors are licensed.

1. Laws Regulating Natural Gas Companies. The Public Service Commission is vested with the power, jurisdiction, and duty to “supervise and regulate every public utility in this Act defined.” Ark. Stat. Ann. § 73-202 (Eepl. 1957). The antecedent section (definitions) refers to public utilities as including those who furnish gas to the public for compensation. However, from a study of the entire chapter, the amendments thereto, and the rules and regulations of the PSC, it is clear that those laws and regulations presently govern natural gas. It is mandatory upon those companies to make a showing of public convenience and necessity and obtain a certificate from the PSC evidencing the public need. Ark. Stat. Ann. § 73-240 (Supp. 1967). That has been the law at least since Act 324 of 1935. When it is proposed to operate a new public utility in an area already served, the applicant must show either “(a) that the present service is inadequate; or (b) that additional service would benefit the general public; or (c) that the existing [facility] has been given an opportunity to furnish additional service as may be required.” Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907 (1945).

2. The Law Regulating the LP Gas Business. Act 31, heretofore cited, contains all the statutory law pertaining to LP gas and deals exclusively with that subject. It deals almost entirely with two subjects, namely, the financial stability and technical competency. Suffice it to say that we are dealing with one of the most comprehensive codes of law and regulations in force in this State. Those provisions governing the granting of a Class 1 permit will later be discussed.

The Legislature has not declared the LP gas business to be a public utility. It has not imposed on LP gas distributors the mandatory duty to obtain a certificate of public convenience and necessity. It has merely directed the LP Gas Board to consider public convenience and necessity. That phrase is not so rigid in meaning as to require that it be interpreted to mean the same thing in every legislative act in which it is used. In the Public Utilities Act it is used with reference to those utilities— natural gas companies, public carriers, and electric power companies — operations devoted to public use to the extent that their use is thereby granted to the public. So much so that matters such as their rates, their territories, and methods of detailed operation must be supervised by the sovereign. In turn, those utilities enjoy exclusive privileges which the Legislature has declared, in the public interest, such as long-term franchises, the right of eminent domain, and security of their enormous investment from unnecessary competition.

The legislative directive that the LP Gas Board consider public convenience and necessity was not intended to vest in the Board the power to regulate competition in a field of private endeavor. There are many commodities just as inherently dangerous as butane and propane. We need only point to dynamite, drugs, and gasoline as some examples. Stringent regulations governing the manufacture and distribution of those items are required and justified under the police power. When it is considered necessary for the public welfare to remove those pursuits from the field of free enterprise, it should certainly be spelled out and justified. The mere insertion of one sentence, in a code .devoted entirely to safety and competence, directing the administrative board to “consider public convenience and necessity” is not sufficient.

Having determined that we are not dealing with a declared public utility, we turn to the application of the term “public convenience and necessity” as it is used in the LP Act. Public utilities do not have a monopoly on the use of the phrase. All authorities recognize the words “convenience” and “necessity” as being relative and elastic, rather than absolute. We conclude that § 53-723 (A) (7) directs the Gas Board to consider the public welfare within the scope of its authority under Act 31 and the approved regulations. Here are some of the many “musts” to be met by a Class 1 applicant who desires to enter all phases of the liquefied petroleum gas business:

Furnish evidence of his financial condition, character, and ability to engage in the business; file a certificate of intended insurance which covers six fields of possible liability; all his employees in charge of operations, servicemen, installation men, and truck drivers, to pass an examination and receive a certificate' of competency; file a current financial statement prepared by a public accountant; provide a bulk storage capacity of not less than 15,000 water gallons, the location to he approved by the Board in advance; provide all necessary equipment satisfactory to the Board; provide approved unloading facilities; furnish a storage container of not less than 1,000 gallons; submit an inventory of all trucks and that equipment must be inspected and approved; provide service station facilities acceptable to the Board; provide blueprints for all gas containers for the Board’s examination and approval; and the products he proposes to handle to be approved by the Board.

The discharge of the enumerated responsibilities, as well as the others pertaining to issuing a Class 1 per•mit, are not purely ministerial acts. Most of them require the exercise of considerable judgment and discretion. In making those judgments the Legislature directed the Board to consider the public welfare in the fields of public safety and the stability of the applicant.

We have not arbitrarily substituted the phrase “public welfare” for the term “public convenience and necessity.” The latter phrase has been described by this court as “what will conduce to the general public welfare.” Arkansas Elec. Coop. v. Ark-Mo Power Co., 221 Ark. 638, 255 S. W. 2d 674 (1953). The safety of the public and the assurance that the applicant can render competent sérvice are by Act 31 made primary; the right of the individual to possess a permit is declared sec-' ondary.

The Board certified toAlie circuit court that it considered the matter of public convenience and necessity and that its determination on that point, along with all other matters set forth in the transcript, favored the granting of George’s permit. From the record we conclude that the Board applied the same construction to the convenience and necessity clause as outlined in this opinion. That assumption is based on the absence of any testimony proffered by George’s in line with the public utility rule of convenience and necessity.

Since we do not apply the construction urged by appellants, we do not reach the attack by appellees on the constitutionality of the convenience and necessity provision.

Affirmed.


text:
    Lewis B. SMITH et al v. FARM SERVICE COOPERATIVE et al
    5-4488
    424 S. W. 2d 147
    Opinion delivered February 19, 1968

      Wade & McAllister, for appellants.

      Warner, Warner, Ragon & Smith, for appellees.
   Lyle Brown, Justice.

This is a workmen’s compensation case. It was stipulated that Michael L. Smith, a minor, was fatally injured while in the employment of the appellee company, Farm Service Cooperative. Appellants, Michael’s family, seek recovery on the basis of partial dependency on Michael. The family unit consisted of the parents and four minor children, including eighteen year old Michael. The Commission and the trial court found no partial dependency. It was held that “the claimants were not dependents within the meaning of the Act.”

Michael worked for Farm Service Cooperative in Fayetteville and grossed approximately $41 per week. His father testified that Michael gave him $60 per month for expenses. The family also contended that Michael’s car was in fact the family automobile. It was stated that he contributed labor to the raising of rabbits, chickens, cows, and other livestock that benefited the family. On at least one occasion Michael paid the electric and butane bills.

At the time of Michael’s death the father was unemployed. The record indicates it was merely temporary and that for the full year preceding the fatal accident, Lewis Smith had earned approximately $85 per week. He returned to the same job shortly after Michael’s death but at a slightly lower wage. None of the other members of the family earned any income.

The appellants first question the propriety of the Commission’s consideration of the economic situation prior to the day of the accident. They argue that under Ark. Stat. Ann. § 81-1315 (h) (Repl. 1960) “all questions of dependency shall be determined as of the time of the injury. ’ ’ Since the father was in fact unemployed at the time of Michael’s death, appellants contend that is the proper time to determine the dependency of the family on Michael’s earnings. Instead, the Commission considered a reasonable period of time in making its factual finding. According to Nolen v. Wortz Biscuit Co., 210 Ark. 446, 196 S. W. 2d 899 (1946), the Commission was correct in considering the prior events as opposed to a temporary situation.

Appellants next challenge the correctness of the test used to determine partial dependency as applied to minor children. Ark. Stat. Ann. § 81-1315 (i) (Repl. 1960) provides that the right to workmen’s compensation benefits is based on a finding of dependency. That provision allows proportionate compensation in relation to the amount of actual dependency on the employee’s earnings to the total dependency of claimant. Appellants argue that the legal obligation to support the minor child by the father should be the controlling factor in determining dependency. Without reciting the circular reasoning of the appellants, we do not find the position meritorious.

Dependency is a fact question. It is to be determined in the light of surrounding circumstances. Crossett Lumber Co. v. Johnson, 208 Ark. 572, 187 S. W. 2d 161 (1945). The Commission used the correct test. The rule is stated in 2 Larson, Workmen’s Compensation La/w, § 63:11, as follows: “whether his contributions were relied on by claimant to maintain claimant’s accustomed mode of living.” In Crossett Lumber Co. v. Johnson the same standard is used: “it is quite apparent that the contributions did affect their standard of living and were properly a part of their support.”

At the time of his death Michael’s expenses included an automobile payment of $38.92 per month, clothing, gasoline, and one meal daily when away from home. He traveled 52 miles round trip to work. He was required to repair his automobile on occasions and recently bought new tires for it. An additional expense was the cost of remodeling a house in anticipation of his marriage. Michael also dated regularly. Social security, state, and federal taxes must be deducted from his gross income of $41 per week. Moreover, when Michael died, according to the father, he owed some open accounts.

The only testimony as to the $60 per month payment came from the father, an interested party, and the Commission gave doubtful credence to it. Even the mother could not substantiate the amount, regularity of payment, or the agreement. The Commission discounted all testimony as to the loss of services performed on or about the farm, those services not being a part of the eafnmgs as required by the Act.

The Commission, in considering Michael’s income after tax deductions and his own expenses, found that he could not have contributed to the extent alleged. Further, they found no evidence that the family’s standard of living had been lowered due to Michael’s death.

Affirmed.


author: John A. Fogleman, Justice.

text:
    CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY v. Asa Julius LOCKWOOD
    5-4465
    424 S. W. 2d 158
    Opinion delivered February 19, 1968

      Wright, Lindsey & Jennings, for appellant.

      Switzer &> Griffin and Martin, Dodds & Kidd, for appellee.
   John A. Fogleman, Justice.

Chicago, Rock Island and Pacific Railway Company appeals from a judgment awarding Asa Julius Lockwood $75,000 as damages for personal injuries suffered while performing his duties on May 12, 1964, as a hrakeman employed by the company. Only two points are relied on for reversal. They are:

I.
The trial judge erred when he permitted appellee to interject and substitute a new, is sue in the litigation by amending the complaint at the close of plaintiff’s [appellee’s] testimony.
II.
The $75,000.00 verdict is excessive.
We will discuss these in the order listed.

I.

Appellee made the following allegations relating to appellant’s liability:

“That at the time aforesaid the handle of one of the handbrakes and the brake machinery on said train which Plaintiff, as such brakeman, was required to operate was imperfectly constructed, defective and unsafe; that said imperfection, defectiveness, inadequacy and unsafeness could have been by said Defendant discovered and known by the use and exercise by it of ordinary care and diligence, and were at the time aforesaid known to the Defendant; but the same were unknown to the Plaintiff.
# # *
That the negligent acts complained of herein by the Defendant have damaged the Plaintiff, ASA JULIUS LOCKWOOD, in the sum of $150,000.00.”

There was no evidence of negligence on the part of appellant. At the conclusion of appellee’s evidence, his attorney, before resting, made a motion that the complaint be amended to conform to the proof — specifically to state that appellee’s injuries proximately resulted from violation by appellant of 45 USCA § 11, which required appellant to equip its cars with a hand brake that would perform properly when used in the usual and customary manner.

The amendment was allowed by the trial court, over appellant’s objection that pleading the Safety Appliance Act, which had not previously been referred to, injected a new and different theory and basis of liability into the case. Appellee had testified that on the occasion of his injury he was going to get up on a pole car and set a hand brake. In order to do so, he mounted a little platform on the end of the car and took hold of the brake handle preparatory to swinging around on the platform. He took hold of the brake handle with his right hand and turned loose of a grab iron on the side of the car which he held with his left hand. Thereupon his entire weight was thrown on his right hand and the brake handle snapped, causing him to fall to the ground. After the fall, he still had the broken brake handle in his hand. Appellee stated that he had never performed this duty in any other way, had never seen it done in any other way, and that as far as he knew, this was the normal, customary manner in which it was done.

There was no motion for a continuance hy appellant, nor is there any contention hy appellant that the evidence was not sufficient to support a verdict under the Federal Safety Appliance Act. No evidence was offered hy appellant.

Title 45, USCA § 11 requires that all railroad cars he equipped with efficient hand brakes. This act does not impose an absolute liability, but it does impose an absolute duty, and a carrier is not excused from liability by any showing of care, however assiduous. Myers v. Reading Co., 331 U. S. 477, 67 S. Ct. 1334, 91 L. Ed. 1615 (1947); Brady v. Terminal R. Ass’n., 303 U. S. 10, 58 S. Ct. 426, 82 L. Ed. 614 (1938). Even though a complaint alleges negligence consisting of failure to warn an injured employee, failure to inspect and failure to furnish the employee with a safe place to work, without mentioning this section of the statute, the railroad’s absolute duty is brought into the case if there is evidence which shows a brake to be inefficient. Long v. Union R. Co., 175 F. 2d 198 (3d. Cir. 1949). In such a case, allegations of negligence are considered surplusage. Colwell v. St. Louis-S. F. Ry. Co., 335 Mo. 494, 73 S. W. 2d 222 (1934). The only burden on a plaintiff is that he prove by direct or circumstantial evidence either a specific defect or the failure of the brake to function efficiently on normal, ordinary operation. Selby v. Chesapeake & Ohio Ry. Co., 11 Ill. App. 2d 395, 137 N. E. 2d 657 (1956).

Under the Arkansas Civil Code, a plaintiff is only required to state the facts constituting his claim or cause of action. Ark. Stat. Ann. §§ 27-1101, 27-1113. The statement of facts constitutes the cause of action. Albersen v. Klanke, 177 Ark. 288, 6 S. W. 2d 292; Grytbak v. Grytbak (on rehearing), 216 Ark. 674, 227 S. W. 2d 633, 635; Taylor v. Taylor, 224 Ark. 328, 273 S. W. 2d 22. All that is necessary is that the complaint state a cause of action within the jurisdiction of the court. Crowder v. Fordyce Lbr. Co., 93 Ark. 392, 125 S. W. 417. It is not necessary to plead a federal statute in order to have the benefit of it, so long as allegations constituting a cause of action thereunder are made. St. Louis I. M. & S. Ry. Co. v. Hesterly, 98 Ark. 240, 135 S. W. 874 (reversed on other grounds) 228 U. S. 702, 33 S. Ct. 703, 57 L. Ed. 1031).

Under Ark. Stat. Ann. § 27-1160 (Eepl. 1962), a court may at any time, in furtherance of justice and on such terms as may be proper, amend any pleading by conforming it to the faets proved, when the amendment does not substantially change the claim or defense. Under the circumstances existing here, the trial judge did not abuse the discretion vested in him by this section of the civil code. The amendment permitted here effected a less substantial change than was involved in El Dorado Pipe & Supply Co. v. Penguin Oil Co., 174 Ark. 843, 296 S. W. 713, wherein reversible error was found in refusal to permit the amendment under this section. There the amendment would have changed the action from a suit to charge a surety on a note to one on open account with an allegation that the. defendant received the benefit of certain property sold by plaintiff. The amendment was requested on the basis of plaintiff’s offer of proof that the property was sold for the benefit of the defendant at whose request plaintiff accepted a note made by a third party to whom defendant traded the property. In that case the defense of ultra vires asserted in defendant’s answer to the original complaint would have been eliminated by the amendment.

In the case at bar, the appellee alleged and offered evidence of facts which constituted a cause of action under the Safety Appliance Act. Appellant has not indicated any defense of which it was deprived by the amendment or any evidence which it might have offered in defense of the amended complaint which would not have been admissible under the issues raised by the original complaint. If appellant had ashed for a continuance, the burden would have been upon it to show to the satisfaction of the court how it had been misled to its prejudice. Williams v. Bullington, 195 Ark. 253, 111 S. W. 2d 507. Since prejudice to appellant has not been shown and is not apparent, we cannot say that the trial judge abused his discretion in granting the amendment incorporating into the pleading an allegation not essential to the recovery sought.

We consider cases cited by appellant to be distinguishable. In cases such as Patrick v. Whitely, 75 Ark. 465, 87 S. W. 1179, and Bridges v. Harold L. Schaefer, Inc., 207 Ark. 122, 179 S. W. 2d 176, the amendments refused would have permitted recovery based on contracts or agreements different from those asserted in the original pleading, or would have included elements of damage not recoverable under the original pleading. The amendments in Butler v. Butler, 176 Ark. 126, 2 S. W. 2d 63, and Price v. Price, 215 Ark. 425, 220 S. W. 2d 1021, would have added allegations supporting new and different issues not raised by the facts alleged in the original complaint. Defendants in the two latter cases would necessarily have had to offer evidence of facts materially different from that which would have been admissible on the issues made by the original pleadings. Such is not the ease here.

n.

Appellant’s argument that the verdict is excessive is based largely upon these contentions:

1. Appellee’s 1966 earnings were $2,124.00 greater than his earnings in 1962, the year prior to that in which his injury occurred.
2. No loss of future earnings is anticipated.
3. Appellee’s work hours would cause fatigue independent of his injury.
4. Appellee had injured his back on two previous occasions.
5. The medical testimony giving appellee a 22%% disability rating based on limitation of motion does not support the verdict in view of the doctor’s statement that appellee had made excellent recovery after his surgery and appellee’s demonstrated ability to perform his job.

In considering whether this verdict should be set aside as excessive, we note that there was testimony before the jury tending to show the following facts:

Appellee had a hard fall, from which he suffered “unbearable” pain in his back. He was in discomfort while in traction for ten days. His left leg became drawn and would not straighten out. The effects of a myleo-gram were so painful that he couldn’t raise his head for two days. He went through quite an ordeal after a second myleogram and disc removal surgery in May 1964. When he went to work for a few trips, after this surgery, his back kept getting worse until he felt like “an old rusty spike” had been driven in him. A spinal fusion done in June 1965 was very painful and thereafter for about six weeks he could “hardly bat his eyes.” For sometime after the injury, he couldn’t sit or stand still and couldn’t sleep or stay in bed. Often he would get up laround midnight and spend the rest of the night on a couch, lying on the floor, or sitting up and drinking coffee. His trouble sleeping continued for about two years. His wife had to help him dress and undress for a time after the injury and again after surgery. He wore a corset after the injury and was in traction for a ten-day period before any surgery was done. He wore an uncomfortable brace for a while after the disc removal and a “chair-back” brace for two or three months after the fusion. He was in hospitals undergoing traction, therapy or surgery on six different occasions total-ling about 70 days. He was “scared to death” when surgery was suggested. For a long time he was without much hope, his mental outlook was bleak and he was despondent because of his inability to work. He and his family had financial problems. His disposition changed from that of an easy-going, “life of the party” individual to a short-tempered and impatient one. This has affected his relationship with his wife and family. Prior to his injury, he was a very active person, participating iii fishing, swimming, baseball and other activities with his children. In spite of their invitations, he cannot now continue these activities. A fine father-son relationship has been destroyed by his inability to spend most of his off-duty time with his son as he formerly did. For two years he was unable to do anything when not at work except sit or lie down. There were long periods of time when he could not drive an automobile and he cannot sit comfortably in one now. He will experience some pain in the future, depending upon his activities. Lockwood’s medical bills totaled $4,245.86, of which appellant paid $2,800.00. A balance of $855 is due Dr. Logue.

Appellee’s job at the time of the injury was on a run from El Dorado to Crossett. His pay rate at that time was $19.03 for an eight-hour day, plus certain overtime pay. This run involves a nine to ten-hour day. His earnings were:

1961 — $7,697 1962 — $ 7,992
1963— 6,958 1964— 1,179 (Including 3 weeks vacation pay)
1965— 1,659 1966— 10,116

Only a few months after his injury Lockwood became entitled by seniority to the job on the El Dorado-Winnfield, Louisiana run on which he returned to work on November 17, 1965. During the time he was unable to work, his pay rate increased to $21.06 for eight hours, plus overtime pay. He worked nine to ten hours on the Orossett run,, but the hour range on the Winn-field run is twelve to sixteen. If he had been able to work in 1964 and 1965, he would have made $11,000 to $12,-000 on the higher pay scale.

After appellee returned to work in November 1965, he found it necessary, because of the condition of his back, to miss at least one trip every two weeks until the fall of 1966. He also missed a week or ten days during the month preceding the trial for the same reason. Had it not been for these absences, he could have made $12,-000 or $13,000 in 1966.

Lockwood has a high school education. He has never done anything except work for the railroad. He has a limitation of motion in bending and a minor weakness of his leg. His permanent disability of the body as a whole resulting from the fall is 22%%. He now avoids one of the duties of his job — lifting 300-pound frogs after a car derailment. He also avoids getting on certain types of railroad cars because of his inability to bend in order to get a hand hold. On. his present job, his back bothers him after he stands on the ground “switching.” The longer he continues this, the worse it hurts. On some days the pain is great enough to bring tears to his eyes, and he has to lie down in the caboose of the train between stations. Just bending, squatting or sitting down is painful. The present run is too heaw a job for him. He has continued on this job because of his financial needs and in order to see if he could do the job. If he leaves the Winnfield run, he cannot get back on the Orossett run until there is an opening. His doctor has advised him to do a minimum of strenuous work and to get off his present job. It is his doctor’s opinion that the duties associated with Lockwood’s work for appellant are beyond his phvsical capacity. The doctor has recommended that appellee change jobs because it is his opinion that one who has this history of back trouble and surgery should not expose himself to the rigors of full-time railroading. In the opinion of this doctor, this injury to the spine and resultant spinal fusion will probably cause the back to age more quickly and may accelerate the onset of arthritis. Further, after a fusion, jumping on and off a train will increase the chance of his having disc trouble in the upper spine. If appellee can continue at his present work, he will be eligible for retirement at age 65 or, if able, he could continue to work until age 70. A person his age at the time of the trial has a life expectancy of 31 years.

Appellee is drawing payment for 40% disability from shrapnel wounds about the head, shoulders and arms suffered during World War II. He has been drawing this compensation since the injury. He was employed by appellant after his world war service. He also suffered back injuries in February of 1961, and in the spring of 1963. He had osteopathic treatment in June, July and August 1963, for the 1963 injury. Neither injury was disabling, and he was never caused to miss a day’s work because of either back injury or his military disability. None of these injuries or their results had interfered with the performance of his duties.

While the jury award is extremely liberal, we cannot say that it is so excessive as to shock the conscience of the court, when we review, in the light most favorable to appellee, the evidence of pain, suffering and mental anguish suffered and to be suffered, earnings lost and to be lost, and the nature, extent, duration and permanency of the injury.

The judgment is affirmed.

Jones, J., dissents in part.

       This is a part of the act known as the Federal Safety Appliance Act.