author:
Ernie E. Wright, Chief Judge.
      David Newbern, Judge,

text:
    J. L. WILSON FARMS, INC. et al v. Johnny WALLACE et al
    CA 79-135
    590 S.W. 2d 42
    Opinion delivered October 31, 1979
    Rehearing denied December 5, 1979
    Released for publication December 5, 1979

      Macom, Moorhead & Green, by: William M. Moor-head, for appellants.

      Charles A. Walls, Jr., for appellees.
   Ernie E. Wright, Chief Judge.

This appeal to the Arkansas Supreme Court was assigned to the Court of Appeals pursuant to Rule 29(3).

Appellees, Johnny Wallace and Chester McGee, filed action for damages against Appellants, J. L. Wilson Farms, Inc., Humphrey Flying Service, Inc. and Ned Brown, for damages to their respective 1974 cotton crops, allegedly caused by aerial spraying of a hormone type herbicide, 2-4-D, on the Wilson rice fields in the vicinity of appellees’ cotton crops.

From a jury verdict and a judgment awarding damages in the aggregate amount of $36,717.20 in favor of Wallace and $980.35 in favor of McGee, appellants bring this appeal and allege three points for reversal which are hereafter separately discussed.

I.

Appellants contend the court erred in refusing appellants’ motion to exclude from the jury the fact that the pilot of the plane, Ned Brown, who made the aerial application of the Herbicide to the Wilson rice fields in the vicinity of appellees’ crops was not licensed to do so. Appellants contend the evidence had slight relevance, if any, and great prejudicial effect.

The court overruled appellants’ motion to exclude testimony showing the Appellant, Ned Brown, was not licensed by the Arkansas Plant Board to make applications of the hormone herbicide by aircraft.

Act 152 of 1951 declared 2-4- D and any herbicide which the Plant Board, after investigation and public hearing, determines to be injurious to vegetation other than vegetation it was intended to affect, to be a public nuisance and prohibited the sale or use except in accordance with regulations as might be made by the State Plant Board. The regulation of the Plant Board issued pursuant to the Act was received in evidence as joint exhibit #3. The regulation determines 2-4-D in certain conditions to be highly injurious to vegetation other than vegetation it is intended to affect, and it requires any commercial aerial applicator to first obtain authorization from the State Plant Board. It provides for the screening of such pilots based on their past history in the application or supervision of application of such herbicides. Appellees were permitted to prove the pilot, Appellant Ned Brown, had not complied with the regulation by obtaining the required Plant Board authorization. Evidence was also presented showing the aircraft belonging to the Appellant, Humphrey Flying Service, Inc., had not been inspected by the Plant Board to determine whether the spraying equipment of the plane met the requirements of the Plant Board regulation. Certificates are issued by the Board for aircraft and equipment approved for spray applications. The regulation details maintenance requirements incident to the spraying system and the requirement of notification to the Plant Board in writing of the name and address of the owner or owners of susceptible crops treated by the aircraft and the date of the treatment. The regulation further provides that unannounced spot check of equipment and application methods and jobs in progress will be made by the Plant Board; and that only pilots holding valid authorization from the Plant Board may apply hormone-type herbicides.

The regulation is extensive and detailed. The obvious intent is to prevent damage to others in the vicinity when a herbicide of this type is applied by aerial spraying. There was evidence aerial application of this herbicide results in floating of the substance for substantial distances with resultant damage to broad leaf crops. Injury to crops in the vicinity is partially dependent on weather conditions.

Neither J. L. Wilson, Inc., the owner of the rice fields being sprayed, the pilot who did the spraying, Ned Brown, nor Humphrey Flying Service, Inc., the owner of the aircraft involved, notified the Plant Board of the spraying. The plane and equipment were not approved by the Plant Board and the pilot, Mr. Brown, was not authorized to make aerial applications of the herbicide. Although Mr. Brown testified he was familiar with the requirements of the Plant Board and that his plane and equipment were up to the standards required by the regulation, he was one of the defendants in the action and the court properly admitted evidence showing the appellants had not complied with the regulations of the State Plant Board calculated to safeguard the interests of others in the vicinity of the spraying. The appellees were not bound by the testimony of the Defendant Brown and the evidence of failure to comply with the Plant Board regulation was properly admitted for the jury’s consideration along with all other evidence. We hold the regulation was a proper consideration for the jury in determining the issue of negligence. Dunn v. Brimer, 259 Ark. 855, 537 S.W. 2d 164.

II.

Appellants contend there is no substantial evidence from which the jury could find that the herbicide, applied in a water base by aircraft, to a rice field over a mile from appellees’ nearest cotton fields was an inherently dangerous product as defined by the court. The court told the jury that an “inherently dangerous product” is one, use of which for the intended purpose necessarily involves a risk of serious harm to the property of others regardless of the degree of care which is used in its preparation and use.

Nine of the jurors answered “yes” to the interrogatory submitted to them on the inherently dangerous product theory of the case.

There was substantial testimony in the record tending to show the application of this herbicide by air necessarily involves a risk of serious harm to broad leaf crops of others regardless of the degree of care which is exercised in its use, and the evidence was sufficient to support the jury finding that the product is inherently dangerous when used under the circumstances in evidence. Chapman Chemical Company v. Taylor et al, 215 Ark. 630, 222 S.W. 2d 820.

III.

Appellants contend that it was only because appellees were permitted to use incompetent evidence that any material damage was shown.

The evidence of which appellants complain relates to the introduction by appellees of yields of cotton per acre for prior years on the lands for which crop damage is claimed for 1974, the averaging of yields of prior years, and showing the difference between the prior three and four years average yield and the 1974 yield. The difference was categorically stated as the crop loss for 1974. It is contended the evidence of injury to the 1974 cotton crop by comparison with prior years average yields was too speculative to submit the issue to the jury. This evidence was introduced by appellees without objection by appellants. However, appellants moved for a directed verdict at the close of the appellees’ case and also at the close of the appellants’ case, contending the evidence of production on the same fields for prior years had no validity bearing on the amount of yield loss for the year 1974 because, it was contended that there are great variations in year to year yields. Also, appellants contended there was considerable cold and wet weather in the summer of 1974 that reduced the yield. Appellants contend any damage to the crop in 1974 should have been shown by a comparison of yields for that year in undamaged cotton fields in the same vicinity with similar soil and farming methods.

However, evidence was offered on behalf of the Appellee, McGee, of the reduced production on his thirteen acres of cotton as compared to his nearby undamaged cotton field.

Appellants contend the evidence was too speculative and conjectural to submit the issue of damages to the jury because of lack of substantial proof of damages, and that there was no proof of costs that would have been incurred incident to harvesting and marketing of the lost portion of the cotton crop, had it not been damaged.

We conclude from the evidence that the yield from cotton grown on the same lands in the area here involved is affected so much by weather conditions and other variables that the use of an average yield per acre for the preceding three or four years is not a reliable guide to the yield that would have been reasonably expected in the year 1974, absent injury from the herbicide. However, the testimony of Appellee McGee whose cotton lands were near the Wallace cotton fields and three-fourths mile from the Appellee Wilson rice fields reflected a per acre loss in yield of his cotton as compared to his nearby undamaged cotton in 1974 in the amount of 161 pounds per acre. We find this evidence to be the only substantial and reliable evidence upon which to predicate judgments in favor of appellees. Any judgment in excess of the amount warranted by this evidence would necessarily depend upon speculation and conjecture. It is to be noted the testimony of Appellee McGee and appellants’ witness, Bobby Frizzell, showed they sustained a large reduction in yield in their 1974 undamaged cotton fields, on lands similar to the Wallace and Me Gee cotton lands, a fact which further demonstrates the speculative nature of attempting to determine crop injury by use of production figures for prior years.

Computing the loss of the Appellee Wallace for the 299.1 acres of cotton at a reduced yield, reasonably attributable to the spraying, of 161 pounds of cotton per acre would result in an aggregate yield loss in 1974 in the amount of 48.155.1 pounds. The evidence shows the cotton brought thirty-nine cents per pound and this would amount to a loss of $18,780.49. The seed on this amount of cotton at $20.00 per bale, as shown by the testimony, would have yielded an additional $1,926.20, giving a gross loss damage to the Wallace cotton in the amount of $20,706.69. This would be reduced by a payment in the amount of $289.21 Appellee Wallace received as a disaster payment from the ASCS Office for that year, leaving a net damage in the amount of $20,417.38 as the maximum net damage to Appellee Wallace supported by substantial evidence. It is true this makes no allowance for any reduction of damages by costs that might have been incurred in the harvesting and marketing of the portion of the crop lost by reason of damages. However, the evidence reflects Wallace and McGee each had his own cotton picker and the testimony was there would have been no extra cost. It may well be that any extra cost would have been negligible since the machinery had to be operated over the lands to gather the reduced yield available for harvesting. The jury was properly instructed and we find no prejudice under this contention, Moore v. Lawson, 210 Ark. 553, 196 S.W. 2d 908 (1946).

The evidence of reduced yield on the 13 acres of herbicide damaged cotton belonging to Appellee McGee showed a reduction in yield as compared with other parts of his cotton crop on similar lands for the year 1974 in the amount of 161 pounds per acre and an aggregate loss of 2,093 pounds of cotton. He received thirty-eight cents per pound for his cotton and this shortage amounted to $795.00. His testimony showed the loss on seed for this amount of lint weight would be from $80.00 to $100.00. Appellee McGee also offered evidence of what his 1974 shortage would run using prior three years’ production as a basis for determining loss. Using this method his loss was stated to be $988.00 plus $100.00 for seedloss. We hold the maximumlossto Appellee McGee supported by substantial evidence to be $895.00.

The judgments are reduced to the amounts herein stated in order to strip the judgments of amounts awarded upon speculative evidence calculated to determine the crop loss by using cotton production averages for prior years as a basis. The evidence was patently unreliable for establishing the loss in yield for 1974. The appellate court has authority to reduce the judgments to amounts supported by substantial evidence. First National Bank of Minneapolis v. Malvern, 171 Ark. 994, 287 S.W. 185 (1926).

We do not suggest the prior years’ yields would be incompetent evidence for corroborative purposes. We merely hold that loss in production simply using the average of such yields as a basis for determining crop damage or injury does not constitute substantial evidence to support a verdict to the extent the verdict is supported only by such evidence.

The judgment in favor of Appellee Wallace is modified by reducing the aggregate judgment to $20,417.38; and the judgment in favor of Appellee McGee is modified by reducing same to $985.00.

As modified the judgments are affirmed, and the modified judgments are pro-rated among the three appellants on the same per centum basis as the original judgments.

Newbern, J., dissents, and Penix, J. Joins in the dissent.

David Newbern, Judge,

dissenting. The majority holds that evidence of prior year crop yields is not a sufficient basis to sustain a jury’s damages determination. To the extent this court’s decisions are precedents, I believe we are setting a bad one, and unnecessarily so.

The standard measure of damages for loss of part of a growing crop is the market value of the crop measured by the expected yield less the cost of maturing, harvesting and marketing the crop. Dobbs, Remedies, § 5.2, p. 325 (1973). In this case the majority deems deficient the evidence as to the “expected yield” part of this formula. Without citation of authority, the majority reduces this judgment because it finds evidence of prior year production speculative. But it finds evidence of a crop harvested by one of the plaintiffs in the same year to be a sufficient basis to sustain part of the jury’s award.

Evidence of production from prior years was admissible and sufficient to sustain the verdicts and judgment. This case presents a classic example of well-represented plaintiffs stating “categorically” their losses and well-represented defendants presenting evidence that the plaintiffs should not recover as much as they think they should. The jury had before it evidence of the average crop yield of the Wallace operation as well as evidence of the yield of the untainted crops of Me Gee. Other evidence was presented with respect to weather conditions in 1974. The jury thus had before it a well-developed case on the issue of damages, and we should not disturb their fact determinations.

Early cases showing the acceptability of evidence of average yield per acre, along with other evidence, include Lester v. Highland Boy Gold Min. Co., 27 Utah 470, 76 P. 341 (1904), and Sayers v. Mo. Pac. Ry., 82 Kan. 123, 107 P. 641 (1910). More recent cases include, Bryant v. McCann, 297 So. 2d 262 (La. App. 1974), where the court notes how the trial judge itemized the damages to various of the plaintiffs crops caused by the defendant’s cattle, and then says:

In making those calculations, the trial judge determined the average yield which the plaintiff had obtained in prior years for the same type of crops, raised in the same place and in the same manner. He then determined the market value of his 1972 crops, computed according to the method set out in the Trahan case, supra, [average yield less cost of marketing, harvesting and maturing the crop]. We think the trial judge was conservative in determining the average yield and market value of most of those crops.
We find no error in the method used by the trial judge in determining the loss sustained by the plaintiff. [297 So. 2d at 267.]

The Mississippi Supreme Court recently dealt with a 1974 cotton crop loss under circumstances remarkably similar to those of the case before us. In Mid-Continent Aircraft Corp. v. Whitehead, 357 So. 2d 122 (Miss. 1978), the plaintiff attempted to rely on federal government “projected yield” figures to show his crop injury. The court said it was error for the trial court to consider those figures, but then it very clearly relied on the average yields for the three years prior to 1974 as its basis for saying:

The history of actual production tends to negate substantial damage to the 1974 cotton crop traceable to the herbicide, but we conclude there was a case (though skimpy) sufficient to go to the jury. [357 So. 2d at 126]

The court’s point was that the average yield of 633 pounds for the year 1971-1973 was not very different from the 1974 yield of 604 pounds.

In the case before us, the evidence showed the 1974 crop to be far below the average displayed to the jury and far below any one of the figures showing annual yield on each property farmed by Wallace. It is true there were variations from year to year in the prior year figures, but they could have been caused by any number of factors, like weather. That does not make those figures “speculative,” especially where the jury has before it evidence of other factors, like weather, and the defendants have every opportunity to explain, as they did here, that the plaintiff’s crop could have been affected by factors other than their toxic spray.

Finally, I believe it would be instructive to look at the most recent crop damage case decided by the Arkansas Supreme Court and compare the evidence it approved as sufficient with that presented here. In Sullivan v. Voyles, 249 Ark. 948, 462 S.W. 2d 454 (1971), the court had before it the testimony of a farmer about loss to his “truck crop” due to the defendant’s negligent spraying. He testified about the condition of the crop in the field and gave his opinion what its ultimate yield at the market would be. The court said that was sufficient, citing Railway Co. v. Lyman, 57 Ark. 512, 222 S.W. 170 (1893).

I cannot escape the conclusion the evidence here was far less speculative than that in the Sullivan case, and I believe it was no more speculative than the evidence the majority approves as sufficient to set Mr. Wallace’s damages, i.e., evidence of the same year per-acre yield of a different farmer who may have different resources, skills and motives from those of Mr. Wallace.

I believe the evidence properly submitted to the jury in this case was sufficiently substantial to form the basis of its award to Mr. Wallace. Similarly, I do not see any reason to limit the jury to one factor with respect to Mr. Me Gee’s loss. Therefore, I would affirm.

Judge Penix has authorized me to say she joins in this dissent.


source: Caselaw Access Project

author:
Ernie E. Wright, Chief Judge. Marian F. Penix, Judge,
      David Newbern, Judge,

license: Public Domain

text:
    ARKANSAS FARM PRODUCTS, INC. v. FORD MOTOR CREDIT COMPANY
    CA 79-154
    590 S.W. 2d 48
    Opinion delivered October 31, 1979
    Rehearing denied December 5, 1979
    Released for publication December 5, 1979

      Dennis L. James, of Southern, Matthews & James, for appellant.

      Griffin Smith and W. R. Nixon, Jr., for appellee.
   Ernie E. Wright, Chief Judge.

This appeal to the Arkansas Supreme Court was assigned to the Court of Appeals pursuant to Rule 29(3).

On April 22, 1977 appellant purchased a tractor from Walt Bennett Ford Company in Little Rock for $12,750.00, paying $2,750.00 down and executing a retail installment contract for the balance of the purchase price in the amount of $ 10,000.00, plus $ 1.00 for the cost of filing the lien with the Motor Vehicle Division, and including a finance charge of $1,074.76. The aggregate amount of $11,075.76 was scheduled to be paid in twenty-four consecutive monthly installments of $461.49 each on the 5th day of each month beginning June 5, 1977.

The contract required the buyer to maintain insurance against loss or damage to the property to protect the interest of the holder of the contract.

The contract was immediately assigned to the Appellee, Ford Motor Credit Company. Appellant made his monthly payments through March, 1978. At that time he had permitted the insurance on the vehicle to expire and was notified by letter dated March 13, 1978 he must furnish evidence of insurance or pay off the obligation. He failed to provide the insurance and appellee filed a replevin action on April 7, 1978. Appellant filed an answer and later an amended answer contending the contract should be declared void as usurious. The contention was based on the inclusion of the $1.00 lien registration fee in the principal amount of the contract and the allegation that a $50.00 charge was provided to be deducted from interest rebate in the event the buyer should pay the debt before maturity.

At trial it was not disputed that the seller incurred and paid $1.00 to register the lien with the Motor Vehicle Division. Appellant contends the court erred in failing to hold the $1.00 lien registration fee constituted interest in determining the issue of usury.

We hold the seller was permitted to include the $1.00 hen registration fee incurred in the face amount of the contract. In Lockhart v. GMAC, 252 Ark. 878, 481 S.W. 2d 350 (1972), involving an issue of usury the court said:

Not every charge made to the borrower which benefits the lender will render a transaction usurious simply because the interest rate is a full 10% particularly if the charge is reasonable, is made in good faith and is reimbursement for a payment to a third person for something appropriate to establishing or protecting of the lender’s security. For instance, we have recognized the propriety of such charges as property inspection fees, expense of an abstract of title, title examination fees, insurance premiums paid a third party, recording fees, expense of obtaining a release of a prior lien, and title insurance premiums. (Citing numerous cases.)

In Brown v. Fretz, 189 Ark. 411, 72 S.W. 2d 765 (1934), the court held a mortgage bearing the highest legal rate of interest was not usurious because the borrower was required to pay for recording the mortgage and other incidental loan closing expenses.

Appellant contends the court erred in failing to hold the $50.00 acquistion fee mentioned in paragraph (14) of the contract was interest making the contract usurious.

The contract does not impose any unconditional requirements on the buyer to pay all or any part of the $50.00 acquistion fee. Under the terms of the contract the buyer is obligated to pay the debt in twenty-four equal consecutive monthly installments on the 5th day of each month beginning June 5, 1977. The payments are not scheduled to be paid on or before the 5th of each month. Under the contract the buyer is not required to pay any part of the $50.00 acquisition fee unless the buyer elects to pay the contract off before due. Then the $50.00 item or a part thereof determined by a formula based on total number of payments in relation to unpaid installments would be deducted from the unearned interest rebate, and the rebate would be computed under a formula called the “sum of digits method.”

At the time of trial the contract had not been paid off so no part of the $50.00 item had been paid by appellant. In the suit appellant indicated his prior desire to pay the contract off, but contended he would have been required to pay all or part of the $50.00 item and that this made the contract usurious.

The appellee’s evidence was that if appellant paid the balance of the contract as of the date of trial, January 15, 1978, the portion of the $50.00 acquisition fee that would have been deducted from the interest rebate would have been $1.67 under the rule of 78s, which is the sum of digits method, used to determine the rebate decimal. Appellee’s testimony was that the $50.00 acquisition fee is not in the finance charges in the contract and does not affect the transaction in any way, unless the buyer elects to prepay the contract under item (14) of the contract. In this event in computing the interest rebate the buyer is chargeable with a portion of the $50.00 item determined by a decimal expressing the ratio of the number of payments remaining divided by the number of original payments. The appellee’s evidence was that this same practice and rebate calculation is used in all retail installment contracts handled by it in Arkansas.

We hold the provision in the installment contract for the deduction of a $50.00 penalty, or a fractional part thereof determined by multiplying the $50.00 by a decimal determined by dividing the number of unpaid payments by the total number of payments is not usurious. Under this circumstance the penalty charge is not interest, but is a reasonable and permissible charge for permitting the buyer to pay off the contract in advance of the due date. Obviously a lender in setting up its records for a finance or installment contract incurs some expense, and while it may well contemplate absorbing that expense when the contract runs for the full period, it is understandable it would expect the obligor under the contract to pay some penalty for prepayment. Otherwise, the finance company might often be in a position of incurring expense incident to the contract only to have it paid off in full in a matter of days.

In Eldred v. Hart, 87 Ark. 534, 113 S.W. 213 (1908), the court held that where the instrument evidencing an installment debt is free of usury if paid according to its terms, the transaction is not rendered usurious by the debtor voluntarily paying the debt in full before some of the installments matured, even though as a result the creditor receives a total sum amounting to more than the principal and maximum legal rate of interest.

In the present case the appellant elected not to carry the insurance the contract required him to carry for the protection of the security interest of the holder of the contract. The insurance, in the event of loss, would also inure to the benefit of appellant. Thus, it was the voluntary action of the appellant that brought the penalty clause concerning prepayment into prospective operation when appellee elected to replevy the vehicle upon breach of the insurance clause of the contract. When appellee sought to replevy, appellant raised the issue of usury.

The case does not fall within the ambit of Arkansas Savings & Loan Association v. Mack Trucks of Arkansas, Inc., 263 Ark. 264, 566 S.W. 2d 128 (1978), which held the charging of a fee, service charge, points, a discount or taking interest in advance would be added to the stipulated interest in determining whether usury was involved. The $3,400.00 loan commitment fee in that instance was taken by the lender out of the loan proceeds. No condition such as an election to pay the loan before maturity was involved.

Likewise, the cases of Sosebee v. Boswell, 242 Ark. 396, 414 S.W. 2d 380 (1967) and Foster v. Universal C.I.T. Credit Corp., 231 Ark. 230, 330 S.W. 2d 288 (1959) involved monies exacted by the lender that did not involve a contingency within the control of the debtor.

Affirmed.

Penix and Newbern, JJ., dissent.

Marian F. Penix, Judge,

dissenting. Under Rule 29 APPELLATE JURISDICTION OF THE COURT OF APPEALS

1. All cases heretofore appealable to the Supreme Court shall, from and after July 1, 1979, be appealed to the Supreme Court:

a. All cases involving the interpretation or construction of the Constitution of Arkansas; . . .

This case involves an interpretation of Article 19, Section 13 of the Constitution of the State of Arkansas. The Section 13 reads:

Usury — Legal rate. — All contracts for a greater rate of interest than ten percent per annum shall be void, as to principal and interest, and the General Assembly shall prohibit the same by law; but when no rate of interest is agreed upon, the rate shall be six per centum per annum.

For the foregoing reasons it is my belief the case should be transferred to the Arkansas Supreme Court. Therefore, I respectfully dissent.

David Newbern, Judge,

dissenting. I agree with Judge Penix’s observation that this case falls squarely within Rule 29(l)(a) which deprives us of jurisdiction to determine cases “involving the interpretation or construction of the Constitution of Arkansas.”

It is particularly distressing to me that we refuse to certify this case to the Supreme Court in accordance with Rule 29(4)(a) because such an important question is presented and because of the obvious need for the Supreme Court to clarify and define the limits of Arkansas Savings & Loan Association v. Mack Trucks of Arkansas, Inc., 263 Ark. 264, 566 S.W. 2d 128 (1978). Although Judge Penix did not find it necessary to say so in her opinion, she has authorized me to say she agrees with my conclusion that the $1.67 penalty or pre-payment fee charged by the appellee is usury when seen in the light of the Mack Trucks Case. Thus, with Judge Hays not participating, we reach a three to two decision on the merits of this important case which should not be before us.

Our conclusion that the Mack Trucks Case applies is based on the broad but clear statement there that “the moneylender cannot impose upon the borrower charges that in fact constitute the lender’s overhead expenses or costs of doing business.” 263 Ark. at 267-268. We do not quarrel with the majority position that, unlike Mack Trucks, we have before us a charge which is somewhat within the borrower’s control, but that addresses only one principle stated in that case and not the one we quote. In this case, an employee of Ford Motor Credit testified the prepayment charge was made to cover the cost to the lender of the money the lender has to borrow in order to extend credit to its customer. Thus, this business risk of a loss to the lender resulting from prepayment is transferred to the borrower. This may be unlike the “commitment fee” dealt with in Mack Trucks, but I cannot see how it fails to constitute a part of overhead or the cost of doing business.

Eldred v. Hart, 87 Ark. 534, 113 S.W. 213 (1908), was decided seventy years before Mack Trucks, and although I can certainly distinguish it and the case before us from Mack Trucks, I cannot do so in any way that reconciles them to its language to my satisfaction. I hope our Supreme Court will undertake the task, and I regret we have not taken our opportunity to reduce speculation whether they will do so.


author: M. Steele Hays, Judge.

text:
    Claude RICE and Charlotte RICE, his wife, John C. PARRISH and Leona PARRISH, his wife, and John ALLEN v. Georgea Black McKINLEY
    CA 79-130
    590 S.W. 2d 305
    Opinion delivered October 31, 1979
    Released for publication December 5, 1979

      Ray H. Bowman and Malcolm Smith, for appellants.

      Andrew L. Clark, for appellee.
   M. Steele Hays, Judge.

This is an appeal from a decree granting the specific performance of a contract entered into between appellant, Claude Rice, and appellee, on February ‘6, 1968.

Appellant argues that no contract existed, citing Myers v. Snider, 226 Ark. 849, 294 S.W. 2d 495 (1956), to the effect that one seeking specific performance must prove the essentials of a valid contract and a readiness to perform the contract.

As to the first part of the argument, it is clear that the letter signed by appellant on February 5,1968, and by appellee on February 6, 1968, meets all the requirements of a binding, valid contract. The letter plainly imposes mutual obligations on the signees, Claude Rice and Georgia Black McKinley, and the promises of one party is a sufficient consideration for the promises of the other. Abbott v. Arkansas Utilities Company, 165 F. 2d 339 (1948); Southern Surety Company v. Phillips, 181 Ark. 14 (1930). Appellant says there was no “meeting of the minds,” but the letter is clear and specific in the obligations undertaken by each party, that is: appellant expressly recognized that appellee was the owner of the disputed strip, that he would erect a fence before a given time, that he would fill a certain ditch at the end of the lease period, that the parties would select a surveyor to do necessary surveying and bear the expense equally, that each would convey certain lands to the other following the survey and that appellee would lease to appellant the strip in dispute for five years with right of renewal for an additional five years at $12.50 per acre per year. A “meeting of the minds” is defined simply as an agreement reached by the parties to a contract and expressed therein, Hudson v. Columbian Transfer Company, 100 N.W. 402, 37 Mich. 255, or as the equivalent of mutual assent or mutual obligation, Wetherbee v. Gary, 381 P. 2d 237. Clearly, the letter expresses an agreement and recites a mutual exchange of obligations entirely sufficient to meet the essentials of a contract.

As to the second part of the argument, we find nothing in the record during the entire period under question to support the argument that appellee was not ready and willing to perform. In fact, it appears that the appellee recognized the agreement and was ready to perform those things required of her under its provisions. She accepted the annual lease payments, permitted appellant to farm the lands under the lease, joined in the letter of February 3,1972, ordered a survey and agreed to pay one-half of the expense, indicated her willingness to go forward with the agreement through Mr. Jenning’s contact with Mr. Dover in 1970, wrote to the Parrishes and to appellant, and finally, tendered her deed to the appellant in March of 1974.

Appellant admits the genuineness of his signature, but argues that the letter-contract could not have been signed, as appellee states, on February 5 and 6, 1968, relying on Defendant’s Exhibit No. 1, a letter dated February 29, 1968, in which modifications were discussed. It is evident that changes were made after the dates recited in the letter-contract, but appellant appears to have both expressly and impliedly accepted and concurred in those modifications by acting on the contract in numerous ways and having received the benefits of the agreement over several years and cannot now be heard to deny its very existence.

Next, the appellants insist that the suit filed by appellee on January 28, 1976, is barred by the statute of limitations and by laches. Appellee contends that this point was not raised below and cannot now be raised on appeal, citing Campbell v. State, 265 Ark. 575 and Garner v. Holland, 265 Ark. 536. But the record shows that an amended answer on behalf of appellants, Claude Rice and Charlotte Rice, was filed on January 19, 1977, pleading the statute of limitations and laches, so the argument that the issues were not raised properly in the court below is without merit.

Thus, the final, and more difficult, issue presented by this appeal is the question of limitations and laches. In a thorough and well reasoned memorandum opinion, the chancellor held, correctly, that the applicable statutory period of limitations was five years and rejected the appellant’s contention that inasmuch as the agreement was dated February 6,1968, the deadline for filing suit would have been February 6,1973. The error of appellant’s position is that the period of limitations runs from the point at which the cause of action accrues rather than from the date of the agreement. Admittedly, the nature of the agreement here is such that determining when the cause of action accrues is not without difficulty, but we believe the chancellor was correct in holding that the cause of action did not accrue until sometime after January 29, 1971, and therefore, the suit filed on January 28, 1976, was within the five-year period.

When did the appellee’s cause of action accrue? The letter contract between the parties provided that a surveyor would be selected by agreement and the cost borne equally, and, using that survey as a basis, the appellant Rice would convey to appellee Parcel “B” and appellee “in turn’ ’ would convey Parcel “A” to him. Whether the survey of L. C. Keefe (Plaintiffs Exhibit No. 2) is the survey contemplated by this provision, or the unfinished survey referred to in the Memorandum Opinion of the chancellor is not entirely clear. Appellant argues that the April (1968) survey is the one contemplated and we are inclined to agree, inasmuch as it purports to describe the two tracts (Parcel “A” and “B”) and is made for “Claude Rice and the Farelly Lake Company.” However that may be, the issue is moot for the reason that the parties voluntarily chose to defer the exchange of deeds until the litigation mentioned in Paragraph 4 of the agreement was completed. This deferment was at the suggestion of appellant’s attorney and was sensible in light of the likelihood that the outcome of the litigation would necessitate a correction of the description in the deeds.

What we perceive to have occurred, therefore, is that the parties mutually agreed to defer to an undesignated time in the future the agreed exchange of deeds and allowed the matter to remain in that posture until Mr. Jennings began renewing efforts to bring the matter to a head. Under these circumstances, we find no law, nor do appellants cite any, which holds that the statute of limitations was operating and we agree with the chancellor that there is no just basis on which to apply it.

Appellant insists that the statute of limitations is not tolled by “conversations” and surely that is true. But the point is that this is not a case in which one party to an agreement is in default in an obligation due at a specified time, or has breached a duty on a certain date. In those instances, it is clear that a tolling of the statute of limitations requires more than “conversation.” But where, as here, the parties have entered into an agreement which requires a series of mutual acts, some unilateral, some bilateral in character and have left the time of those acts open-ended, and where one contrives to receive the benefits of the agreement, and make lease payments annually thereunder, the cause of action does not accrue until one party has by word or conduct indicated to the other a repudiation of the agreement.

As stated, we find no case presenting precise authority, but the spirit of this point is supported by the general statements of the law and by the dictum in related cases.

In Federal Land Bank of St. Louis v. Miller, 184 Ark. 415 (1931), the statute of limitations was pleaded in defense of a suit by way of intervention by a mother to cancel a deed given to her son, in consideration of the son’s promise to suitably maintain her, alleging that the son had failed to keep his agreement. The son had subsequently given a deed of trust to the appellant bank, and then defaulted in the payments to the bank and in support of the mother. Denying the defense of limitations, the court said:

The insistence that the intervener is barred by the statute of limitations from the assertion of her claim of maintenance may be disposed of by saying that her son and grantee never at any time repudiated the obligation which he assumed in consideration for the execution and delivery of the deed to him. [184 Ark. at 420]

American Jurisprudence, 2d, Volume 51, Limitations of Actions, Section 127, states the rule to be as follows:

If a right of action depends upon some contingency or a condition precedent, the cause of action does not accrue and the statute of limitations does not begin to run until that contingency occurs or the condition precedent is complied with.
Thus, an agreement to convey an interest in property after partition cannot be enforced until partition, and the statute of limitations does not begin to run against a suit to enforce such agreement until that time. If one promises to pay when able, a cause of action does not arise and therefore the limitation period does not start to run until there exists such an ability to pay. And a like principle applies when payment is to be made out of a particular fund to be created by the act of the debtor.

Finally, there is an element of waiver and estoppel present in the appellant’s benefitting under the agreement on the one hand and asserting the defense of limitations on the other. Section 431 of American Jurisprudence, 2d, supra, states:

One cannot justly or equitably lull his adversary into a false sense of security, thereby causing him to subject a rightful claim to the bar of the statute of limitations, and then be permitted to plead the very delay caused by his course of conduct as a defense to the action when brought.

If it were necessary to fix the time appellee’s cause of action occurred, it would, we believe, be the end of the lease period, Le. December 31, 1972, plus the lapse of a reasonable time thereafter, as it was not until this point in time that the appellant was in breach of any obligation of the agreement (except the exchange of deeds, which was postponed at appellant’s suggestion) as it was not until the end of the lease that appellant was to perform the filling of the ditch. Applying the five year period of limitation to this accrual makes it apparent that appellee’s suit on January 28,1976, was within the statute.

Nor do we agree that the doctrine of laches should work to defeat the appellee’s suit to enforce the agreement. Laches is an unreasonable delay by the party seeking relief under such circumstances as to make it unjust or inequitable to the other party to enforce the agreement. The appellant was at least an equal participant in the delay in exchanging deeds and cannot be heard to say that laches should protect him, or that appellee’s delay was without cause. Grimes v. Carroll, 217 Ark. 210, 229 S.W. 2d 668 (1950); Norfleet v. Hampton, 137 Ark. 600, 209 S.W. 651 (1919); Gravel v. State, 181 Ark. 216, 26 S.W. 2d 57 (1930).

The decree of the lower court is, therefore, affirmed.


author: James H. Pilkinton, Judge. Marian F. Penix, Judge,

text:
    DESOTO, INC. and ALLSTATE INSURANCE COMPANY v. Lucille PARSONS
    CA 79-55
    590 S.W. 2d 51
    Opinion delivered October 31, 1979
    Rehearing denied December 5, 1979
    Released for publication December 5, 1979

      Hardin, Jesson & Dawson, for appellants.

      Wiggins, Christian & Garner, for appellee.
   James H. Pilkinton, Judge.

This is a workers’ compensation case. By an opinion of the Administrative Law Judge, claimant, Lucille Parsons, was awarded temporary total disability benefits continuing through an undetermined date, it being found that her healing period had not yet ended. From that decision, appellants perfected their appeal to the full Commission, which affirmed. Appeal was then taken to the Sebastian Circuit Court, which affirmed the decision of the Workers’ Compensation Commission. From that decision, the appellants have perfected an appeal to the Supreme Court of Arkansas, and the case has been assigned to the Arkansas Court of Appeals under Rule 29(3).

On this appeal appellants post two arguments. One objection is that claimant failed to give timely notice of injury within the provisions of Ark. Stat. Ann. § 81-1317(a). Their other argument is that claimant has failed to establish by any substantial evidence that she suffered an aggravation of a pre-existing infirmity in her back.

Respondents maintain that claimant at no time gave notice of a back injury during either of her two periods of employment with respondent-employer. The claim itself is for the previously mentioned aggravation occurring in early March, 1978. Testimony given by the claimant indicates that she experienced back pain during her first period of employment (November, 1976, until May, 1977) and that it forced her to leave work. She was re-employed in July, 1977, and the following September again began to experience back pain. She consulted Dr. Ralph Ingram in October, 1977, and was told that she had arthritis. Claimant returned to work and worked until March, 1978, when she quit because of persistent back pain.

Respondents insist that there was never any mention made in March, 1978, of a back injury necessitating her leaving work at that time. And that the period from which claimant had to give notice began running in September, 1977. Claimant filed a claim with the Commission on May 27, 1978.

Among the exceptions to the requirement in Section 81-1317(a) that notice of injury or death be given within sixty days after the date of such injury or death is subsection (c)(2) which provides that such failure of notice may be excused.

”... if the- Commission determines tnat the employer has not been prejudiced by failure to give such notice, ...”

In its opinion the Commission made the following findings:

It is our view that claimant comes within this exception. It is clear in the claimant’s testimony that she never really associated her back pain with any injury in the sense that the word would likely be comprehended by the lay mind. Claimant felt that she suffered from arthritis and was in fact told this by Dr. Ingram in October, 1977. After a brief absence from work following this episode and after working for a few more months she again saw Dr. Ingram who referred her to Dr. Peter Irwin, an orthopedic specialist, in March, 1978. His diagnosis was of “degenerative disc disease, L5-S1.” Claimant has not worked since March, but upon her quitting work she sought benefits under a union insurance program. Although she received one check, she was notified by her union that her benefits should be discontinued because of a letter they received from Dr. Irwin indicating claimant’s disability to be work-related. They suggested that claimant apply for any benefits to which she felt entitled under the compensation policy carried by respondent-carrier. It was at this point that the claimant filed for compensation benefits.
Claimant was not in a position to give notice of injury because she wasn’t aware, until notified by her union, that she had a claim cognizable under workers’ compensation. Respondents were not prejudiced by this failure of notice — it hasn’t deprived them of an opportunity to prepare a defense and to deny the claimant a hearing under these circumstances would be unfair. Claimant neglected to report her disability as work-related only because she never felt it to have been an “injury’ ’ as that word is commonly understood.

As there is substantial evidence to support this determination of the Commission, we find no merit in the argument made by appellants that appellee’s notice of injury to the employer was not timely filed.

Appellants also argue that the other findings of the Workers’ Compensation Commission are not supported by substantial evidence, and must therefore be reversed. We cannot agree. See Bettendorf & Co. v. Kelly, 229 Ark. 672, 317 S.W. 2d 708, for definition of accidental injury within the meaning of the act. Also W. Shanhouse & Sons v. Sims, 224 Ark. 86, 272 S.W. 2d 68, as to proof required to establish date of injury.

The Commission was obligated in this case to resolve in claimant’s favor any reasonable doubt as to whether the aggravation of a pre-existing condition grew out of and occurred within the course of her employment. Brooks v. Wage, 242 Ark. 486, 414 S.W. 2d 100. And on appeal from a decision of the Workers’ Compensation Commission, this court must view the testimony in the light most favorable to Commission’s findings, and will draw all reasonable inferences in that light. Purdy v. Livingston, 262 Ark. 575, 559 S.W. 2d 24. If there is any substantial evidence to support the Commission’s findings, its decision must be affirmed. Barksdale Lumber Company v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977), Meadors Lumber Co. v. Wysong, 262 Ark. 425, 557 S.W. 2d 395 (1977).

Dr. Irwin was questioned concerning a causal relationship between appellee’s employment and her condition, as follows:

Q. Dr. Irwin, as I understand her (claimant’s) condition is a congenital type condition?
A. Part of it is sir, yes sir.
Q. What part of it is and what part of it isn’t?
A. Well I have to clarify that a little bit. It’s not basically a congenital problem so we will call it a developmental problem. . . . She has a developmental problem which is a curvature in her back and they call this an idiopathic scoliosis.. . . Because of the scoliosis, which is a side-ways curvature in her back, there’s an awful lot of stress placed át the lower part of the back and because of this, there’s a disc place there between the fifth lumbar and first sacral vertebrae begins to wear out, this is where the diagnosis of degenerativé disc disease comes from.
Q. You’ve never made any contention have you Doctor that this was caused by her employment?
A. Not to my knowledge sir.
Q. The only thing you are saying is, that you feel like the things that she did in her employment aggravated these pre-existing condition of scoliosis and degenerative disc disease?
A. Yes sir.

After a careful review of the evidence and resolving all reasonable doubts in favor of the Commission’s findings, we have concluded that there is substantial evidence to support the opinion and award made by the Workers’ Compensation Commission.

Affirmed.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. While I recognize a decision of the Workers’ Compensation Commission has the same effect as ajury verdict, I cannot agree there is substantial evidence to support a finding the claimant suffered a compensable injury on or around March 1,1978. There is no evidence to support the claimant’s contention she ever reported a back injury to her employer, to the plant nurse, or to fellow workers.

There is no basis in the record for the finding the claimant suffered an injury arising out of and in the course of her employment on March 1,1978. While it is not necessary for a claimant to point with absolute certainty to a specific time of injury, the claimant must still point to some injury or incident. The testimony of Dr. Irwin indicates the claimant has a developmental arthritic problem and that her job could have aggravated this condition resulting in her back problems. To make an award for the aggravation of a pre-existing condition, however, there must be a ‘ ‘reasonably clear history’ ’ of some injury or occurrence. Green v. Lion Oil Co., 215 Ark. 305, 220 S. W. 2d 409 (1949); Tri-State Construction Co. v. Worthen, 224 Ark. 418, 274 S.W. 2d 352 (1955). More is required than a doctor’s opinion, based upon the facts as related to him by the claimant, to show the aggravation of a pre-existing condition. It is necessary to show some incident which precipitates the aggravation.

Furthermore, the claimant never alleged an injury occurred on March 1, 1978. The claim for benefits alleged the injury occurred in September of 1977. The Workers’ Compensation Commission had no evidence on which to date the injury as occurring on March 1, 1978.

I find there to be no substantial evidence to support the award. I would reverse and dismiss the claim. Therefore, I respectfully dissent.


author: Marian F. Penix, Judge.

text:
    Lydianna BOENSCH v. Clint CORNETT and Shirley CORNETT, husband and wife
    CA 79-134
    590 S.W. 2d 55
    Opinion delivered October 31, 1979
    Rehearing denied December 5, 1979
    Released for publication December 5, 1979

      Festus H. Martin, for appellant.

      Robert L. Whitlock of Everett & Whitlock, for appellees.
   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that Court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

On November 1, 1977 Lydianna Boensch entered into an alleged contract with Clint and Shirely Cornett agreeing to sell real property to the Cornetts. Mrs. Boensch, a licensed real estate agent, had listed the property with Schultz and Taylor, Inc., of Fayetteville, for.whom she worked. Another licensed agent, Gary Griffin, presented an offer and acceptance dated November 21, 1977, signed by Clint Cor-nett and Shirley Cornett, to Lydianna Boensch which she signed. The written statement described the property thus:

The real property and improvements belonging to Mrs. Lydia Boensch containing all the property located south of a country road dividing the total estate, that part being between 85 and 90 acres more or less.

The agreement further provided the Cornetts were to pay $37,500.00 for the property. $10,500 was to be in cash and the balance of $27,000 was to be two equal payments of $13,500, the first payment due and payable exactly (1) one year after closing date and the second payment due exactly one year after the first payment. The Cornetts paid Mrs. Boensch $5,000 of the earnest money and tendered the balance of $5,500 on November 30. Mrs. Boensch refused to accept the $5,500 and also refused to convey title to the Cornetts. The Cornetts brought suit for specific performance. Mrs. Boensch raised the affirmative defense of the Statute of Frauds. Based upon Cornetts’ complaint, exhibits, request for admissions of fact served and answered by Mrs. Boensch and the allegation there remained no genuine issue of material fact, the chancellor granted a summary judgment.for the Cornetts.

The chancellor ordered Mrs. Boensch to furnish Cornetts with an abstract of title within one week from date of decree. The decree further provided if the abstract was not merchantable the Cornetts were entitled to a return of earnest money, and if it was merchantable Mrs. Boensch must convey the property to the Cornetts upon payment of the remainder of the $5,500 down payment.

Mrs. Boensch appeals alleging the offer and acceptance agreement signed on November 21, 1977 is void under the Statute of Frauds. Mrs. Boensch’s reasons for reversing the summary judgment are:

1. There is no key in the description in the offer and acceptance itself from which the property can be located and identified.
2. The court erred in finding a key to the description from pleadings rather than from the contract itself.
3. Partial payment of earnest money and a willingness to continue under the contract are not sufficient partial performance to remove this transaction from the Statute of Frauds.

In order to be enforceable, a contract for the sale of land must comply with the Statute of Frauds. [Ark. Stat. Ann. § 38-101]. This requires the memorandum to be in writing, to be signed by the party to be charged, and to contain all the essential terms. Reynolds v. Havens, 252 Ark. 408, 479 S.W. 2d 528 (1972). A description of the land to be conveyed is an essential term. The issue in this case is whether the description contained in the offer and acceptance is adequate. We believe it is.

While extrinsic evidence may not be used to add to or change a deficient description, it may be used to decipher or make intelligible the terms of the contract. We believe the meaning of the description becomes plain and certain when the circumstances surrounding the negotiations and writing are disclosed. The circumstances demonstrate the parties had no doubt as to the piece of land being bought and sold. Extrinsic evidence can be used to clarify the description. Moore v. Exelby, 170 Ark. 908, 281 S.W. 671 (1926).

If the memorandum furnishes a means by which the realty can be identified, it need not describe the property with the particularity required for deeds. The writing itself provides the key to the description. “The real property and improvements belonging to Mrs. Lydia Boensch” is the phrase which permits extrinsic evidence to be introduced to make intelligible this description. We believe the line of Kentucky cases to be persuasive on this point. In Burton v. Lafavers, 254 S.W. 2d 730 (1953), the Court of Appeals of Kentucky stated, “ . . . the description is regarded as sufficient if it identifies the property when it is read in light of the circumstances of possession or ownership and of the situation of the parties when the negotiations took place and the writing executed.” Here extrinsic evidence demonstrates Mrs. Boensch, a licensed real estate agent, owned only one piece of property. This property was divided by the Cove Creek Road in Washington County. The southern part of this property contained approximately 85 acres. The use of the admissions of fact as extrinsic evidence to explain the description was proper.

We believe the memorandum satisfies the Statute of Frauds. Therefore we need not discuss the issue of partial performance. The granting of specific performance was permissible.

Turning to the cross appeal, we believe the chancellor erred in forcing the Cornetts to elect their remedy prior to trial. Jurisdiction was proper in the Court of Equity. Once jurisdiction attaches, the Clean Up Doctrine permits the Chancery Court to consider all facets of the matter in controversy. Smith v. Dixon, 238 Ark. 1018, 386 S.W. 2d 244 (1965); Ashworth v. Hankins, 241 Ark. 629, 408 S.W. 2d 871 (1966). While the Cornetts may not avail themselves of both remedies, the election may be held in abeyance until it can be determined whether specific performance is available. The chancellor is directed to determine if specific performance is possible. If this remedy is no longer available, it must be determined whether damages should be awarded due to the breach of contract.

Affirmed in part; Reversed in part.


author: George Howard, Jr., Judge.

text:
    Johnny THORNTON v. STATE of Arkansas
    CA CR 79-20
    590 S.W. 2d 57
    Opinion delivered October 31, 1979
    Released for publication December 5, 1979

      Gary R. Gibbs, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, for appellee.
   George Howard, Jr., Judge.

On September 13, 1976, appellant entered a plea of guilty to á charge of Criminal Use of a Prohibited Weapon. He was sentenced to a term of three years to the Department of Correction, which was suspended on condition of his good behavior, and fined $ 100.00.

On April 5, 1979, the Prosecuting Attorney of Garland County filed a petition for revocation of appellant’s suspended sentence. A hearing was conducted on September 16,1979, resulting in the revocation of appellant’s suspended sentence and a sentence to the Department of Correction for one year. The trial court found, as ajustification for revoking the sentence, that appellant had possessed a controlled substance, marijuana, and had committed a battery upon the person of Quana Mershell.

Appellant’s argument for reversal may be briefly summarized as: Appellant was never processed for probation and, consequently, the court could not revoke that which has never been granted or instituted; the trial court erred in finding that appellant had been provided with a written statement containing the conditions under which his suspended sentence was predicated as required by Ark. Stat. Ann. § 41-1203 (1977 Repl.); and the court erred in finding that appellant had inexcusably failed to comply with the conditions of his suspended sentence.

After reviewing the record, we are persuaded that appellant’s contentions are without merit and we affirm the trial court.

The record shows that when appellant received the suspended sentence, the trial judge carefully and clearly advised appellant what was expected in order for him to remain on probation. The court stated, among other things, that appellant must support his dependents and not violate the law in any form or fashion. After this admonition, the court asked appellant whether appellant understood the conditions of his probation. Appellant replied that he did. The court then requested the appellant if there were any questions that appellant wanted answered or matters clarified, and the appellant responded by saying “no.”

While the record does not reflect that appellant ever had a conference with the probation officials, or that appellant actually received documents articulating the conditions of his probation, we are persuaded that this omission does not vitiate appellant’s suspended sentence and probation which was granted in open court and in the presence of appellant. It must be remembered that only the trial judge has the discretion to suspend the imposition of a sentence and grant probation. Probation officers, on the other hand, supervise and aid probationers and make periodic reports to the court regarding the progress that a probationer is making. Moreover, it is readily understandable why there was, perhaps, no communication between appellant and the probation officials. Appellant, at the time of his trial, was on parole under a sentence in the State of Texas and the Texas authorities were interested in having appellant returned to Texas in connection with a possible parole violation. As a matter of fact, appellant was returned to Texas within a matter of days after his appearance before the trial judge. Under these circumstances, we are unable to see how appellant was prejudiced in any way assuming, without deciding, that appellant was not afforded a written document containing what was expected and required of him under his probation in Arkansas. Indeed, it is clear that there was substantial compliance with the requirement that appellant be advised explicitly with reference to the conditions under which he was being released.

Finally, we are convinced that the trial court’s finding that appellant had inexcusably failed to comply with the conditions of his probation is supported by a preponderance of the evidence.

Quana Mershell testified that while she was visiting in appellant’s apartment, appellant gave her marijuana to smoke; and that during the course of the night, the appellant struck her at least ten times with his fist and open hand. Appellant denied that he had marijuana in his possession and further denied that he struck Quana. The trial court, obviously, disbelieved the appellant’s version of the incident while accepting the testimony of Quana. The trial court was presented with a fact question and it was the court’s responsibility to resolve the conflict and determine the credibility of the witnesses.

Appellant argues that inasmuch as Quana admitted smoking marijuana, she was an accomplice and her testimony is insufficient to -support the action of the trial court. We reject this argument. It must be remembered, that a defendant, in a revocation proceeding is not being tried on a criminal charge — in the instant case, possessing marijuana and battery — where the defendant’s guilt has to be established beyond a reasonable doubt, but here, only a preponderance of the evidence is necessary to support a finding that a probationer has inexcusably breached a condition associated with his release resulting in a revocation order. Moreover, it must be remembered that when a person is on probation, his liberty is conditional as distinguished from being absolute.

Affirmed.


author: David Newbern, Judge.

text:
    Lonnie COSSEY v. STATE of Arkansas
    CA CR 79-56
    590 S.W. 2d 60
    Opinion delivered October 31, 1979
    Released for publication December 5, 1979

      Robert E. Irwin, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

The appellant was convicted in Russellville Municipal Court of driving while intoxicated. He appealed and was again convicted after a jury trial de novo in the circuit court, and he was fined $500. It was allegedly his second such offense. The appellant contends his arrest by a Russellville city policeman outside the city limits was illegal. He also contends that evidence based on a gas chromatograph test of his breath should not have formed the basis of an instructed presumption of intoxication because the machine used was not calibrated on the day the test was given. Because we find it necessary to reverse on the inadequacy of the breath test as a basis for the presumption, we will not need to deal with the arrest question.

The appellant was arrested and tested for bodily substance (breath) alcohol content on May 13, 1978. Although there was some testimony as to his actions and appearance indicating he had been drinking, the appellee rests its argument here on the correctness of the jury instruction of the presumption of intoxication based on the gas chromatograph test. The authority for the presumption is Ark. Stat. Ann. § 75-1031(1) (Supp. 1977), which provides, in part, the following:

(A) In any criminal prosecution of a person charged with the offense of driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant’s blood at the time alleged as shown by chemical analysis of the defendant’s blood, urine, breath, or other bodily substance, shall give rise to the following presumptions:
* * *
3. If there was at that time, 0.10 percent or more by weight of alcohol in the defendant’s blood, urine, breath or other bodily substance, it shall be presumed that the defendant was under the influence of intoxicating liquor.
* * *
(c) The chemical analysis referred to in the above paragraphs shall be made by a method approved by the Arkansas State Board of Health. The method approved may be proved by a certificate duly acknowledged by a representative of the State Board of Health and said certificate shall be admissible per se in any criminal prosecution and shall not be subject to any objections on grounds of hearsay. Provided, however, said machine has been duly certified at least once in the last three months and the operator thereof is properly trained and certified. This law shall apply only in misdemeanor cases and not in felony cases.

Ark. Stat. Ann. § 75-1046(b) (Supp. 1977), says that for such an analysis to be valid, it must have been “performed according to methods approved by the State Department of Health or by an individual possessing a valid permit issued by the State Department of Health for this purpose ...” The statute provides the department may approve measuring methods or techniques and, in part “(c),” may “promulgate rules and regulations necessary to carry out the purposes of [the] act.”

Arkansas Department of Health Regulation, AP-340 (Rev. 1971), provides:

Breath Testing Instruments. Instruments designed to test direct breath samples shall be calibrated no less frequently than once each day the instrument is in operation by a Senior Operator or Operator Supervisor, using appropriate solutions of ethyl alcohol, and using methods and techniques for calibration recommended by the manufacturer of the calibration device as approved by the Department.

In this case, the evidence was that the machine was calibrated on May 10 and May 15,1978, but not on May 13,1978, the day the appellant was tested.

Of course, the appellee does not argue that because the operator was certified he could disregard the health department regulations dealing with the method of testing for alcohol presence. Although the language of the statute is disjunctive, we find the intent of it to be that even certified operators may not ignore the regulations on operation and maintenance of the chromatograph, if their testimony is to form the basis of a presumption of intoxication.

The appellee argues, however, that there has been “substantial compliance” with the regulations, citing Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975). The Munn Case concerned a finding by the court that there was no prejudicial effect where a blood sample was not tested within two hours of the alleged offense as required by health department regulation. The sample was taken about 12:40 a.m., and the alleged offense occurred at 9:30 p.m. the previous evening. Testing within this three-hour period was held to have been substantial compliance with the two-hour requirement where the testimony indicated that all other requirements were met and that blood alcohol content decreases as time passes.

We cannot find substantial compliance here, however. All we know is that the instrument was calibrated on May 10 and again on May 15. Although there is some testimony that the calibration procedure revealed, on the 15th, that the instrument was in the same, proper condition it had enjoyed on the 10th, in view of the clear requirement of the regulation, we should not allow speculation as to its condition on May 13. We hold there was no substantial compliance here, and unlike the Munn Case, there is no evidence upon which we can conclude this failure to abide by the regulation was not prejudicial to the appellant.

In addition, the appellant vigorously complains there was no testimony given that a measurement of body substance alcohol content “by weight,” as required by the statute, was conducted. As the trial judge stated in the record before us, this may raise a serious question of testimony adequate to raise the statutory presumption, but we need not address it in view of the other inadequacy we have found.

We hold the evidence was not sufficient to form the basis of the instructed presumption. The other evidence produced in the case would not have supported a guilty verdict, and because we find the case has been fully developed, we dismiss rather than remand for new trial. Edens v. State, 235 Ark. 284, 357 S.W. 2d 641 (1962). See also, Paschal v. State, 245 Ark. 396, 432 S.W. 2d 879 (1968).

Reversed and dismissed.


author: PER CURIAM Marian F. Penix, Judge,

text:
    Vickey DEATHERAGE v. Charles L. DANIELS, Director of Labor and L. T. TINER
    CA 79-99
    590 S.W. 2d 62
    October 31, 1979
    Released for publication December 5, 1979
    Appellant, pro se.

      Herrn Northcutt, for appellee.
   PER CURIAM

The appellant was employed as a legal secretary by the law firm of the appellee, L. T. Tiner. The appellant applied for employment security compensation because of her alleged dismissal from her employment. The appellee, Mr. Tiner, contends she left her employment voluntarily. The appellant was denied compensation, and an appeals referee found she had voluntarily left her job and was thus ineligible for compensation. Section 5(a) of the Employment Security Act provides an employee who quits work without good cause connected with the work is disqualified. Ark. Stat. Ann. § 81-1106(a) (Supp. 1979). The referee’s finding was affirmed by the Board of Review. We must determine whether the record contains substantial evidence to support the conclusion that the appellant left her work voluntarily. Terry Dairy Products Co., Inc. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955).

The appellant, who was a full-time employee, testified she spoke with her employer, Mr. Tiner, on a Friday afternoon and asked him “how. he would feel” about her becoming a part-time, rather than full-time employee. She explained to him that she wanted time to get started in her own insurance business. She testified further that his response was that it would be “fine’ ’ with him, but he wanted to check with his associate in the firm, and he would call her Monday. The appellant testified Mr. Tiner did not call her the following Monday, and that she had great difficulty getting in touch with him, but that she finally did so several days later.

Mr. Tiner took the position below, and the Director of Labor takes the position, here, that the appellant left her employment voluntarily. At the hearing, Mr. Tiner did not deny telling her he “did not need her” anymore when the appellant spoke with him the week following their Friday afternoon conversation. When asked by the referee why he had told the appellant that, Mr. Tiner replied that the appellant had been out looking for other jobs, that she had used his telephone for personal calls and had on one occasion lied to him about her reason for being absent from work.

Although those statements about the appellant might have contributed to a contention that she was terminated by her employer for cause, that was not the issue below or here. The sole question is whether there is substantial evidence the appellant left her work voluntarily. There is not. The statements made by Mr. Tiner were conducive to a conclusion he terminated this employee. At no point did he state he had given her a choice between full-time employment and termination. Nothing contradicts her alleged assumption she still had a job, at least on a part-time basis, until Mr. Tiner told her he no longer needed her.

Reversed with directions to the Employment Security Division, Department of Labor, to award unemployment compensation to the appellant to the extent she is entitled to it consistent with this decision.

Judge Penix dissents.

Marian F. Penix, Judge,

dissenting. It is not unreasonable for an employer to expect his employee to be available for work the hours and days for which she is hired. In this case Ms. Deatherage indicated she was seeking other employment. Under such circumstances her employer was under no obligation to wait around wondering whether or not he still could rely on Ms. Deatherage. In order to run an efficient law office, an employer must have a reasonable assurance his secretary will-be available for work and will not be out looking for other employment. Ms. Deatherage’s initiative in seeking other employment is tantamount to her quitting her job voluntarily.

I respectfully dissent.


author: PER CURIAM

text:
    Mary B. JACKSON v. Charles L. DANIELS, Director of Labor, State of Arkansas and DONOVAN’S INN
    CA 79-205
    590 S.W. 2d 63
    October 31, 1979
    Released for publication December 5, 1979

      Appellant, pro se.

      Herrn Northcutt, for appellees.
   PER CURIAM

The claimant has appealed from a decision of the Board of Review affirming the Appeal Tribunal of the Arkansas Employment Security Division which held that the claimant was ineligible for benefits under Section 5(a) of the Arkansas Security Law until she had thirty days of covered employment. The determination of the Appeal Tribunal was that the claimant voluntarily left her employment without good cause connected with the work.

The claimant had been employed at Dee Dee’s Restaurant (now Donavan’s Inn) and recently had become manager. In this position she had hired two employees. The restaurant was then acquired, unexpectedly it appears, by Mr. Ivan Rodenz.

On July 6, 1979, the claimant’s employment terminated and she filed for unemployment benefits, giving as the reason for separation: “Laid off, lack of work.” The response of the employer was that claimant “asked to be the first one laid off.”

The claimant testified that, under the impression that the staff was to be reduced, she told Mr. Rodenz that if he needed to lay someone off, she hoped it would be her as she hated to see. the two employees laid off whom she had so recently hired.

The employer testified that it was necessary to lay off “quite a few” and in answer to whether he would have retained the claimant had she not made the statement, he answered, “It is hard to say because it would have caused a little friction having them as managers for two days and then being replaced by somebody else, it would have been difficult for her to really put forth complete effort for me.”

On this testimony the Appeal Tribunal determined that claimant had voluntarily left her employment, stating that the Tribunal has consistently held that where a worker notifies his company that he wants to be. laid off, he has, in effect, brought about his own separation.

We see an appreciable difference in an employee communicating directly to an employer that he wishes to be laid off and what occurred in this case.

Here the employee simply expressed the preference that if anyone was laid off, she hoped it would be her. This is hardly the same as a direct request to be laid off. Furthermore, in this claim it is admitted that a reduction in staff of at least three employees was necessitated at the decision of the employer. The fact that the claimant preferred to be one of them rather than those she had hired does not alter the underlying fact that her employment ended by reason of work reduction and not, as the Appeal Tribunal stated, for personal reasons.

Reversed with directions to enter the appropriate order awarding unemployment compensation to claimant as she may b¿ eligible.


author: Ernie E. Wright, Chief Judge.

text:
    C. W. SPRATT v. STATE of Arkansas
    CA CR 79-7
    590 S.W. 2d 65
    Opinion delivered November 7, 1979
    Released for publication November 28, 1979

      James W. Haddock of Holloway & Haddock, for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Jr., Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

This appeal to the Arkansas Supreme Court has been assigned to the Court of Appeals pursuant to Rule 29(3).

Appellant was convicted by a jury in Chicot County Circuit Court of battery in the first degree in violation of Ark. Stat. Ann. § 41-1601, and from the judgment brings this appeal asserting the following point for reversal.

The trial court erred by reading two separate and distinct charges and informations against the appellant to the entire prospective jury panel and the prosecuting attorney in his voir dire made mention of separate and distinct felony charges pending against the appellant other than the charges of one felony to be tried on March 29, 1979 in the Circuit Court of Chicot County, Arkansas.

In addition to the charge of first degree battery, appellant was subsequently charged in a separate information with the offense of terroristic threatening against the same individual involved in the battery charge.

At a pre-trial hearing on February 23, 1979 with counsel for the State and appellant present and participating, the court, without objection, set both cases for trial on March 29, 1979 at 1:00 o’clock P.M. The order setting the cases for trial included the docket number of both cases and bore the clerk’s notation that copies of the order were mailed to the attorneys on February 23, 1979. The order contained a provision stating, ‘ ‘ No change in this setting will be. made except on written order of the court obtained not less than five (5) days prior to trial.”

On trial date, upon all parties announcing ready for trial, the judge proceeded with preliminary steps to qualify a jury for the joint trial of the two cases pursuant to the prior order setting them for trial at the same hour, and read to the jurors the two charges against appellánt. Counsel for appellant then announced he was not aware the charges were to be tried together, and moved to sever and for a mistrial because of both charges being read to the jury. The court granted separate trials, and announced the battery charge would be tried. The judge, out of the presence of the jury, overruled the motion for mistrial.

The prosecuting attorney during voir dire asked a question of a juror to clarify whether the juror was referring to the battery charge or the other charge in stating he had knowledge of the matter. The juror was excused by the judge.

Appellant argues the reading of the two charges by the judge and the reference to the second charge by the prosecuting attorney during voir dire constituted prejudicial error.

The appellant had knowledge as early as February 23, 1979 that the cases were set for joint trial on the same date and hour. He had ample opportunity to request separate trials and did not do so. We conclude under the circumstances here, the appellant invited any error in both charges being read to the jury. After charges had been read, no prejudice resulted in the prosecuting attorney inquiring of the juror on voir dire as to which charge he had knowledge. The juror had not identified the charge as to which he had knowledge. The appellant made no request for an admonishment by the court to the jury to disregard any mention of any second charge. Randle v. State, 245 Ark. 653, 434 S.W. 2d 294 (1968).

Affirmed.