author: M. Steele Hays, Judge.

text:
    TRAVELERS INSURANCE COMPANY v. Steve HEIDELBERGER
    CA 79-60
    593 S.W. 2d 70
    Opinion delivered January 9, 1980
    Released for publication January 30, 1980

      Southern & James, for appellant.

      Mike J. Etoch, Jr., for appellee.
   M. Steele Hays, Judge.

This is an appeal of a worker’s compensation case. The Administrative Law Judge awarded benefits for medical expenses and temporary total disability for a period of ninety days while claimant was recuperating from an ulcer condition. On appeal to the Full Commission, the opinion of the Administrative Law Judge was affirmed with one Commissioner dissenting. The respondent-carrier appeals from the award of the Full Commission.

The claimant is 47 years old and has been employed by Mohawk Rubber Company at Helena for some 19 or 20 years as a bead insulator operator. His stomach trouble was recognized about the middle of March of 1978. Claimant was hospitalized for approximately two weeks and was off an additional three weeks before returning to work. Claimant returned to work feeling well, but the condition flared up again, and he returned to the doctor for treatment in July. Believing his job was affecting him, claimant took three weeks of earned vacation time and felt better but when he returned to work, “job related tension” caused the ulcer to flare up. Claimant testified that the job was not the cause of his ulcer but that it did cause the condition to flare up.

Claimant’s job as a bead operator was described by him as one requiring very exacting performance using a complicated machine that was often inoperative. Additionally, the entire plant was dependent on the successful operation of the machine. Claimant’s testimony was that his family life was happy and content and that aside from the plant, he knew of nothing that caused him irritation and stress.

Appellant contends on appeal that there is no substantial evidence, to support the award and that claimant failed to prove causation of an injury arising from the employment.

As to the substantial evidence argument, we agree with appellant that the evidence that claimant’s condition was caused by his employment is very nearly lacking in substantiality. However, while we agree with appellant and the dissenting commissioner that claimant’s testimony is of no probative value as to causation, his testimony regarding the stress and pressures of his job and its effect upon him is relevant and is of evidentiary value. Taken alone, it would fall far short of meeting the quantum of proof required, even in the worker’s compensation cases, but it is not alone, for there is the testimony of Dr. James R. Rasch, a physician selected by the appellant sol.ely for the purpose of examining the claimant, and it supplies the degree of medical opinion to support the award.

Appellant argues that Dr. Rasch’s testimony fails to state that claimant’s condition was work related to a “reasonable medical certainty,” but it is clear from a careful reading of Dr. R^sch’s testimony in its entirety .that he attributes claimant’s condition to his employment. Dr. Rasch is a specialist in internal medicine and obviously familiar with peptic ulcer disease and its etiology. Speaking generally of ulcer disease, Dr. Rasch .stated: “There are a number of factors that undoubtedly contribute to ulcer diseases, certainly stress is a significant factor. We know there is a definite association between the emotional center and the gastrointestinal tract in particular, peptic ulcer disease. (Portion omitted) . . . but we feel that this is a big relationship between environmental factors and stress and this is something that is difficult to determine objectively. But, it is definite. ”

Speaking specifically of claimant, Dr. Rasch stated:

Q. Doctor, in your reports you give a possibility of several causes. It’s not your opinion that the work is the only cause, is it.
A. That would be the only cause that I could put my finger on. Obviously there was something in the work situation, that caused him enough emotional strain that his ulcer reactivated. If there were other factors, we couldn’t identify them, as I specifically tried to identify circumstances and his family ties, his family life circumstances with respect to his finances, anything I might be able to put my finger on, that would be contributory and I couldn’t get any leads. I think it also was, that I mentioned when his physician recommended that he stay off from work, that he healed up.

Later, Dr. Rasch stated:

Q. I believe you said that job related stress and strain is a very definite causal connection . . . in peptic ulcers. Is that not true. Is that the way I interpret it to be correct.
A. Right, I believe there is.
Q. Speaking in this specific case, is this your feeling that the stress and the strain that you found him to relate to his job was a causal connection with regard to the ulcers that he had.
A. As I wrote in the comments, most likely.

Additionally, Dr. Rasch’s viewpoint is supported by another medical opinion, as the record contains a written report from Dr. J. H. Barrow of Helena dated July 13,1978, which, though brief, reflects an opinion on his part that claimant had a partial obstruction due to an ulcer which was the result of work related tension.

We find this evidence to be sufficient. It might be added that if there were unresolved doubts as to causation, it seems clear that the evidence present in this record would suffice as a matter of aggravation. It has been said repeatedly in the decisions of this state that the law does not require that a claimant be compelled to offer proof to a mathematical certainty. Herron Lumber Company v. Neal, 205 Ark. 1098 (1943). In Neal the court said:

The rule as to the quantum of proof necessary to sustain an award in a case of this kind is thus expressed in 71 C.J.S. 1087: In determining the sufficiency of evidence, doubts should be resolved in favor of claimant, and the evidence should be reasonably and liberally construed in his favor.

That approach to worker’s compensation cases is firmly established in this state. Hixson Coal Company v. Furstenberg, 225 Ark. 568, 284 S.W. 2d 120 (1955); American Casualty Company v. Jones, 224 Ark. 731, 276 S.W. 2d 41 (1955).

Appellant argues that there is an absence here of a specific traumatic incident to which claimant’s ulcerated condition could have been found as related in a natural and continuous sequence of events. It is true that a number of jurisdictions have held that to be compensable, an injury must have occurred either with suddenness, or as a result of an isolated episode or trauma, and there is a lack of uniformity in decisions dealing with this issue. 99 C.J.S. Workmen’s Compensation 165, et seq. However, Arkansas has taken the more liberal route in this regard, Murch-Jarvis Company Inc. v. Townsend, 209 Ark. 956, 193 S.W. 2d 310 (1946), and has adhered to it faithfully in the cases following Murch-Jarvis [See Batesville White Lime Company v. Bell, 212 Ark. 12 (1947); Triebisch v. Athletic Mining & Smelting Compnay, 218 Ark. 379 (1951); Scobey, Adm. v. Southern Lumber Company, 218 Ark. 671 (1951); Stanhouse & Sons, Inc. v. Simms, 224 Ark. 861 (1954).]

In Murch-J arvis, the claim arose from the gradual inhalation of dust and fumes with resulting bronchial problems. The respondent argued that claimant did not suffer an accidental injury because no definite date or occasion could be fixed as to when the aggravation occurred, citing Professor Schneider, Vol. 4, Perm. Ed., p. 387 (“Diversity of opinion exists as to what constitutes the customarily required definite time and place of an accident. On this question expressions of the courts may vary from the statement that accidents do not happen all day to decisions to the effect that it may require as much as six months for an accident to culminate in an injury. A reasonably definite time is all that is required.”) The court held that the condition was accidental within the Arkansas Workers’ Compensation Act.

In Batesville White Lumber Company, the claimant was upheld based on breathing in dust over a period of years. The opinion quoted with favor the case of McNuley v. Carolina Asbetos Company, 206 N.C. 568, 174 S.E. 509, in which pulmonary diseases followed five months exposure to asbestos dust.

In Scobey, supra, the claimant’s death was shown to be the result of carcinoma of the lungs attributable, according to some testimony, to breathing in emery dust. The court said that because it took the cancer a year and a half to kill claimant does not make it any less an accident.

Finally, in Stanhouse, supra, claimant suffered from emphysema of the chest, gradually acquired from work conditions. In upholding an award of compensation, the court commented:

In construing the Workmen’s Compensation Act, our cases are precise to the point that in this jurisdiction we do not require an injured workman to point specifically to a single incident before he can be heard before the Commission or our Courts. We have long adhered to the rule that an accidental injury may stem not only form a specific incident dr a single impact, but also may result by a continuation of irritation upon some part of the body.

For the reasons stated above we find that there is substantial evidence that claimant sustained an accidental injury and, therefore, we affirm the Commission’s holding.


source: Caselaw Access Project

author: James H. Pilkinton, Judge.

license: Public Domain

text:
    Lloyd L. LEWALLEN and Betty LEWALLEN v. Delta L. BETHUNE, Administratrix of the Estate of Thema LEWALLEN, Deceased
    CA 79-167
    593 S.W. 2d 64
    Opinion delivered January 9, 1980
    Released for publication January 30, 1980

      Wilson & Grider, for appellants.

      Simpson & Riff el, for appellees.
   James H. Pilkinton, Judge.

On January 25, 1971, and during the lifetime of the late Thema Lewallen, a suit was filed in the Randolph Chancery Court by the present appellee, Delta L. Bethune, against the present appellants, Lloyd L. Lewallen and Betty Lewallen, involving practically.all of the issues in the present case. Sometime after the filing of the original case, Mrs. Thema Lewallen died, and on October 19, 1972, an order of revivor was entered. No action was taken by either of the parties through the greater part of 1975, On November 19, 1975, the case was dismissed. Then on November 17, 1976, just two days before the action would have been barred by the statute of limitations, Lloyd Lewallen and Betty Lewallen filed this suit, using their original counsel. Thereafter, original counsel withdrew from the case, and by motion of the plaintiffs, present counsel for appellees was substituted and took over the case. Also, Mr. George Rawlings of Louisville, Kentucky, was noted as co-counsel for plaintiffs-appellees.

The plaintiffs took no action to prosecute their case, and the court noted by docket entry dated November 15, 1978, that the cause would be subject to dismissal for want of prosecution unless set for trial promptly. It was finally set for December 20, 1978 for a trial oil the merits.

During the afternoon of December 18,1978, defendants below, who are appellants here, filed a motion asking the regular Chancellor to disqualify himself or to withdraw from hearing the case. The matter of disqualification of the presiding Chancellor was heard at 9:30 a.m. the next day, December 19,1978, but this proceeding was not reported by the court reporter, and the Chancellor did not act upon the motion for disqualification at that time. The cause came on for further hearing the following day, December 20, which was the date previously set for trial on the merits.

On December 20, 1978, when the parties and attorneys for the respective sides appeared, the Chancellor on his own motion took note of the large number of witnesses who had been subpoenaed, and were present in the courtroom, to testify in the case in chief. Also, the court took note of the out-of-county parties, and out-of-state witnesses who were present to testify, and the presence of the out-of-state attorney, Mr. George Rawlings, of Louisville, Kentucky, who was there as co-counsel for plaintiffs below (appellees here). The trial court made the following statements:

I want the record to reflect that on this 20th day of December, 1978, this cause comes on the Court’s own motion in the case of Bethune Administratrix vs. Lloyd Lewallen and Betty Lewallen, Number E-76-134. Mr. Jarboe and Mr. Throesch on behalf of Lloyd Lewallen and Betty S. Lewallen have filed a motion asking this Court to recuse for a number of reasons. Mainly that this Court when practicing law prepared some of the instruments and allegedly represented one of the parties. Now, of course, if that were true, the Court would welcome it, and if it were timely filed, the Court would welcome it because the Court does not know the facts in the cases. This has caused the Court to conduct a review of the files and finds that this case was originally filed on January 25, 1971, as Randolph County Chancery Case Number 2201, and no action was taken on the case by the attorneys for either party through 1975. In 1975 this Court caused notice to be given to the plaintiffs that the case would be dismissed if no action was taken. No action was taken by the plaintiffs and on November 19, 1975 the case was dismissed.
Then on November 17, 1976, just two days before the running of the Statute of Limitations the plaintiff again filed this suit. An answer was filed on December 2,1976 which is more than two years ago. The attorneys in the case were warned that if the case was not tried this year, it would be dismissed, and the case was set for today December 20, 1978.
Even though the issues have been joined, and the case is seven years old, at 1:30 on the afternoon of December the 18th, the attorneys for the defendants, Mr. Jarboe and Mr. Throesch, filed a motion as stated asking this Court to recuse for the reason that nine years ago the court had allegedly prepared one of the instruments involved. The motion is untimely filed, and the Court has servious concerns about it. As a matter of fact it causes the Court to have serious questions about the applicable conduct of the two attorneys in the manner this is handled.
The Court heard the motion yesterday morning at 9:30, and the defendant put on no proof whatsoever. They did offer the statement of one attorney, Mr. Throesch. From statements of the attorneys of the plaintiff, it is obvious that a number of witnesses have been subpoenaed here, and this could have been known by the attorneys. One of the attorneys for the plaintiffs has traveled from some point in Kentucky to here. They have spent some good amount of time here preparing for the case. Acriumber of subpoenas have been issued and served by the sheriff and yet the attorneys wait until a day and a half before Court to file such a motion. Even assuming the motion was absolutely correct, it would be improper and this Court wouldn’t have to consider it under Rule Two for there is no time for the plaintiffs to properly answer. Certainly they don’t have their ten days.
Now the motion states, “Documents will be introduced into evidence which were prepared by his Honor.” Upon questioning, counsel states that it’s a power of attorney. The Court has examined the files and finds the power of attorney prepared by John Burris.
Upon questioning, the statement of counsel is that their reason for waiting to file the motion is because their clients weren’t sure they wanted to pay them until they knew the case was going to trial and so they didn’t get ready in time which is a disgusting state of events.
The motion further states that the law firm in which this Judge was formerly a partner previously represented plaintiff, no such proof was offered. The Court notes that the prior case was filed after this Court went on the bench. The Court has examined in complete detail all other possible comparable files and finds case Number 2086 Lloyd Lewallen vs. Delta Bethune in which the law firm this Court had been in represented one of the parties but it was as a matter of fact after this particular Judge had ceased the civil practice of law.
The third allegation is that the Court .Reporter will be called as a witness by the other side. No proof was offered, no transcript to the best knowledge of the Court has been- ordered, and that as a ground for a Judge to recuse himself appears to be credulous.
Now the Court is going to grant the motion, not right now, but I’m going to grant it because you have chosen to file this motion one and one half days before Court. It would not be fair to allow you to get away with such reprehensible actions, nor your client if he is apart of it.
As stated the motion is filed one and one half days before the trial is scheduled. As stated some two years after all of the pleadings are settled and the issues joined. And as stated after at least one attorney the Court knows from yesterday’s hearing has come from Kentucky for the case and numerous witnesses have been subpoenaed here. Now to simply allow the motion to be granted it appears to this Court would be greatly unjust and unfair. By the same token under the circumstances I don’t think it is proper for the Court to hear the case because there is an appearance of impropriety certainly in the way you have handled it with your reckless statements.
Therefore, the defendants will be assessed the complete costs of all witnesses including the service costs on those witnesses, their mileage, the same with the parties, if any of the parties have been here and spent the night, you are going to be assessed their hotel or motel bill, their feed, their lodging. The defendants will be assessed the costs of the attorneys in preparing their case and time devoted to research and so forth which is wasted.
That is, I’m intending to assess that part of it against you that is a needless waste as well as the meals, lodging and transportation of the attorney who has come here from Kentucky for the case. In other words I intend for the defendants to pay every penny of every bit of costs that are run up by your improper dilatory late motion.
Now I don’t know what other action I’m going to take because I don’t want to do anything when I’m mad. But we are going to have a hearing right now on the amount of costs.
Now the Court is aware that this is short notice, and I’ve considered that. But, of course, your notice is very short. You filed your motion a day and a half ago. These people are here that are subpoenaed here, and they are going to be paid their costs. As you can tell without going into it the statement that the motion is not filed for the purpose of delay is deemed credulous by the Court.
All right, will you Gentlemen, are you ready to testify as to the expenses?

After making the above statement, the Chancellor then heard testimony relative to the court costs incurred up to that junction in the proceedings, and also took testimony as to the applicable attorneys’ fees and expenses. Also, evidence was taken as to the out-of-state and out-of-county witnesses and parties and of their expenses incurred, and loss of earnings, •because of their attendance in court for a trial of the case on its merits pursuant to the definite setting previously made. At the conclusion of this hearing the trial court made the following findings:

All right; in addition, the defendant shall be assessed costs, witness fees of $5.00 for Junior Wooldridge, and a service fee of $2.00 to the Sheriffs office, a $5.00 witness fee for Arlo Tyler plus $2.00 sheriff s costs, a $5.00 witness fee for Thelma Bates plus $2.00 service costs, a $5.00 witness fee for Lavon Pogue plus $2.00 sheriff’s costs, a $5.00 witness fee for Doris Tanner plus the cost of service, a $5.00 witness fee for Peggy Long plus $2.00 on the service, a $5.00 witness fee for Dale Long plus the service, one of those services is $3.20 rather than $2.00, a $5.00 witness fee to Reba Hyde plus the $2.00 costs, a $5.00 witness fee to Pearl Brewer plus the costs, a $5.00 witness fee to Dr. DeClerk, plus service costs. Is there any other proof before the Court makes its findings?
No, Sir. (By Mr. Simpson)
All right, Gentlemen, because you have been so dilatory and improper in filing your motion at this time, the Court grants judgment against your client in the amounts that will be announced in just a moment. Now to all of you that are subpoenaed here, I apologize to you. I’m sorry that this many of you were subpoenaed here, and these attorneys chose day before yesterday to file such a motion as this. It’s going to cost them. They and their client are going to pay for every penny of it. And the Court may take further action. The Court assesses costs against Lloyd Lewallen and Betty Lewallen as follows:
$1,365.08 to George Rawlings. To H. G. Lewallen the sum of $135.00 plus $24.72, plus $36.00, plus $79.00. To Francis Lewallen the sum of $79.00. To Herschell Lewallen $79.00 expenses plus $96.00 lost wages. To Delta Bethune $79.00 for meals and lodging, plus $45.00 travel, plus lost wages of $96.00. To Harrell A. Simpson, Jr. the sum of $629.70. To Junior Wooldridge the sum of $5.00, to Arlo Tyer the sum of $5.00, to Thelma Bates the sum of $5.00, to Lavon Pogue the sum of $5.00, to Doris Tanner the sum of $5.00, to Peggy Long the sum of $5.00, to Dale Long $5.00, to Reba Hyde $5.00, to Pearl Brewer $5.00, to Dr. DeClerk $5.00, to plaintiffs attorneys for Sheriffs costs on service of process for this date which is now worthless $21.30. Mr. Rawlings and Mr. Simpson, the Court requests that you prepare the precedent, submit it to the other attorneys for approval as to form, the judgment will be entered against the defendants for those amounts.
To those of you that are subpoenaed here, you are free to leave, I apologize that you have been inconvenienced this greatly on the case that was set for today.

No objections were made by appellants to the hearing or to any ruling or finding of the court at any stage or phase, or to the court’s findings or order allowing attorneys’ fees, lost wages and expenses of out-of-state witnesses who were present and ready to testify, but who were not under subpoena. Judgment was entered for the amounts shown; the defendants-appellants have appealed to the Supreme Court of Arkansas. The case has been assigned by that court to the Arkansas Court of Appeals pursuant to Rule 29(3).

I.

The first issue presented is whether the order in question is appealable. Appellee says it is not as the case is still pending, and no final judgment has been rendered on the merits. Appellee has moved that the appeal be dismissed as premature.

The general rule is that until final judgment of the case on its merits, any order assessing costs is not appealable, but the matter may be reviewed on appeal from the order or judgment disposing of the case on its merits.

However, that rule does not apply when the power or right of the court to assess certain items is in dispute. Hill v. Whitlock Oil Services, Inc., 450 F. 2d 170, 14 ALR Fed. 895.

Appellants here question the power of the lower court to assess the following items:

1. Judgment for or ordering payment of attorneys’ fees; and
2. Judgment for lost wages and expenses of witnesses who were not subpoenaed to testify.

These items total $2,743.50 and are apparently all that is questioned by appellants in this appeal. That part of the court’s order finding that appellants must pay the fees of all witnesses, including the sheriffs costs, who were subpoenaed and appeared is not questioned.

We hold that the lower court’s action in awarding judgment for the items totaling $2,743.50 was appealable under the rule that judgment granting or denying costs is appealable when the power of the court to assess certain items of cost is at issue. Temple v. Lawson, 19 Ark. 148 (1857). See also 54 ALR 2d 927, Sec. 5.

IL

The lower court appears to have determined that appellants acted irt bad faith in filing their motion asking the presiding Chancellor to disqualify himself. Certainly the court held that’ the motion was tardy under the circumstances, and was not timely filed. Appellee says a court has the power to punish for contempt, and views the $2,743.50 extraction as a punishment for contempt. However, the hearing below falls short of a contempt proceedings. No citation was issued or referred to, and appellants were given no opportunity to respond. While testimony was taken, it was limited to the amount of certain items to be assessed against the appellants. The court in its first statement, quoted above, had already determined the basic issue against appellants. Therefore, we hold that these items cannot be sustained on the contempt of court theory. 17 C.J.S. Contempt § 86(3); 43 ALR 3d 793.

III.

Arkansas recognizes the general rule that extraordinary costs, such as attorney’s fees and special cost items, are distinguishable from ordinary costs. Temple v. Lawson, supra. Our Supreme Court in a very early case announced the rule in regard to costs at law to be in general conformity with the law of England, and in this country, that ‘ ‘the entire law of costs and fees is in substance statutory.” The common law did not allow any. Judgment against the vanquished party was his only punishment at common law. Thorn v. Clendenin, 12 Ark. 60. Also Jones v. Adkins, 170 Ark. 298 at 314, 280 S.W. 2d 389 (1926).

At the time of Thorn v. Clendenin, supra, the Revised Statutes, c. 34, § 12 (the forerunner of later statutes on the subject) provided:

If the plaintiff recover judgment he shall have judgment for costs against the defendant.

But, notwithstanding this provision of the statute and the decision in Thorn v. Clendenin, supra, our court in the case of Temple v. Lawson, supra, announced the rule on costs in equity cases by saying that ‘‘the giving of costs in equity is entirely discretionary.” Some later cases state the rule as ‘‘costs in equity cases are apportioned according to what the court regards as the applicable equitable principle.” Paving District No. 5 v. Fernandez, 144 Ark. 550, 223 S.W. 24 (1920). Costs in equity, as used in these cases, refer to statutory costs.

The term “costs” or “expenses” as used (even in a statute) is not understood ordinarily to include attorneys’ fees. 20 Am. Jur. 2d Costs § 72, p. 59. And the right to recover attorney’s fees from one’s opponent in litigation as a part of the costs thereof does not exist at common law. 20 Am. Jur. 2d Costs § 72. Such an item of expense is not allowable in the absence of a statute or rule of the court, or some agreement expressly authorizing the taxing of attorneys’ fees in addition to the ordinary statutory court costs. No Arkansas case has been cited which would modify this rule and allow the imposition of extra expenses or attorneys’ fees of the nature imposed in the case before us. It was long the view of the Arkansas Supreme Court that even a provision in a promissory note permitting the holder to recover his attorney’s fees was contrary to good public policy. That rule was changed by Act 350 of 1951. While the limits of allowance of attorney’s fees on a “recognized ground of equity” are not clearly defined in Arkansas, we know of no cases which permit the allowance of expenses and attorneys’ fees of the nature, and under the circumstances, present in the case before us. We have concluded that the judgment of the trial court must be reversed and remanded with directions to eliminate the items of special costs at issue totaling $2,-743.50, but without prejudice to the rights of the parties to have all proper costs allowed and taxed at the conclusion of the litigation.

Reversed and remanded.

      Effective July I, 1979, Rule 54 of the Arkansas Rules of Civil Procedure provides that except where express provision thereof is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. This rule superseded Ark. Stat. Ann. §§ 27-2308, 27-2310 and 27-2312 (Repl.).

      The law of Arkansas generally on this subject is that each litigant must pay his own attorneys' fees. Jacobson v. Poindexter, 42 Ark. 97; White River L. & W. Ry. Co. v. Star R. & L. Co., 77 Ark. 128, 91 S.W. 14 (1905). See also Light, Taxability of Attorneys' Fees as Costs, 9 Ark. L. Rev. 70 (1955).


text:
    SALANT AND SALANT, INC. and AETNA INSURANCE COMPANY v. Peggy WILLIAMS
    CA 79-206
    593 S.W. 2d 63
    Opinion delivered January 9, 1980
    Released for publication January 30, 1980

      Rieves, Rieves & Shelton, by: David C. Shelton, for appellants.

      Youngdahl, Larrison & Agee, for appellee.
   James H. Pilkinton, Judge.

This is a workers’ compensation case, and the issue here is whether a claim for additional medical expenses incurred by appellee-claimant should be paid by appellants or by appellee.

A hearing was held on January 31, 1979, to determine if appellee was entitled to such additional compensation benefits. At this hearing it was stipulated that appellee had sustained a compensable injury on November 15, 1972. The appellee contended that the claim was initially accepted as compensable and appellants paid benefits through August 11, 1977; that appellee incurred additional medical expenses within one year with the knowledge and consent of the appellant-employer in May 1978. Appellee contended that appellants should pay for the additional medical treatment. The appellants contended that the claim was barred by the statute of limitations.

Subsequent to the hearing the law judge filed an opinion dated March 30, 1979, and this opinion was adopted by the full commission by an opinion rendered August 2,1979. It is from the decision of the Arkansas Workers’ Compensation Commission rejecting appellant’s argument that this appeal is taken. The commission held that appellee was entitled to the additional compensation benefits under the law and facts of this case.

The question on appeal is whether there is substantial evidence to support the decision of the commission, resolving all inferences and doubts in favor of the claimant. Aluminum Company of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480; Jacob Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W. 2d 200; Southwestern Bell Telephone Company v. Brown, 256 Ark. 54, 505 S.W. 2d 207.

The claimant-appellee introduced two statements from Dr. G. P. Schoettle. These.verify that the claimant was seen in the doctor’s office on June 1, 1977 and May 26, 1978. There was also in evidence a doctor’s report form dated September 20,1978, indicating that claimant had a myofacial strain of the back; that the treatment was heat, rest and medication; and that the patient was not discharged.

The claimant testified that she had not experienced any injuries to her back other than the compensable injury in 1972. She also stated that Dr. Schoettle had been her doctor during the entire period of time, and that there was no year that she had not seen Dr. Schoettle at least once during the year for treatment. Claimant further testified that the appellant-employer was aware that she was going to the doctor because it was a requirement that she report to the employer each time before she actually went to the doctor , and that she did so report. On the particular occasion in May 1978, claimant testified she contacted the Personnel Manager, Ms. Charlsey Garrison, and advised her that she was going to the doctor. This testimony is not contradicted.

The record also shows that appellee-claimant testified that Dr. Schoettle treated her with rest, medication and advised her to apply heat to her back. She stated that she carried out his instructions and applied the heat treatment at her home, and took prescription medication given by the doctor.

Appellants have cited no case in point to support their contention that the statute of limitations would run in a case such as we have before us. The appellant company furnished appellee medical treatment in May 1978, as it had done since 1972. Clearly this was within one year from the date of last treatment which was in June 1977. Therefore, this case is governed by the holding in Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S.W. 2d 211. See also Heflin v. Pepsi Cola Bottling Co., 244 Ark. 195, 424 S.W. 2d 365. The commission found that the medical treatment afforded claimant in June 1977 and again in May 1978 effectively tolled the running of the statute of limitation under the facts of this case. We hold that there is substantial evidence to support the findings and decision of the commission. Therefore we affirm.


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

text:
    Robert L. BLOUNT, d/b/a AIRE-WAY REAL ESTATE AGENCY v. Janice McCURDY et al
    CA 79-168
    593 S.W. 2d 468
    Opinion delivered January 9, 1980
    Released for publication February 13, 1980

      Paul Petty, for appellant.

      Lightle,. Beebe & Raney, by: J. E. Lightle, Jr. and A. Watson Bell and Hoyt Thomas, 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 Rule 29(3).

Appellant, Robert L. Blount, d/b/a Aire-way Real Estate Agency, sold certain real property, including a house and its contents, to appellee Janice McCurdy. Blount had previously owned the property and had sold same to Terry and Holly Roberson on a contract of sale. When Blount acted as agent for the Robersons in selling to McCurdy he did not reveal he still had an interest in the property in that Robersons still owed him $1,000 on the sales price. Robersons were not present September 23, 1977, the closing date. The contract had been signed by the Robersons who had moved to Texas. On September 23 McCurdy made a down payment of $1,850 and signed the contract. The contract provided the buyer was to assume sellers’ insurance payments. At the closing, Pat Wolters, Blount’s agent, handed McCurdy an envelope containing an insurance policy, and stated she thought it was paid up. The term on the policy was from October 21, 1977 to October 21, 1978. The face amount was $8,000 on the house and $3,000 on its contents. In December 1977 Blount received notice in the mail the policy was being cancelled for non-payment of premiums. Blount testified he made an attempt to notify McCurdy by telephoning McCurdy’s ex-husband, Doug Merritt. Merritt denied ever having received notice from Blount the policy was being cancelled. Blount testified he sold the property to the Robersons as an individual and not for his real estate firm. He also stated he was given notice of the lapse of the insurance policy because he was the mortgagee, and such notice indicated it had also been mailed to Robersons.

In February, 1978, McCurdy’s house burned. She discovered there was no insurance coverage. Because of this fire loss she defaulted on her payments to the Robersons.

McCurdy sued Blount and the Robersons alleging she was damaged in the amount of $8,000 loss of improvements and $3,000 loss of contents, because of her detrimental reliance in respect to insurance coverage and the failure of each of the defendants to notify her of cancellation of the insurance. McCurdy asks that the Robersons be enjoined and restrained from declaring a default in McCurdy’s contract of sale and from dispossessing her from the property, in order to avoid irreparable harm and damage to McCurdy. The Robersons filed a counterclaim against McCurdy for non-payment of the installment contract. Also they filed a cross-complaint against Blount alleging damages suffered because of their reliance upon.Blount’s representations the insurance policy was paid or would be paid by McCurdy.

After hearing all the testimony and weighing all the evidence the trial judge entered a decree awarding judgment for damages to McCurdy and to the Robersons against Blount for the sum of $8,000 reduced by $1,000 still owing Blount from the Robersons under their original contract and an additional sum of $2,000 against Blount in favor of Mc-Curdy for the unscheduled personal property lost in the fire.

I.

Blount contends the court erred in permitting parol evidence on behalf of McCurdy to modify the essential terms of a written contract. The terms being “. . . and buyer agrees to assume seller’s insurance payments from date as above written and be responsible for the property as of same date. ’’The dates on the policy were ‘ ‘from October 21, 1977 to October 21, 1978.”

It is well recognized parol evidence cannot be introduced to change or alter a contract ín writing. However, our Supreme Court has stated many times oral testimony is competent when ambiguity and uncertainty exist in the contract for the purpose of resolving confusion. Kyser v. T. M. Bragg & Sons, 228 Ark. 578, 309 S.W. 2d 198 (1958). The testimony .may relate to the circumstances attendant to the' execution of the written contract, the relationship of the parties, and evidence of conversations. Jefferson Square Inc., v. Hart Shoes Inc., 239 Ark. 129, 388 S.W. 2d 902 (1965); Peevy v. Bell, 255 Ark. 663, 501 S.W. 2d 767 (1973); Kerby v. Field, 183 Ark. 714, 38 S.W. 2d 308 (1931).

The contract is silent on the matter of at what period of time the buyer’s obligation to make insurance payment began — was it October 21, 1977 or October 21, 1978? McCurdy’s testimony reveals she understood perfectly she was to assume the insurance payments but she also understood the payments would not begin until the policy dated October 21, 1977 through October 21,1978 expired. Exactly when she was to begin the insurance payments is not covered in the contract. The parol evidence rule was not violated because any testimony related to when she was to begin payments is obviously concerned with a collateral, independent fact, or with an ambiguity about which the contract is uncertain. The testimony concerning the obligation to assume sellers’ insurance premiums clause of the contract was not introduced to vary or contradict the written document but was concerned with matters not embraced within the language of the convenant and to explain uncertainties in the document. Lane v. Pfeifer, 264 Ark. 162, 568 S.W. 2d 212 (1978).

Initially Blount’s agent misled McCurdy into believing the insurance was paid up until October 1978. McCurdy relied upon Blount’s agent’s statement the insurance was paid up. This reliance was certainly to her detriment. The rule of detrimental reliance applies not only to brokers but to laymen, and all members of society who deal in commercial transactions with their fellowmen. When it was discovered it was not paid past October 1977 no attempt was made to be certain McCurdy knew such fact.

McCurdy was entitled to rely upon the representation the insurance was in force until October 21, 1978 and the premiums had been paid for such period. McCurdy and the Robersons are entitled to the amount of their loss that would have been paid under the policy of insurance, this sum being $8,000 upon the residence, reduced however, by the sum of $1,000 which is the amount due Blount upon his contract of sale to the Robersons, or a net amount of $7,000 to be allocated $5,750 to the Robersons and $1,250 to McCurdy. He also correctly found the value of McCurdy’s unscheduled personal property was $2,000 which amount Mc-Curdy was entitled to recover from Blount. The Chancellor further ordered Blount to execute and deliver a warranty deed to the Robersons and the Robersons to execute and deliver a warranty deed to McCurdy.

II

Blount contends the court erred in its determination of damages. The court found as a matter of law McCurdy and the Robersons were entitled to the amount which would have been paid under the policy. The house was insured for $8,000. It was totally destroyed. $8,000 is the correct amount under the Arkansas Valued Policy Law, Ark. Stat. Ann. § 66-3901 (Repl. 1966); Hensely v. Farm Bureau Mutual Ins. Co., 243 Ark. 408, 420 S.W. 2d 76 (1967). This statute applies only to an insurance company. However, the policy amount, which would have been owed to the loss payee, is evidence of the property’s value. McCurdy lost the amount of the policy due to her reliance upon the agent’s misrepresentations.

It was disputed the amount owed Blount on his contract with the Robersons was $1,000. McCurdy owed Robersons $5,570. The chancellor correctly determined $5,570 was to be paid to the Robersons and $1,250 to McCurdy.

As to the issue of damages for destruction of the contents of the house it is necessary to prove the value of the personal property destroyed. Ms. Roberson testified without objection the value was at least $3,000. Ms. McCurdy testified as to the contents' and that she had put in a new refrigerator and a complete new livingroom suite. Mr. Blount testified the contents were worth $1,000. Neither of the witnesses’ testimony as to value was objected to. Ms. Roberson was qualified to express an opinion. The court certainly had a right to base its judgment on the testimony before it. The court found the value of the contents to be $2,000.

If this case is based upon damages by reason of detrimental evidence, upon whom did McCurdy and the Robersons rely? Blount and his agents. Their detriment was the amount lost as a result of the policy not being in force. Blount did not object to the value testimony in the lower court. He may not do so, for the first time, on appeal.

Affirmed.

Wright, C.J., and Newbern, J., dissent.

Ernie E. Wright, Chief Judge,

dissenting. I disagree with the majority opinion upholding the decree of the trial court awarding judgment against appellant for the fire loss. The real estate had been sold to appellee McCurdy through appellant as broker for the sellers. The contract of sale clearly stated, “Buyer agrees to assume seller’s insurance payments from date as above written and be responsible for the property as of same date.” The date of the contract referred to was September 20, 1977.

At closing on September 23, 1977 a sales agent for the broker handed the buyer an insurance policy. She testified she told the buyer, “This is your insurance policy. — I told the lady I thought the insurance was paid up.” The policy carried the names of the sellers as the insured with a mortgage clause in favor of the broker who held a mortgage against the property .The buyer’s name did not appear in the policy and the policy term was from October 21, 1977 to October 21, 1978.

The house burned in February, 1978, and the policy had been cancelled prior to the loss for nonpayment of premium.

In my view the buyer had a contractual duty to see that insurance coverage was in effect on the property from the date of closing. She did not contact the local insurance agent who issued the policy. She did not check to see if her name appeared in the policy and she was provided no receipt or documentary evidence showing the premium had been paid on the policy that was to take effect some weeks subsequent to closing.

The record does not reveal any deliberate attempt on the part of any one to deceive the appellee as to the insurance. The appellee failed to act in a reasonably prudent way-to see that insurance was in effect and the insurance requirement met.

There is no ambiguity in the provision in the contract requiring the buyer to pay the insurance premium and be responsible for the property as of the contract date, September 20, 1977.

The trial court held as a matter of law the appellant broker had a fiduciary duty to the appellee buyer. It is undisputed appellant was agent for the seller and there is no evidence he charged appellee McCurdy for servies either as a broker or attorney. I see no basis for the conclusion appellant had a fiduciary duty to appellee. He was only required to deal fairly with appellee, and there is no evidence he did otherwise.

I would reverse, and am authorized to state that Newbern, J., joins in this dissent.


author: Marian F. Penix, Judge.

text:
    John SMELSER v. S.H.&J. DRILLING CORPORATION and TRI-STATE INSURANCE COMPANY
    CA 79-223
    593 S.W. 2d 61
    Opinion delivered January 9, 1980
    Released for publication January 30, 1980

      Thomason, Thomason & Timmons, by: Bryon Thomason, for appellant.

      Shackleford, Shackleford & Phillips, P.A., for appellees.
   Marian F. Penix, Judge.

Claimant, John Smelser, sustained an injury to his left arm and to his back arising out of and-in the course of his employment with S.H.&J. Drilling Corporation. The injury occurred October 6, 1975. The administrative judge awarded a 70% permanent partial disability rating to the body as a whole considering economic factors. He found claimant anatomically had received 45% permanent partial physical impairment to the body as a whole. Claimant appealed to the Commission contending he is permanently and totally disabled. S.H.&J. cross-appealed contending claimant had 45% permanent partial physical disability to the body as a whole. In a 2-1 decision the Commission awarded 45% permanent partial disability which did not include an award for loss of earning capacity. Claimant appeals contending he is permanently and totally disabled, or in the alternative, has a higher rating of disability than claimed by S.H.&J.

The record reveals claimant had been farming for several years and had worked at other jobs, including truck driving and oil field work. After the injury occurred the claimant was renting 100 acres, and running 30 head of cattle, had hired 2 employees to operate haybaling equipment along with his teen-age son.

His accident on a derrick resulted in severe injury to his arm. An operation and skin grafts were necessary. Dr. Norris Knight, an orthopedic surgeon, ascribed 45% anatomical disability to the whole body — 40% attributable to the arm injury and 5% to the back. Dr. Knight wrote “He can’t do any manual labor because his arm and back won’t let him, so he’s going to have to do something in the mental manner that doesn’t require fine use of his left arm. I think he could do something like a dry watchman job which requires being on the premises for 12 hour periods where he could be seated or standing.’’

Nine months after the accident the claimant worked 72 hours one week dry watching a rig for appellee S. H.&J. He said he declined to continue because of pain and muscle spasms. The claimant has refused to enter any program for rehabilitative training.

I

The claimant contends the Commission denied benefits in excess of his 45% physical impairment because he did not pursue vocational rehabilitation. The Commission stated:

We do not feel that the evidence shows that the Claimant has sustained disability in excess of his rating of physical impairment as the Claimant did not pursue vocational rehabilitation, notwithstanding directions of this Commission to do so. The Claimant refused rehabilitation evaluation for reasons best known to himself.

The Claimant contends the Commission erred in penalizing him for failure to submit to a program of vocational rehabilitation. Claimant argues if Ark. Stat. Ann. §81-1310(F) Rehabilitation is procedural then the 1979 Amendment became effective on March 2, 1979 and the Commission’s opinion penalizing the claimant for failure to accept vocational rehabilitation was filed July 3, 1979, and is without the power of the Commission. The claimant further contends if the statute be construed to be substantive, then the original Ark. Stat. Ann. § 81-1310(F) Rehabilitation is controlling since it was not amended until 1976. Claimant contends neither statute is susceptible of a construction that would deny the claimant benefits for failure to accept rehabilitation.

We find the claimant has misconstrued the meaning of the rehabilitation section of the Workers’ Compensation law. It makes no difference whether we consider Section 10(F) before or after the amendment. The amendment provides that an employee shall not be required to enter any program of vocational rehabilitation against his consent. Whether or not an injured employee can be retrained is a pertinent factor for the Commission'to consider in determining the amount, if any, of wage earning loss. If no rehabilitative evaluation is made the Commission has no way of knowing whether the employee could have been retrained. By analogy if certain proven surgical procedures are available and there is indication the employee’s disability could be diminished by same, and the employee declines to submit to such procedures, certainly the Commission has the right to consider this in determining the employee’s disability. It has long been held in Arkansas that rehabilitation potential is an important factor in determining loss of wage-earning capacity, Arkansas Best Freight, Inc. v. Brooks, 244 Ark. 191, 424 S.W. 2d 377 (1968).

II

Claimant contends the record lacks sufficient evidence upon which the Commission could have made such an award.

The claimant has received a GED diploma, which is the equivalent of a high school education. He has proven himself to be a businessman, overseeing the operation of a cattle farm, doing custom haybaling with equipment which he owns. He has been gainfully employed overseeing the farm’s operation and the custom haybaling, all since his injury.

Our task is to determine whether there was substantial evidence upon which the Commission made its finding. We cannot say the evidence was insubstantial. Therefore we must affirm the Commission. We have reviewed the evidence and made all reasonable inferences deducible therefrom in the light most favorable to the Commission’s finding which, like those of a jury, will be upheld if there is any substantial evidence to support the Commission’s action. Northwestern National Insurance Co. and Bearden Enterprises v. Weast, 253 Ark. 710, 488 S.W. 2d 332 (1972).

Affirmed.


author: George Howard, Jr., Judge.

text:
    Laura COKER v. Charles L. DANIELS, Director of Labor and STAPLETON LADDERS COMPANY
    CA 79-296
    593 S.W. 2d 59
    Opinion delivered January 9, 1980
    Released for publication January 30, 1980
   George Howard, Jr., Judge.

Appellant challenges the action of the Board of Review in affirming the denial of unemployment benefits under Section 5(b)(1) of the Employment Security Law which provides:

. . . [A]n individual shall be disqualified for benefits:
If he is discharged from his last work for misconduct in connection with the work . . .

Appellant testified that her status as an employee with Stapleton Ladders, Respondent, began in February, 1979; that she, her husband and brother, who were also employed by respondent, did not report to work on May 21st and 22nd because her husband’s automobile broke down and she had no means of transportation to work; that on May 23rd she did not report to work because she was ill. Appellant also testified that she was absent from her job on at least two other occasions because her daughter was ill necessitating appellant’s presence at home.

It is undisputed that appellant advised her employer, by telephone, that due to the lack of transportation she was unable to report to work on May 21st and 22nd. It is further undisputed that appellant’s husband and brother on May 23rd advised the respondent, when they reported for work, that appellant was ill and wopld not report to work, whereupon appellant, her husband and brother were fired.

It is clear that respondent is a small enterprise employing only a few people in the manufacture of ladders. Appellant’s assignment on respondent’s assembly line consisted of placing “braclets and things on steps for the ladders.” Appellant’s assignment was vital, to the continuity and smooth operation of respondent’s production schedule. It is undisputed that appellant’s absence has interfered materially with respondent’s assembly line production.

The force of appellant’s argument for reversal seems to be that respondent — in a conversation between respondent and appellant’s husband — terminated appellant on May 21st rather than May 23rd; therefore, the reason for her termination was because of the lack of transportation which wás the result of an emergency which appellant had no control over and was in fact an unavoidable situation. Thus, argues appellant, respondent’s action is not based upon good cause.

Respondent, on the other hand, testified that the termination occurred on May 23rd and that appellant had a rather lengthy absentee record during her relatively short period with its firm.

It is crystal clear that during appellant’s twelve weeks of employment, she had been absent at least six times either because of illness in the family or the lack of transportation. The question relative to when appellant was actually terminated presented a fact question for the Agency’s determination. Credibility is a matter to be evaluated and resolved by the administrative tribunal while our responsibility is to determine essentially whether the finding of the Agency is supported by substantial evidence.

While it is generally recognized that an employer has certain obligations and responsibilities to his employees in providing suitable working conditions and hours, it goes without saying that an employer generally has neither an affirmative duty to provide transportation to an employee to and from his place of employment, nor is required to tolerate a mode of conduct pertaining to an employee’s ability or the lack thereof to provide transportation to and from his place of employment which has the effect of reducing the efficiency of the employer’s operations and, if continued, the complete destruction of the employer’s business before the employer can take preventive measures as was done in the instant case.

We are convinced that the holding of the Agency is indeed supported by substantial evidence.

Affirmed.


author: David Newbern, Judge. David Newbern, Judge.

text:
    Holland Ray EDWARDS and Wife, Bonnie EDWARDS v. Jerry L. HALL and Wife, Roberta HALL
    CA 79-172
    593 S.W. 2d 465
    Opinion delivered January 9, 1980
    Released for publication February 13, 1980

      Clark & McNeil, for appellants.

      Jack M. Lewis, for appellees.
   David Newbern, Judge.

This suit was brought to cancel a tax deed and a subsequent lease from the tax deed grantee and to remove the deed and the lease as clouds from the title asserted by the appellants. The chancellor, in part, denied the relief sought, and an appeal was taken to the Arkansas Supreme Court which transferred the case to us pursuant to Rule 29(3). The issues are (1) whether a separate assessment of the mineral interests was proper and (2) whether a tax deed grantee’s interest is limited to the interest of the person in whose name the property was assessed.and subsequently forfeited to the state.

In July, 1953, J. E. Linn conveyed to T. J. Weigel “an undivided one half interest in and to all of.the oil royalty, gas royalty, and royalty in casinghead gas, gasoline, and royalty in other minerals” in certain land. The grant was to run “twenty five years from date hereof and as long thereafter as oil, gas or other minerals, or either of them, is produced or mined from the lands described.”

In 1955, Linn conveyed this same land to the appellants by warranty deed, subject to the royalty conveyance. In 1961, the mineral interests in the land were assessed separately from the surface interests, and the taxes on the mineral interests were not paid for that year. In 1962, the appellees Hall purchased at a tax sale the mineral interests which had been forfeited. In 1965, a clerk’s deed was issued conveying the mineral interests in the land to the Halls. In September, 1978, the appellants filed suit to cancel the deed and a lease which the Halls had subsequently executed to the appellee Union Oil Co.

The appellants argue that if the separate tax assessment oh the mineral interests was proper, it could not result in a forfeiture or sale of any interest greater than that which had been conveyed to Weigel by Linn and, as admittedly there had been no production on the land, that interest terminated by its own terms twenty five years after its creation.

The chancellor held that the tax deed to the separate mineral interests was not a derivative title conveying only Weigel’s interest but rather, was a new, complete and independent title which extinguished all prior interests in that which it purported to convey. Excepted from the effect of this holding were certain parts of the land in question as to which the chancellor found the tax deed void for lack of a proper description. The essence of the chancellor’s decision was thus that a valid tax deed to mineral rights cannot be successfully challenged on the basis that it resulted from a separate assessment caused by a conveyance of less than all of the mineral interests in the land. Neither the chancellor’s opinion nor the appellee’s brief cites any Arkansas statute saying or case holding this proposition to be the law.

The closest thing to Arkansas authority cited by the chancellor is dictum from Champion v. Williams, 165 Ark. 328, 264 S.W. 972 (1924). In that case, the Supreme Court dealt with the power of a remainderman to redeem after a life tenant had permitted land to be forfeited for taxes. In that. case, the court found the tax deed to have been void, but said:

The tax sale, if valid, would have barred the right of all interested parties, those holding remainder interests as well as the life tenant, for the sale operated in rem, and all parties were bound by it; . . . [165 Ark. at 335]

The question first to be considered is whether the assessment was valid, and thus whether it was a basis for a valid sale. In Brizzolara v. Powell, 214 Ark. 870, 218 S.W. 2d 728 (1949), our Supreme Court said Ark-. Stat. Ann. § 84-208 (Repl. 1960), permits separate assessment of mineral interests “only which had been separated from the surface ownership.” (214 Ark. at 872) The Supreme Court in effect held that regardless that a tax sale might have purported to convey the entire mineral interest, it did not have that effect unless the separate assessment was valid. The theory asserted by the court was that a tax deed was void if the taxes had in fact been paid. If there had been no valid severance of the surface and mineral interests, then the surface owner, by paying the taxes on “the land” had paid all the taxes due. That case was remanded for a determination whether there had in fact been a reservation, and thus a separation, of the mineral interests.

Thus, we must look to the question whether the conveyance of the “royalty” interest constituted a severance or separation of the mineral interests sufficient to permit a separate assessment. Our statute permitting separate assessment has been interpreted broadly, and there is no requirement that there be a conveyance of the minerals in place in order to effect a sufficient severance to invoke the separate assessment statute. State ex rel. Attorney General v. Arkansas Fuel Oil Co., 179 Ark. 848, 18 S.W. 2d 906 (1929). Although the appellants’ brief raises the question of the propriety of the assessment, at one point it concedes, “[t]he apparent intent of the statute was to require all mineral interests, whether royalty, in-place, or otherwise to be separately assessed.” We cannot quarrel with that statement.

Given the validity of the assessment, and absent any other attack on the validity of the tax deed, we come face to face with the chancellor’s conclusion that a valid tax deed conveys that which it purports to convey, regardless what may have been the extent of the interest of the person in whose name the property was assessed and forfeited for failure to pay taxes.

We believe the dictum quoted above from the Champion case correctly indicates that our tax scheme contemplates the kind of new, comprehensive title to be conveyed by a tax deed as was held by the chancellor in this case to have been conveyed. If, as indicated by that dictum, a valid tax deed conveys the entire fee and extinguishes a remainder following a life estate, then no different rule should prevail where the owner of a determinable mineral interest is put in the place of the life tenant who failed to pay taxes and the holder of the reversionary interest is substituted for the remainderman. Our faith in the notion that the drafters of our property tax statutes would approve is bolstered by Ark. Stat. Ann. § 84-108 (Repl. 1960), which says:

It shall not be necessary to the validity of an assessment or of a sale of land for taxes, that it be assessed to its true owner, but the taxes shall be a charge upon the real and personal property taxed, and when sold, shall vest the title in the purchaser without regard to who owned the land or Other property when assessed or when sold, and the personal property of any deceased person shall be liable in the hands of any executor or administrator for any tax due on the same by any testator or intestate.

In the case before us, the entire mineral interest was assessed and taxed separately from the surface. It does not matter that Weigel was not the owner of the entire mineral interest, as the tax was a charge on the land sold, and vested title in the purchaser regardless who may have owned other aspects of the mineral interests which were separately taxed.

Affirmed.

Supplemental opinion on denial of rehearing delivered February 13, 1980

David Newbern, Judge.

The first point in the appellants’ petition for rehearing is that our opinion should be clarified to show that we are saying that only a 1/2 interest in the mineral rights to the property in question was conveyed by the tax deed. We find that point well taken. In our opinion, we used the term “entire” mineral interest. We meant only to say it included the future interest as well as any present interest in what the tax deed purported to convey. That was, of course, responsive to the issue raised below and on this appeal. We did not mean to say that the tax deed conveyed more than it purported to convey, and as abstracted by the appellants, it is clear the deed purported to convey only a 1/2 interest in the mineral rights. Our point was, and is, that the tax deed left outstanding no future interest in the 1/2 interest it purported to convey.

Since our initial opinion in this case, two Arkansas Supreme Court decisions which we should have addressed have come to our attention. The parties did not cite them to us in their briefs or with respect to the petition for rehearing. However, this response to the petition for rehearing presents an opportunity for us to discuss them. They are, Laney v. Monsanto Chemical Co., 233 Ark. 645, 348 S.W. 2d 826 (1961), and Claybrooke v. Barnes, 180 Ark. 678, 22 S.W. 2d 390 (1929).

In Laney, the court held a party holding a severed mineral interest was not affected by the payment of taxes by another “for [his] mineral interest had already been severed and is therefore not deemed to have been included in the description under which the tax payments were made. [233 Ark. at 649].” For that proposition, the Claybrooke case is cited as authority. In Claybrooke, it was held that adverse possession, apparently consisting of surface possession only, does not run against severed mineral interests. At first blush, these cases seem theoretically inconsistent with our decision, despite the obvious factual distinctions.

We do not regard our decision here as.inconsistent with them, however, once the distinctions are properly analyzed. There is no statutory provision for separate assessment, of a future interest in the minerals, and thus a valid tax title to the mineral interests conveys all or whatever “horizontal” fraction it purports to convey. That is consistent with the dictum in the Champion case cited in our initial opinion which indicates a general tax title conveys the entire surface (and unsevered mineral) interest even though there may have been an outstanding future interest. Here again, we use the term “entire” to indicate inclusion of any future interest, and not to say the tax deed conveys more than purported.

Thé Laney and Claybrooke cases apply only in the situation where one takes title to land by tax deed thinking it applies to both the surface and the mineral interests. They hold that the tax deed will not convey the minerals if they have been separated earlier by deed. In view of our tax scheme’s provision for separate assessment and taxing of surface and minerals, a tax purchaser of a described surface should be on notice his deed may not be a conveyance of the mineral interests. Where the tax deed purports to convey the mineral interests only, however, nothing supports the notion that a purchaser should be held to take less than that which is described.

Rehearing denied.


author: David Newbern, Judge.

text:
    Billy G. SANDERS v. ARKANSAS-MISSOURI POWER COMPANY
    CA 79-173
    593 S.W. 2d 56
    Opinion delivered January 9, 1980
    Released for publication January 30, 1980

      Duncan & Davis, for appellant.

      Reid, Burge & Prevallet, for appellee.
   David Newbern, Judge.

The appellant was seriously injured when he came in contact with a “hot” electric line while working as a lineman for the appellee. In his complaint the appellant alleged the appellee’s agents promised he would receive full pay and benefits until he could return to work, in exchange for his promise to return to work when able. He further alleged that in reliance on the appellee’s promise and their performance of it for some eighteen months he built a new home with special wheelchair accommodations. In addition he alleged he was entitled to recover on theories of gift and contract implied in fact. These were alleged as alternative theories to his allegation of breach of the express agreement. In his prayer for relief, the appellant alleged he was totally and permanently disabled and thus was entitled to $675,000, presumably the present value of payments he could expect to receive from the appellee for the remainder of his “working life.’’

The circuit court sustained a demurrer and dismissed the complaint. The findings stated in the dismissal order were:

1. The Workers’ Compensation Act or claim is not plaintiffs exclusive remedy and therefore not a bar to this action.
2. The allegations of the Complaint do not establish valid consideration for a binding or enforceable contract; said allegations do not establish a third party beneficiary relationship; nor do they constitute a valid enforceable gift.
3. Plaintiff s Complaint, therefore, does not state facts sufficient to constitute a cause of action; therefore, Defendant’s Demurrer and Motion To Dismiss should be granted.

Although there had been some discovery activity which became part of the record in this case, the court’s order clearly was based on the inadequacy of the complaint, and we limit our decision to the propriety of that order..

1. Gift.

The complaint was not sufficient to state a cause of action based upon a gift theory. Although it states there was a “delivery,’’ such a statement is conclusory only. No facts are stated showing a delivery of that which the appellant claims. A complaint which does not state facts constituting every element of a cause of action is demurrable. Vandevier v. Chapman, 255 Ark. 1039, 505 S.W. 2d 495 (1974); Wood v. Drainage Dist. No. 2 of Conway County, 110 Ark. 416, 161 S.W. 1057 (1913).

2. Contract Implied in Fact

We find no need to discuss at length the paragraph of the complaint which alleges a contract implied in fact, as the allegations of express contract deal with the same exchange of promises we presume the appellant would have us infer from the conduct of the parties.

3. Mutual Promises

In evaluating the complaint, we must assume, as alleged by the appellant, that agents of the appellee promised the appellant he would be paid his full salary and company benefits until he was medically able to return to work. In exchange for that promise, the appellant alleges he promised to resume “a position of employment as soon as medically possible.” We recognize that a promise to hold oneself available to resume work has been held sufficient to constitute consideration for an agreement to pay a monthly salary for life. Abbott v. Arkansas Utilities Co., 165 F. 2d 339 (8th Cir. 1948). We agree with the holding in that case, although it was one based on the ‘‘general law” because no Arkansas Supreme Court case on the point could be found by the Court of Appeals. There, however, the complaint being evaluated contained no indication the plaintiff-employee was incapacitated in any way from performing should the need arise. He had retired from regular employment with the defendant and had agreed to be available for work on call in exchange for a regular reduced salary.

In the case before us, however, the appellant has pleaded total and permanent disability, and it becomes obvious he has made a promise it is impossible for him to perform. We cannot say this complaint states a cause of action for breach of contract based on mutual promises where it alleges one of the promises is impossible of performance. We cannot countenance the appellant’s statement he is “holding himself ready” to perform when in the next breath he alleges his inability to do so. These statements cancel each other and make the appellant’s alleged promise illusory at best..

At the time the alleged promise to pay was made by the appellee and the alleged promise to go back to work when able was made by the appellant, there may have been some doubt as to the appellant’s prospective ability to. work. The complaint says the appellee paid the appellant’s salary for approximately eighteen months and then ceased. The employer was under no obligation to continue this employment agreement when it became clear the appellant would not be able to work again, as admitted in the complaint before us. See, 6 Williston, Contracts, § 877, pp. 350-357 (3d Ed. 1962).

4. Detrimental Reliance or Promissory Estoppel

Perhaps the broadest statement of the doctrine of detrimental reliance or promissory estoppel is that found in 1 Corbin, Contracts, § 119, p. 515 (1963):

... [I]f a promisee acts in such reasonable reliance upon a promise, that promise may be held enforceable even though the promisor did not in fact know of such action and so did not regard it as consideration or as anything else. Even the promisee who acts in reliance may not regard his action as any reason for enforcing the promise; he may perform the action because he believes the promise will be kept without the necessity of any enforcement.

That language seems to indicate that as long as the action in reliance, on a promise is reasonable it matters not that the action taken was not directly induced by the promise sought to be enforced. We recognize this, however, as a problem of semantics. We prefer to state the problem as one of applying an objective standard in determining the reasonableness of an act in reliance.

We do not propose here to enter, other than lightly, the further semantic struggle between the doctrines of detrimental reliance- and promissory estoppel. The Arkansas Supreme Court examined the history and the broad bases of the promissory estoppel doctrine in Peoples National Bank of Little Rock v. Linebarger Construction Co., 219 Ark. 11, 240 S.W. 2d 12 (1951). There the plaintiff had loaned money, at the behest of a contractor, to one of the latter’s subcontractors in reliance upon, a promise of the contractor to repay the amount of the loan. This, was part of a continuing arrangement whereby each week the contractor would tell the Bank the approximate amount of the subcontractor’s payroll, and the Bank would make that amount available to the subcontractor with the contractor’s guarantee of repayment. The amount thus loaned on the occasion which gave rise to the lawsuit was $16,000. The contractor was held liable to repay the bank, but only to the extent of $11,996.07. The court said, “[i]f special circumstances had not indicated a particular purpose for the use of the money, then the estoppel might well have extended to the full amount stated in the representation. [219 Ark. at 19]” Thus, the court held the contractor was not “estopped” with respect to his entire promise although he might have been but for the “special circumstances.” At least the case makes it clear that some such doctrine has been applied, and apparently consistently so, in Arkansas over the years. We tend to agree with the author of the note on that case at 30 Texas L. Rev. 903 (1952), that the term “estoppel” is not very accurately used there, although we cannot say whether there would have been a different result or even different considerations had the concept of detrimental reliance sufficient to warrant enforcement been used instead.

We hold the complaint before us stated facts sufficient to state a cause of action in that the appellant alleged he had built a new home especially equipped for a wheelchair user in reliance on the promise of the appellee. Of course, the appellant will have to prove to the trier of fact that his action was indeed based upon that reliance and that it was reasonable, but we find it sufficiently stated.

Although we recognize we should not apply the new rules of pleading, recently adopted in Arkansas, we find even the old, more formal pleading code must be applied with some reference to the reasons behind it. Here there is no doubt the complaint is sufficient to let the court and the appellee know the precise nature of the appellant’s claim of an enforceable promise based on detrimental reliance. The defendant-appellee will have no trouble drafting an answer which sufficiently defines issues for the court’s resolution.

Reversed and remanded.

Hays, J., dissents.

       The order dismissing this complaint was filed before the new Arkansas Rules of Civil Procedure, supplanting Ark. Stat. Ann. §§ 27-1113 and 27-1115 (Repl. 1962), came into effect.


author: Ernie E. Wright, Chief Judge.

text:
    ARTEX HYDROPHONICS, INC. and GREAT AMERICAN INSURANCE CO. v. Arvel PIPPIN, Employee
    CA 79-198
    593 S.W. 2d 473
    Opinion delivered January 16, 1980
    Released for publication February 6, 1980

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

      Stoker & Keeter, by: Bob Keeter, for appellees.
   Ernie E. Wright, Chief Judge.

This is an appeal from a decision of the Workers’ Compensation Commission holding appellant responsible for certain medical expenses.

The appellee sustained a compensable injury on May 24,1977, while working for appellant, Artex Hydrophonics. The accident resulted in compression fractures to some four or five vertebrae. When claimant continued to suffer pain after two weeks hospitalization his orthopedic surgeon, Dr. Hathcock, referred him to Dr. Fecher, a specialist in hematology and oncology. Tests revealed he had multiple myeloma which predated the injury. The myeloma had weakened his bones predisposing him to the compression fractures sustained in the accidental injury. He responded well to the myeloma treatment which was necessary not only to halt the disease but served to stabilize the bones and thereby help heal the fractures. The medical evidence shows the fractures had healed no later than December 19, 1977, when Dr. Hathcock last saw claimant, and new problems with the fractures are not anticipated in the near future.

The issue before the Commission was whether appellants are liable for medical expenses incident to the treatment of the myeloma which preceded the injury, was not aggravated by the injury and was discovered incident to treating the fractures arising from the injury. The fractures simply resulted in earlier discovery of the myeloma.

While the myeloma would have been treated upon discovery in any event, it was necessary to treat the myeloma to stabilize the bone structure to accomplish healing of the fractures.

On appeal appellants concede responsibility for medical expenses in the initial diagnosis and treatment of the myeloma as this was necessary to promote healing of the fractures. They deny responsibility for the continuing treatment of the myeloma on the ground such treatment is not a medical expense stemming from the injury.

The Commission held the preponderance of evidence showed treatment of claimant’s preexisting myeloma was, at least through October 27, 1978, proper and necessary medical treatment incident to the compensable injury sustained in May 1977 for which appellants are responsible.

The treatment for the myeloma appears to have consisted of cobalt, chemotherapy and repeated blood tests made necessary because of the chemotherapy. The cobalt treatment has been given primarily for residual pain incident to the fractures although it has beneficial effects on the myeloma. The chemotherapy is to stop or retard the myeloma. Dr. Fecher testified, in a deposition on August25,1978, “If I remember right, within a couple months after being out of the hospital, he was probably in as good a shape as far as how he, you know, his back pain, as he is today, so, I don’t think any change has really taken place clinically, you know, say in the last ten months.” Claimant was discharged from the hospital on August 8, 1977. Dr. Hathcock testified claimant should have healed enough by the time he last saw him in December 1977, that after that point treatment would be only for the myeloma.

Ark Stat. Ann. § 81-1311 makes it the obligation of the employer to provide medical services reasonably necessary for the treatment of the injury received by the employee. The law does not require the employer to pay for medical expenses for the treatment of a preexisting disease not aggravated by the injury except to the extent it may be necessary to accomplish treatment of the injury.

There is substantial evidence to support the holding of the Commission that appellants are responsible for all of the medical.expenses in question through December 19, 1977, when Dr. Hathcock last saw claimant. However, the record appears to be incomplete as to what medical expenses were incurred after that date and the purpose of the expenses.

We modify the decision of .the Commission to hold respondents responsible for the medical expenses in question incurred through December 19,- 1977, but remand the case for further trial as to expenses incurred after December 19, 1977 and a determination of what part of such expenses were reasonably necessary for the treatment of the injury.

Affirmed in part as modified, and remanded in part.


text:
    Alonzo Clay REED v. STATE of Arkansas
    CA CR 79-102
    593 S.W. 2d 472
    Opinion delivered January 16, 1980
    Released for publication February 6, 1980

      Paul Johnson and William H. Craig, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

The appellant was convicted by a jury of two felony counts of theft of property in violation of Ark. Stat. Ann. § 41-2203, and a misdemeanor count of drawing and uttering an insufficient fund check with intent to defraud in violation of § 67-720. After he was found guilty on the above mentioned counts the jury found appellant had been previously convicted of two or more felonies as charged. He was sentenced to three years imprisonment on each of the two felony convictions, with the sentences to run concurrently, and a fine of $20.00 on the misdemeanor conviction.

From the judgment the appellant brings this appeal contending the court erred in denying appellant’s motion for a directed verdict of acquittal and in admitting into evidence the testimony of the bank’s officer and microfilm copies of bank records.

The evidence shows an . account was opened in the Union National Bank in Little Rock on December 2,1976 in the name of Master A. C. Reed Enterprises, Inc. in the amount of $5.00. No other deposits have been made in that account. On December 26,1976, A. C. Reed drew a check in the amount of $347.00 on that account pay able to A. C. Reed and deposited it in his personal account. The check was charged back to the business account as there were no funds in the business account to clear the check. The bank suffered a loss of $238.89 in the accounts incident to the $347.00 bad check. On December 28,1976 A. C. Reed issued a check on his personal account for $35.00 to the Country Cobbler for a pair of boots and payment by the bank was refused because of insufficient funds in the account. On March 12,1977 A. C. Reed issued a check on the business account to A. C. Reed and this was cashed by him at a Kroger store in Little Rock. The manager of the store who cashed the check testified the appellant present at trial was the individual for whom he cashed the check. Payment of the check was refused by the bank as there were no funds in the account. The appellant contacted the bank and Kroger store prior to trial and expressed a desire to make restitution, but tendered no funds.

A sales clerk from the Country Cobbler testified A. C. Reed, the appellant, present in the courtroom, gave him the $35.00 check for a pair of boots and the check came back from the bank unpaid. The check has not been paid.

Microfilm copies of bank records incident to the two accounts were received in evidence upon the testimony of the manager of the accounts services department of the bank. He testified the microfilm records he identified were kept in the normal course of business.. His department processed all records for checking and saving accounts, the transactions are microfilmed daily, and that while he does not keep the microfilm in his immediate personal possession, requests for copies are handled through his department. He admitted he did not have personal knowledge as to whether the checks were actually written by A. C. Reed.

Appellant argues that the state did not establish by direct evidence that appellant wrote or presented the checks involved in the prosecution, and that his signature on the checks was not identified. He also argues the circumstantial evidence was not sufficient to support a conviction. .

The manager of a Little Rock Kroger Store testified he cashed a check for appellant dated March 12, 1977 in the amount of $165.00. The check was returned by the bank with the notation the account was closed. The check has not been paid and the appellant in the courtroom is known to him as A. C. Reed, the person for whom he cashed the check. The check was received in evidence.

No evidence was introduced disputing the bank records or the state’s evidence.

The microfilm copies of bank records identified by the bank’s officer as being copies of records kept in the normal course of business were competent evidence, and it was not error to admit the records in evidence. Ark. Stat. Ann. § 28-932 expressly provides for the admissibility of such records, and the records were adequately identified by the bank’s officer. Under Rule 803(6) of the Uniform Rides of Evidence the testimony of the witness was competent.

The testimony of two witnesses identifying appellant as the person passing the two bad checks coupled with the testimony as to appellant expressing a desire to the bank and to Kroger store to make the losses good, combined with the documentary evidence was sufficient to warrant the court in submitting the issues to the jury.

On appeal the court affirms if there is substantial evidence to support the verdict, and we find ample substantial evidence to support the jury’s verdict. Milburn v. State, 269 Ark. 267, 555 S.W. 2d 446 (1977).

After the verdict of guilty and prior to the jury determining the sentence, appellant took the stand and admitted he was guilty of the charges, and expressed his intention of making restitution.

Affirmed.


author: M. Steele Hays, Judge. •D.avid Newbern, Judge,

text:
    Betty JACOBS v. Ebrahim LEILABADI d/b/a NORTH GREGG APARTMENTS
    CA 79-176
    593 S.W. 2d 479
    Opinion delivered January 16, 1980
    Released for publication February 6, 1980

      W. Asa Hutchinson, for appellant.

      Murphy & Carlisle, for appellee.
   M. Steele Hays, Judge.

Appellant entered into a written lease agreement with appellee, plaintiff below, on August 1, 1978, leasing an ápartment unit in Fayetteville for one year at $235 per month. Appellant took possession around August 15 and paid $470 to cover two months rent plus $ 100 as a deposit against damage. In December, appellant told appellee that the rental costs in Fayetteville were too high for her earnings and that she.was forced to give up the apartment. Appellee informed appellant that he would hold her to the lease term. Around the 20th of December, appellant paid a month's rent and notified appellee in writing that she would be vacating the apartment no later than January 1 and would not expect a return of her deposit of $100.

On December 27, appellee filed a suit to recover the full amount due under the léase, less the rental payments made by appellant and trial was set for January 26,1979. The facts are not disputed: appellee testified that the first two rent payments of $235 each were to apply to the first month and last month under the lease (although no provision to that effect appears in the lease); that he had advertised regularly from December on to obtain another tenant and was unable to rent the apartment during the lease term; that appellant’s notice that she was vacating was léft on his door sometime during December (he could not say just when); that no damage to the premises had occurred; that appellant had begun occupancy on August 15 and he only charged her for one-half of that month. By stipulation, it was agreed that appellant had.paid a total of $1292.50 plus the $100 deposit, all of which were to be credited to the total rent for the lease period.-

At the close of plaintiffs case, the appellant-defendant moved for a directed verdict upon the ground that appellant was entitled to peaceful possession until January 30, 1978 because her payments of $1292.50 brought the rent current to that date, whereas suit was filed prematurely on December 27, 1977.

Appellant’s motion was overruled, and her testimony was in agreement with that of appellee’s. She stated that she “evidently” vacated the premises on or about December 27 and moved to Rogers, Arkansas.

The trial court’s findings were that appellant had paid $1292.50 in rent commencing on August 15; that a total of $2702.50 in rent was due, leaving appellant indebted to appellee for $1,410.00 less the $100 deposit, or a balance of $1,310.00, for which judgment and costs were granted to appellee. The judgment was filed on February 13, and on February 9 appellant filed a motion to vacate and reverse judgment, asserting that appellee’s suit was commenced on December 27, prior to the accruing of any cause of action, inasmuch as it was undisputed that appellant’s rent was paid at least through January 15.

Appellee filed a response to the motion on March 1, asserting that $235 of rent was to be applied to the last month of the lease (July 1978) and consequently appellant’s rent was current only through the month of December, 1977, that rent for January of 1978 was due in advance under the lease when suit was filed on December 27, and that the cause of action had arisen at time suit was filed.

On April 3 the motion was heard, and an order entered on April 17 denying the motion upon the ground the judgment had been entered in the term of court commencing on January 1 and not acted upon during such term (a new term having commenced on April 1) and, therefore, the court had no authority to act upon the motion except upon grounds set out in Ark. Stat. Ann. § 29-506, none of which were alleged in the motion.

On April 5, appellant filed notice of appeal from the order and judgment and argues that no cause of action existed when suit was filed and that it was error to deny appellant’s motion to vacate.

For reversal appellant contends that the trial court erred in denying the motion to vacate; however, appellee insists that notice of appeal was not timely filed, and, if that is correct, we could not reach the appeal on its merit. Therefore, we consider that point first, as it is jurisdictional to this appeal. Davis v. Ralston Purina Company, 248 Ark. 14, 449 S.W. 2d 709 (1970).

The sequence of filings pertinent to the issue are set out for clarity:

January 26 — Trial by court and findings announced.
February 9 — Motion to vacate and reverse judgment filed.
February 13 — Judgment filed.
March 1 — Response to motion filed.
March 22 — Docket entry setting a hearing on motion to vacate.
April 5 — Notice of appeal filed.
April 17 — Order denying motion to vacate filed.

Act 123 of 1963, in four sections (Ark. Stat. Ann. 27-2106.3 — 2106.6) was intended to clarify the time for filing notice of appeal in those instances in which a losing party had filed a motion for a new trial, or similar motion affecting the judgment. The decision of Justice Brown in Old American Life Insurance Company v. Lewis, 246 Ark. 322, 438 S.W. 2d 22 (1969) provides this explanation:

We discussed Act 123 in St. Louis S.W. Ry. v. Farrell, 241 Ark. 707 (1966). “Act 123 was evidently intended to remedy an awkward situation created by Act 555 of 1953.” Act 555 required a notice of appeal to be filed within thirty days after entry of judgment by the trial court. That requirement had to be abandoned for the benefit of a losing party who might have good reason to file a post-judgment pleading, such as a motion for a new trial, or one of the several motions enumerated in Act 123. Consequently, Act 123 established a procedure whereby the time for filing notice of appeal could be postponed pending the determination of such a post-judgment pleading.

In St. Louis Southwest Railway Company v. Farrell, the requirements of Section 2 of Act 123 are stated succinctly:

Section 2 of Act 123 requires the party to present the motion to the trial court within thirty days after its filing. If the matter cannot be heard within that period of thirty days the party must, within that period, request the court either to take the motion under advisement or set a definite date for the motion to be heard. If neither of those steps is taken within thirty days it shall be deemed that the motion has been finally disposed of at the expiration of the thirty days, and the time for filing a notice of appeal begins to run.

Section 3 of Act 123 provides:

If the said motion shall be denied by the trial court or shall be deemed to have been disposed of at the expiration of thirty days as provided in the preceding section, any party desiring to appeal from the judgment, decree or order originally entered shall have ten days from the entry of the order denying the said motion, or from the date of its disposition as herein provided, except that any party shall have not less than thirty days from the original entry of the judgment, decree, dr order, within which to give notice of appeal, and this act shall not be deemed to reduce or shorten the time now provided by law in any instance for filing notice of appeal to less than thirty days from date of entry of original judgment, decree or order by reason of a party having filed a motion for new trial or other motion herein mentioned.

No question is raised with respect to the timeliness of. appellant’s motion to vacate, so we need only consider what followed.

Excluding appellee’s response to the motion to vacate filed on March 1, it is clear that nothing appears from the record to have occurred relative to any of the steps discussed in Section 2 of Act 123 from the filing of the motion until the docket entry of March 22 (setting a hearing on April 3), a lapse of forty one days.

.Thus, within the time allowed (thirty days) the appellant’s motion was not presented to the court, nor did the appellant ask the court to set the matter for a hearing, nor was the motion taken under advisement by the court, either on its own or at the request of appellant. It is clear that one of the foregoing must occur, otherwise the motion is deemed to be disposed of at the expiration of thirty days, just as if the court had actually denied it upon its merits. The decision in St. Louis Southwest Railway Company, supra, interprets the act accordingly.

We note, too, that while the decision in St. Louis S.W. Ry. Co., the court merely commended the procedure followed in that case of having the court write a letter that he was taking the motion under advisement, thereby avoiding “the uncertainty of oral testimony” to show compliance with Section 2, it did not state that such record entry was mandatory. However, that requirement was provided by the case of Jones v. Benton County Circuit Court, 260 Ark. 893, 545 S.W. 2d 621 (1977). In Jones, appellant filed a motion N.O.V. within the fifteen days ordinarily required for post-judgment pleadings, but nothing else transpired within the thirty days provided in Section 2, nor was notice of appeal filed in the time allowed. The court denied the appeal stating:

. . . We are unable to find any evidence in the record either written or oral that the motion was either presented to the trial court or that the matter was taken under advisement by the trial court within the time . required by Ark. Stat. Ann. § 27-2106.4, supra.

Section 3 provides that, where, as here, the motion is deemed to have been disposed of at the expiration of thirty days, a party desiring to appeal shall have ten days in which to file notice of appeal. The appellant, consequently, would have had ten days from March 11, or until March 21, in which to give timely notice of appeal. Obviously, notice of appeal was not filed within the time provided under Act 123 of 1963, and this court has no jurisdiction to hear the case on its merits. Davis v. Ralston Purina Company, supra.

It might be helpful to observe, in passing, that appellant is correct in arguing that suit was filed prematurely (before the cause of action accrued); however, the end result would have meant simply the dismissal and refiling of the suit, as it is abundantly clear that the appellant is indebted to the appellee in exactly the amount awarded by the trial court under the lease.

Affirmed.

Judges Howard and Newbern dissent.

•D.avid Newbern, Judge,

dissenting. The trial judge gave a reason for his decision which I believe was erroneous. The statute providing time limits on notice of appeal after a motion to vacate unequivocally states that the expiration of a “term of court” is irrelevant. Ark. Stat. Ann. § 27-2106.4 (Repl. 1979).

The appellant contends the trial court set the hearing on the motion to vacate within 30 days of the day it was filed. The appellee contends it was not set until 41 days after it was filed. Neither party asserts whether within the 30 day period after it was filed the appellant sought its disposition as required by the statute. We are left without knowledge why the trial judge set the hearing for April 3, 1979.

I could concur in the result reached by the majority if the trial judge had denied the motion for failure to pursue it in accordance with the statutory requirement. But as he did not, and as we do not know the extent to which the appellant pursued her motion, I believe we should give the trial judge an opportunity to focus on the correct issue. It may be that the trial judge would be able to say the appellant did or did not ask that the motion be set for hearing within 30 days of its filing. If she did ask, then she had ten days from the denial of her motion to file her notice of appeal. Ark. Stat. Ann. § 27-2106.5 (Repl. 1979). .

While I agree with the majority’s passing remark about the probable, although not inevitable, final result of this litigation, I cannot help but conclude a litigant must not be denied relief, such as an appeal might provide, on the basis of a technical failure unless we are sure such a failure has occurred or that the litigant has failed to carry her burden of showing no such failure. Here, we cannot say either of those, because the trail court ignored the applicable statute and thus failed to consider whether the appellant had pursued her motion as required by the statute.

I am also very reluctant to concur in that part of the opinion citing Jones v. Benton County Circuit Court, 260 Ark. 893, 545 S.W. 2d 621 (1977), as the opinion in that case seems to be based on expiration of “term time” despite the clear wording of the statute, as explained above. This case seems to give some support to the action of the trial judge in the case before us now. And yet it purports to apply the provisions of Ark. Stat. Ann. § 27-2106.4 (Repl. 1979). Just as in the case before us, the application of the “term time” rule was without explanation or reference to the statute which makes it inapplicable. I find the case just as mysterious as the action of the judge here, but regardless of that, I believe we should not say the appellant has not complied with the statute until we have some evidence one way or the other.

I would reverse and remand for a determination whether the appellant did or did not comply with the provisions of the statute.

Judge Howard joins in this dissent.