text:
    Patricia Kozel PARKER v. STATE of Arkansas
    CR 80-135
    606 S.W. 2d 746
    Supreme Court of Arkansas
    Opinion delivered October 27, 1980

      Paul Johnson, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted on two counts of theft of property in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). She was sentenced by the jury to 30-year sentences on each count, and the court ordered them served consecutively.

Appellant argues four points for reversal: (1) the court erred in failing to send copies of the instructions with the jury into the deliberation room; (2) the court erred in refusing to allow any reference to the term “sodium amytal interview;” (3) the court erred in admitting certain exhibits into evidence; and (4) the verdict was contrary to the evidence and law, and the evidence was not sufficient to support the verdict.

The facts reveal the appellant, or someone resembling her, opened a business checking account at the First American National Bank in the name of Lil Vending Machine Company. The person opening the account gave her name as Lillian Dickerson. She was subsequently identified, by the bank employee who opened the $10 account, as Patricia Kozel Parker. The account was opened on September 22, 1977. At that time a signature card was signed on the Lil Vending Machine account by a person who used the name Lillian Dickerson. During the trial this bank employee, Michael Landers, postively identified the appellant as the person who opened the account.

Another employee of the bank, Linda Johnson, tesified she thought the appellant was the same lady who came into a branch bank on September 29, 1977, and deposited three checks totaling $19,900 to Lil Vending Machine account and at the same time cashed a $10,000 check. The check which was cashed was payable to 1st American National Bank on the Lil Vending Machine account. This witness did not see the person transacting the business prepare the check or sign any of the papers. The witness stated “if this was the only $10,000 check cashed that day it must be the one I cashed for this party.” The deposit slip for the $19,900 was introduced as State’s Exhibit No. 3, and the three checks in the deposit were marked State’s Exhibit Nos. 4, 5 and 6. The witness was not absolutely positive in her identification of the appellant.

Another bank employee, Kathy Howard, positively identified the appellant as the person who deposited $23,900 to Lil Vending Machine account on September 30, 1977, and at the same time withdrew $11,000 by way of a check on Lil Vending Machine account payable to 1st American National Bank. The witness identified the deposit slip, and it was introduced as State’s Exhibit No. 8 and the three checks in the deposit of $23,900 as State’s Exhibit Nos. 9, 10 and 11. The state introduced Exhibit No. 12 as the check cashed by appellant. The witness could not definitely identify Exhibit No. 12 but stated it was the same amount of the one cashed and the same maker and payee.

Melissa Mayer, another employee, testified she was on duty at the main branch of the bank on October 6, 1977, when appellant brought the deposit book for Lil Vending Machine to her window with a deposit consisting of three checks totaling $25,290. The appellant also attempted to cash another check on that date. Upon request for identification the appellant stated she would have to go to the car to obtain it. She left in a hurry leaving behind the deposit book and the check she was trying to cash. She never returned to the window. This deposit slip was marked State’s Exhibit No. 13. This witness also positively identified the appellant as the person who was at her window on October 6, 1977. All three deposit slips were still in the book she left at the window.

The state called John Wiseman, Vice President Cashier at First American National Bank, who described his duties at the bank to include investigations of matters such as are in question here. All of the checks deposited to Lil Vending Machine account were returned for insufficient funds or accounts closed. Wiseman made an investigation of this account and in the course of his duties prepared a list of the checks deposited to the account and a list of the checks cashed on the account. These were introduced as State’s Exhibit Nos. 14 and 15, respectively. The deposits amounted to some $58,000, and the withdrawals amounted to an excess of $21,-000. The witness stated these lists were prepared in the course of his duties and for the purpose of making a claim against the bonding company. Appellant timely objected to all of the exhibits and the lists compiled by witness Wiseman.

The defense filed a motion in limine to prevent the state from referring to the term “psychosis” in relation to the defense of mental disease or defect. The court overruled the motion and stated the term “psychosis” was a word of art. The state then moved to prevent appellant from referring to a sodium amytal interview of appellant by psychiatrists or psychologists. The appellant desired to use the sodium amytal test results for the purpose of relating the type of examination given and to show that it was a proper diagnostic test. Appellant did not seek to introduce the results of the sodium amytal test to show the truth of the matter stated but only as a diagnostic procedure used in testing the appellant. The court eventually ruled there could be no reference to the sodium amytal interview. However, several doctors testified, in chambers, the test had been used for many years and was at the time of the trial a recognized diagnostic tool by the American Psychiatric Association although it was not in the desk handbook as such when the appellant was examined. The psychiatrists and psychologists were split in their opinion as to the appellant’s mental state. Three defense witnesses testified the appellant was suffering from hysterical neurosis, dissociative type, manifesting itself in the nature of “multiple personality.” Appellant contended it was her alter ego, Pam Lease, who did all these things. These witnesses, who relied upon the sodium amytal interview for diagnostic purposes, felt the appellant was unable to appreciate the criminality of her Conduct or reform her conduct to the requirements of the law. The state psychiatrist felt she was malingering and was without psychosis.

Before closing arguments commenced, the appellant’s attorney requested the court to send all instructions into the jury room in typewritten form. The court refused the request but told the attorney he could tell the jury, in his closing argument, that they could request the instructions be taken into the room by asking the judge for them. Since the closing arguments are not abstracted, we are unable to determine whether such information was relayed to the jury.

We first consider the argument that the court erred in failing to send typewritten copies of the instructions into the jury deliberation room. This matter is governed by the Rules of Criminal Procedure, Rule 33.3, which reads:

In the trial of all cases in courts of record wherein juries are employed, upon request of counsel for any party, or of a juror, it shall be the duty of the presiding judge to deliver to the jury immediately prior to its retirement for deliberation, a typewritten copy of the oral instructions given to the jury. The instructions shall be returned to the court by the foreman of the jury when the jury is dismissed.

We have not previously been called upon to interpret this rule. Therefore, we interpret it to mean exactly what it says. Since it is the expressed duty of the court to deliver the typewritten instructions to the jury prior to its retirement, when requested to do so, as the case here, we hold it to be prejudicial error for the court to fail to do so.

The second argument presented by appellant is the court erred in excluding any reference to the sodium amytal interview conducted by appellant’s doctors. This case is no different from most others when the defense of mental disease or defect is raised when psychiatrists and/or psychologists are called to testify on each side. The conclusions are almost always in direct conflict. This was the case here. In such cases cross-examination is extremely important to the defense.

Douglas A. Stevens, Ph.D., clinical psychologist, performed a sodium anytal interview with appellant but was prevented from testifying to this fact by the court. Dr. W. R. Oglesby, psychiatrist with the State Hospital, testified the appellant was “malingering and hysterical neurosis of the dissociative type.” It appears that Dr. Oglesby recognized the sodium amytal interview was a useful tool in the diagnostic process in cases such as the appellant presented. There is no question but that the American Psychiatric Association has acknowledged this test to be a useful diagnostic tool. The court, by rejecting any reference to sodium amytal interview, severely limited the appellant’s ability to cross-examine the state’s witnesses.

In view of the fact that the sodium amytal interview was merely one of the diagnostic tools used in reaching the conclusions by the various witnesses, we feel it was prejudicial error to refuse any reference to the sodium amytal interview. There was no request by the appellant to introduce the interview as such or to use the interview for the purpose of showing the truth of the matter stated therein. She was obviously following the reasoning in People v. Cartier, 51 Cal. 2d 590, 335 P. 2d 114 (1949); and People v. Lara, 12 Cal. 3d 903, 117 Cal. Rptr. 549, 528 P. 2d 365 (1975). Since there is no other proper way to refer to such interview other than a sodium amytal interview, we feel it was prejudicial error to refuse to allow any reference to the test fot cross-examination purposes. We are not willing to go as far as the California courts have in allowing the sodium amytal test to be inquired about on direct examination.

The third point argued by appellant is that certain items were improperly introduced into the record. We have given a description of the various exhibits claimed to have been improperly introduced in the facts section of this opinion. We will not describe each of the exhibits in detail at this point in the opinion. However, we will note the charge in the present case is one of theft of property and not a hot check charge. It is undisputed by both parties that records regularly kept in normal business procedures would be admissible under Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rule 803(6). This rule reads as follows:

Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

The exhibits prepared by witness Wiseman were not shown to have been kept in the regular course of business. As the record stands, they were prepared for a specific purpose, and there was no foundation to prove such records were kept in the regular course of business. Due to the fact that on retrial the exhibits may not be presented in the same manner, we will not attempt to state whether each and every one of them will be properly introduced at the next trial. We note in the case of Hale v. State, 252 Ark. 1040, 483 S.W. 2d 228 (1972), that the trial court refused to allow a card to be introduced into evidence because it could not be properly authenticated. However, it was shown the card was signed by an officer who kept such records in the ordinary course of business. In reversing the conviction in that case we stated:

The card should have been admitted in evidence. Our statute, which was copied from a federal act, allows a business record to be introduced as proof of a transaction or occurrence if the record was made in the regular course of business at the time of the event or within a reasonable time thereafter. The statute recites that all other circumstances relating to the record reflect its weight not its admissibility.

See also United States v. Morton, 483 F. 2d 573 (8th Cir. 1973).

In view of the fact that the case is being reversed for the reasons stated above, we will not comment further on the sufficiency of the evidence because we cannot be certain what evidence will be introduced at the next trial or whether a proper foundation will have been laid for the introduction of the exhibits.

Reversed and remanded.

Stroud, J., dissents.


source: Caselaw Access Project

author: John F. Stroud, Justice.

license: Public Domain

text:
    BITUMINOUS, INC. v. P. David UERLING, Individually and BURROUGH-UERLING-BRASUELL CONSULTING ENGINEERS, INC.
    80-140
    607 S.W. 2d 331
    Supreme Court of Arkansas
    Opinion delivered October 27, 1980

      Bridges, Young, Matthews, Holmes & Drake, for appellant.

      Jones, Gilbreath & Jones, for appellees.
   John F. Stroud, Justice.

This is an appeal from the dismissal of a malpractice action filed against a consulting engineer and his firm. We affirm the action of the trial court and agree that venue was not proper in Jefferson County.

On February 8, 1980, appellant filed suit against appellees and various other defendants (not involved in this appeal), alleging that the professional malpractice of the defendants in connection with the asphaltic overlay and other work to the runways and taxiways of Ft. Smith Municipal Airport has caused appellant to suffer considerable financial loss. Appellant, an Arkansas corporation having its principal place of business in Jefferson County, sought recovery of appellees jointly and severally for $283,590, plus interest, as compensatory damages and $1,000,000 in punitive damages. Appelee P. David Uerling is an individual and a resident of Sebastian County, and appellee Burrough-Uerling-Brasuell Consulting Engineers, Inc., is a professional corporation having its principal place of business in Sebastian County. On February 21, 1980, appellees filed a Special Appearance and Motion to Quash for the purpose of quashing the service on the basis that venue was not proper in the Jefferson County Circuit Court. Before the time for appellees to answer the complaint had expired, appellant obtained the permission of the court to take the depositions of appellee P. David Uerling and three other persons. Thereupon, appellees make another special appearance and requested the court to quash the subpoenas for the taking of the depositions. On that same day appellant requested an extension of time to respond to the motions to quash, which was granted. The next day appellees filed a motion to dismiss, again attacking venue, and a motion for a protective order and attorney’s fees, claiming such were necessary to prevent appellees from being unduly burdened and oppressed by the filing of the action in the improper court. On March 10, 1980, appellant filed its amended complaint, adopting all allegations of its original complaint and adding a prayer for damages of $150 for the conversion and negligent damaging of appellant’s straight edge by appellees. Appellees again specially appeared and requested that the trial court dismiss the complaint and amended complaint due to improper venue.

After reviewing the pleadings, affidavits and briefs of the parties, the court granted appellees’ motions to quash and dismissed appellant’s complaint and amended complaint. Alleging three points of error, appellant brings this appeal.

Appellant first contends that the trial court erred in finding that Ark. Stat. Ann. § 27-610 (Repl. 1979) did not control venue in this case at bar, a malpractice action. Ark. Stat. Ann. § 27-610 provides, in pertinent part:

All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of the injury, . . .

Appellant submits that although it is a corporation, it is nonetheless capable of suffering a “personal injury,” noting that Ark. Stat. Ann. § 27-109 (Repl. 1979) states “the word person includes a corporation as well as a natural person.” While it is true that for many purposes the term “person” does include a corporation, we are unwilling to extend that to mean that a financial loss suffered by a corporation is a personal injury within the meaning of § 27-610. In Arkansas Valley Industries v. Roberts, 244 Ark. 432, 425 S.W. 2d 298 (1968), this court held that the term “personal injury” as used in § 27-610 is limited to corporeal or physical injuries. Also, in Robinson v. Mo. Pac. Transportation Co., 218 Ark. 390, 236 S.W. 2d 575 (1951), this court quoted with approval from 56 Am. Jur., Venue, § 15, recognizing the theory that “a personal injury or injury to the person as these terms are used in the venue statutes is generally construed not to include every invasion of a personal right, such terms being usually limited to physical or bodily injuries.” We agree with the trial court’s finding that § 27-610 does not authorize venue in the instant case.

Appellant next contends that the trial court erred in finding that appellees’ request for a protective order and attorney’s fees did not amount to a waiver of their objection to venue in Jefferson County. The thrust of appellant’s argument is that seeking the protective order and attorney’s fees amounted to a prayer for affirmative relief from the court, which operated as a general appearance and, thus, a waiver of any venue objection. Appellant cites several cases discussing the difference between special appearances and general appearances, but this distinction was abolished July 1, 1979, with the adoption of the Arkansas Rules of Civil Procedure. See Rule 12(b) and Reporter’s Notes to Rule 12, No. 7. Furthermore, we do not think that appellees’ request for the protective order and attorney’s fees amounted to a waiver of their objection to venue, for the relief sought was in no way inconsistent with appellees’ claim of improper venue.

Appellant’s final contention is that the trial court erred in dismissing the complaint and amended complaint because of Ark. Stat. Ann. § 27-611 which authorizes venue for negligent damages or conversion of personal property. By amending its complaint to include an allegation of conversion, and negligent damage to personal property, appellant was seeking to set venue for both the malpractice and conversion claim in Jefferson County, pursuant to § 27-611, which provides:

Any action for damages to personal property by wrongful or negligent act, or for the conversion of personal property, may be brought either in the county where the accident occurred which caused the damage, or in the county where the property was converted, or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.

Appellee asserts that the amending of appellant’s complaint to include a claim of conversion was merely a ploy by appellant to attempt to acquire venue in the county of its residence for trial of the primary object of the complaint, the malpractice action. Further, appellee submits that the principle set out in Ozark Supply Co. v. Glass, 261 Ark. 750, 552 S.W. 2d 1 (1977), should control here, and we agree. In Ozark Supply Co. this court stated, at page 753:

The underlying policy as to venue in this state is that every defendant should be liable to suit only in the county of his residence or place of business, unless for other policy reasons there are statutes to the contrary. [Citations omitted.] This basic policy has always been considered as primary in construction of venue statutes, and properly so, unless other statutes are clearly in conflict with that basic policy. The convenience of the dedendant against whom a judgment may be rendered is usually considered more important than the convenience of the plaintiff. [Citation omitted.]

Finding no compelling reason to stray from the principle announced in Ozark Supply Co., supra, we affirm the trial court’s dismissal of appellant’s complaint and amended complaint.

Affirmed.

Holt, J., not participating.


author: Richard L. Mays, Justice.

text:
    David JEFFERSON v. STATE of Arkansas
    CR 80-139
    606 S.W. 2d 592
    Supreme Court of Arkansas
    Opinion delivered October 27, 1980

      E. Alvin Schay, State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

In September of 1978, following appellant’s negotiated plea of guilty to charges of burglary and theft of property, the trial court sentenced appellant by pronouncing a seven year sentence, suspending execution and placing appellant on probation for five years. Within eleven months of this sentence, appellant was again charged and convicted of burglary. For this burglary, the trial court imposed a seven year sentence, revoked appellant’s suspended and probated sentence, and imposed an additional seven year sentence, the sentences to run concurrently. On appeal, appellant’s sole contention is that the trial court erred in sentencing him on the revocation to more than five years, the term of his probation.

While only presenting a “no merit” argument as to the sufficiency of the evidence to sustain the burglary conviction, appellant argues that the alleged sentencing error on his revocation is not harmless because of the possibility that the burglary conviction might someday be reversed. Since we agree, as does the state, with the “no merit” argument and find substantial evidence to support the conviction of burglary, we have some difficulty perceiving any harm to appellant as a result of the seven year concurrent revocation sentence. Flowever, since appellant still has avenues of postconvictin relief available to challenge his burglary conviction, we shall indulge the possibility, however slight, of prejudice.

Appelllant’s argument concerning the length of the revocation sentence stems from the failure of the trial judge to comply with the applicable statutory provision in sentencing him in 1978. Although the trial court could have suspended the imposition of sentence or placed the appellant on probation, it could not do both since suspension is without supervision and probation requires the supervision of a probation officer. Ark. Stat. Ann. § 41-801(1) and (2) (Repl. 1977); Culpepper v. State, 268 Ark. 263, 595 S.W. 2d 220 (1980). Moreover, the trial court could not release appellant by pronouncing sentence and suspending execution but could only release him by postponing pronouncement of sentence for a specified period of suspension or probation. Culpepper v. State, supra. This limitation on the- method of sentencing enables the trial judge to impose any sentence which could have originally been imposed for the offense upon violation of the terms of a suspension of imposition of sentence or of a probated sentence, and is intended to serve as a stronger deterrent against further criminal conduct.

Although the trial judge originally improperly sentenced appellant, we fail to perceive any justification for limiting his sentence on revocation to five years. In fact, had the judge not improperly pronounced a sentence of seven years, appellant’s sentence on revocation could have been as great as twenty years. Ark. Stat. Ann. § 41-901 (l)(b) (Repl. 1977); Culpepper v. State, supra. There is absolutely no basis upon which to assert that appellant might have believed his five year probationary period was the extent of his jeopardy on the original sentence since his sentence of seven years suspended with five years probation was negotiated with the prosecuting attorney by appellant’s defense counsel. The clear implication of the original sentence was incarceration of seven years for a probation violation within five years. Appellant violated his probation within one year and was appropriately committed to the penitentiary for seven years. If any prejudice from the trial judge’s sentencing error occurred, it was to the interests of the state, not appellant’s.

Affirmed.


author: Ernie E. Wright, Chief Judge.

text:
    Jimmy D. TAYLOR v. O. D. FUNK, d/b/a O. D. FUNK COMPANY
    CA 80-120
    606 S.W. 2d 605
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980

      Raymond A. Harrill, for appellant.
    No brief for appellee.
   Ernie E. Wright, Chief Judge.

Appellant brought suit against appellee on account for accounting services for $1,-510.00. The trial court heard the evidence without a jury and rendered judgment for appellant in the sum of $300.00. Appellant filed a motion for a new trial grounded upon Rule 59 (a), ARCP, alleging the trial was prematurely terminated and appellant was denied an opportunity to present rebuttal evidence. Appellee filed a response alleging appellant was offered full opportunity at trial to present his entire case.

Formal hearing on the motion for new trial was waived by appellant and the motion was overruled. Appellant brings this appeal from the order denying the motion for new trial and contends the trial court erred in overruling the motion.

Rule 59 (a), (1), ARCP, provides that a new trial may be granted for irregularity in the proceedings or abuse or discretion which prevented the aggrieved party from having a fair trial.

There was no court reporter present at trial and the record contains no transcript of the evidence and trial proceedings. The judgment approved by counsel for appellant as to form makes no mention of appellant being deprived of the right to offer rebuttal witnesses.

Appellant has not complied with Rule 6 (d), ARAP, which authorizes appellant to prepare a statement of the evidence or proceedings from the best available means, including his recollection, to supply a record for appeal absent a stenographic transcript. The rule provides that a copy of the statement shall be served on appellee, who may serve objection or proposed amendments. Thereupon, the objections or proposed amendments shall be submitted to the trial court for settlement and approval. Upon approval such record shall be included in the record on appeal.

Rule 6 (c), ARAP, provides for abbreviation of the record by agreement of the parties, but the record before us contains no such abbreviation.

The burden is upon appellant to file in this court a record sufficient to show the trial court erred. Appellant’s motion for new trial and an affidavit in support thereof are not acceptable as a substitute for the record of the trial proceedings, and neither reflect the proffer of rebuttal evidence by appellant or any objection to any action of the trial court.

Absent a record of what transpired at trial, we have no basis for reviewing the asserted error. Therefore, we affirm the order of the trial court denying a new trial. Armbrust v. Henry, 263 Ark. 98, 562 S.W. 2d 598 (1978).

Affirmed.


author: Steele Hays, Judge.

text:
    MIDWEST STEEL COMPANY and MISSION INSURANCE COMPANY v. James L. MULANAX
    CA 80-156
    606 S.W. 2d 606
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980

      Davis, Bassett, Cox & Wright, for appellant.
    No brief for appellee.
   Steele Hays, Judge.

This case involves successive, disabling injuries subject to the Arkansas Workers’ Compensation Act.

On May 25, 1976, while employed by appellant, Midwest Steel Company, the claimant-appellee, James L. Mulanax, sustained a crushing injury to his right arm, causing a complete loss of use of the arm below the elbow. Midwest accepted the claim as compensable and has paid medical expenses and temporary total disability benefits covering 85 weeks.

Prior to the crushing injury, on November 11, 1975, claimant suffered a traumatic amputation of three fingers on his left hand, leaving only the index finger and thumb. The injury occurred while claimant was engaged in farm labor and because of the agricultural exemption of the Workers’ Compensation Act, no benefits were payable.

Still earlier, on Feburary 26, 1973, claimant sustained a work-related injury while employed as a truck driver by D. H. Mcjunkin. The injury required the surgical removal of three herniated discs and resulted in a 15% permanent partial disability, for which claimant received the sum of $3,307.50.

In connection with the Midwest claim, the Commission determined that claimant was totally and permanently disabled as a result of the combined injuries and found that payments from the second injury fund were not applicable. The Commission gave Midwest credit under the Rule of Apportionment for the dollar amount actually received by claimant for the back injury and, further, gave Midwest credit for $3,802.50, the dollar amount that the Commission calculated the claimant would have received for the injury to his left hand had the injury been covered by workers’ compensation. The total of these two amounts was subtracted from the maximum award payable under the act, $50,000.00, and thus the ceiling on Midwest’s liability under the claim was determined to be $42,890.00. On appeal to the Circuit Court the award was affirmed and is now before us.

Midwest argues that the Commission erred in failing to give sufficient credit for the claimant’s pre-existing disabilities and, obliquely, that the spirit and intent of the second injury sections of the Workers’ Compensation Act [Ark. Stat. Ann. (1979 Repl.) § 81-1313(f)] demonstrates that where the subsequent injury is a scheduled injury, the Second Injury Fund should be reponsible for the total and permanent disability benefits in excess of the scheduled injury benefits.

While this appeal was pending, and after submission, the Supreme Court granted certiorari to this court in the case of Chicago Mill and Lumber Company, Appellant v. Starling Greer, Employee, and State of Arkansas, Second Injury Fund, Appellees, (No. 80-157). Because of the similarity of issues between the Chicago Mill case and this case, and the absence of precedent, a decision in the present case was withheld awaiting the outcome of Chicago Mill and Lumber Company v. Greer.

In Chicago Mill, the Commission was affirmed by this court in an opinion joined in by three judges, with three judges dissenting. The decision was delivered on July 2, 1980, 269 Ark. 895,601 S.W. 2d 583, and affirmed the Commission unanimously to the extent of holding that the second Injury Fund was not applicable for the reason that the second injury had not resulted in a total loss of the member itself. The three to three division in our ranks was not over the application of the Second Injury Fund, but over the method of apportionment of the successive injuries. However, the decision of the Supreme Court in Chicago Mill, with one justice dissenting, held that the Second Injury Fund is applicable because there was afunctional loss of the member which the Supreme Court apparently equated with “total loss,” and governs the present case.

Since neither the claimant nor the Second Injury Fund filed briefs on appeal in this case, we believe the case should be left open on remand for such further arguments as the claiment, the employer and the Second Injury Fund deem appropriate in the light of the decision in Chicago Mill and Lumber Company v. Greer, and, therefore, we reverse and remand to the Circuit Court with directions to remand the case to the Commission for further consideration in accordance with our holding that the Second Injury Fund is applicable.

Reversed and remanded.


text:
    Jerry GRAY v. J. Sid DAVIS
    CA 80-246
    606 S.W. 2d 607
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980

      Hixson & Cleveland, by: R.H. “Buddy” Hixson, for appellant.

      Witt & Donovan, by: Ernie Witt, for appellee.
   Steele Hays, Judge.

On July 20, 1976, appellee, J. Sid Davis, entered into a “Co-operative Farming Agreement” with the Arkansas Game and Fish Commission, under which he was permitted to cut hay, plant and harvest crops on lands owned or controlled by the Commission. Under the Agreement, appellee was required to leave a portion of the crops in the fields for wild game. The Agreement was for a period of five years and was not transferable.

Subsequently, appellee arranged for appellant to cut hay on the property covered by the Agreement on a fifty-fifty basis. They later agreed to farm the acreage under the Agreement together and to divide the profits equally. The Game and Fish Commission was aware of the arrangement between these parties, but informed them that only Davis’ name could be on the Agreement and he would remain solely responsible to the Commission. Appellant and appellee farmed the property together until the winter of 1977, when appellee told the appellant that he could no longer continue the operation due to ill health. Appellee sold his equipment and his interest under the Agreement to a third party, George Tencleve, but remained the responsible party under the agreement with the Game and Fish Commission.

Appellant and Tencleve continued under the same arrangement as appellee and appellant except that they divided the acreage and harvested the crops independently of each other.

On January 20, 1978, appellee gave notice to appellant to vacate the property and brought an unlawful detainer suit when appellant failed to vacate. Appellant filed a counterclaim for damages, alleging that their agreement was to continue over the entire five years of the Co-operative Farming Agreement. The trial court, sitting as a jury, found for the appellee and ordered that possession of the disputed property be confirmed in the appellee. Appellant now brings this appeal.

Appellant’s first point for reversal is that the trial court erred in failing to find that an oral five year contract existed between the parties. He concedes that an oral agreement in excess of one year comes within the purview of the Statute of Frauds, but contends that partial performance renders the agreement enforceable. Ark. Stat. Ann. § 38-101 (Repl. 1962).

Many cases are cited by appellant for the rule that partial performance takes the contract out of the Statute of Frauds. Phillips v. Grubb, 112 Ark. 562, 167 S.W. 102 (1914) involved a situation where plaintiff brought an unlawful detainer action against defendant, alleging that defendant was a tenant of plaintiffs under an oral contract and that he unlawfully detained the property after the expiration of the term. The facts were that the parties had entered into an oral contract to rent a farm for a period of five years for an annual rent of $600. Defendant took possession of the land and made valuable improvements for two years. Then this action was brought. The Chancellor held that defendant was rightfully in possesssion and the Arkansas Supreme Court agreed, stating that paying the rent for two years and making valuable improvements on the property took the contract out of the operation of the Statute of Frauds.

In City National Bank v. Fite, 186 Ark. 266, 53 S.W. 2d 440 (1932), the Arkansas Supreme Court held that when a lessee entered possession of the farm, made valuable improvements theron, had planted, cultivated and gathered the cotton crop three years in a row and paid the rent in accordance with a five year oral contract, then partial performance took the case out of the Statute of Frauds.

In Marshall v. McCrary, 241 Ark. 184, 406 S.W. 2d 863 (1966), the Supreme Court found partial performance in the fact that appellant had made numerous payments to appellee sufficient to take an oral contract for the sale of land out of the Statute of Frauds. In Lake Village Implement Company v. Cox, 252 Ark. 224, 478 S.W. 2d 36 (1972), the court held that an oral contract for the sale of farm equipment was not within the Statute of Frauds where the equipment had been delivered and received by the purchaser and part of the purchase price had been paid.

However, all of the cases cited by appellant contained a distinct oral agreement for a certain time and a designated plan for the payment of rent or purchase price under the agreement. In the case before us, there was a disputed factual issue as to whether there was any continuing agreement between the parties and there was no clear understanding as to their respective duties or the conditions of operation. The trial court resolved the disputed issue in favor of the appellee and we regard that finding as consistent with the evidence. As the court stated, the parties had a “loose agreement” at best and while they may have had in mind participating over the span of five years, an express agreement to that effect was not established by the evidence. Where the evidence is in dispute or permits differing conclusions, the trial judge is in a better position than the appellate court to draw inferences and make findings necessary to a just result, hence, the rule that we affirm his decision if there is any substantial evidence to support it. It is sometimes said that the appellate court need consider only the testimony in favor of appellee. Love v. H. F. Construction Company, 261 Ark. 831, 552 S.W. 2d 15 (1977).

Appellant’s second point, in the alternative, is that the court erred in failing to find that a landlord-tenant relationship existed between appellant and appellee. He argues that when appellee and Tencleve reached their agreement, a year-to-year tenancy was established between appellee and appellant which requires the landlord to give notice to vacate on or before July 1, the month when the agreement as initially made.

Appellant cites Lacy v. Brickey, 245 Ark. 860, 435 S.W. 2d 443 (1968), for this point. In Lacy, appellants argued that the trial court erred in treating the contractual relation between the parties as a tenancy from year-to-year. The Supreme Court disagreed and affirmed the trial court, stating that appellee farmed the property subject to the dispute under an oral agreement from 1949 to 1963, that rent was paid on an annual basis, regularly, and that upon the undisputed facts the tenancy could only have been one from year-to-year.

The trial court addressed this issue in its findings and cited the case of Johnson v. Mantooth, 108 Ark. 36, 156 S.W. 448 (1913). In that case, the Arkansas Supreme Court held that where the owner of land makes a contract with another, whereby the latter is to cultivate the land and the crops produced are to be divided between the two parties, the relation of landlord and tenant may or may not result. The question is one of intention to be determined by the language used by the parties and their acts in carrying out the contract when such contract is oral. The Arkansas Supreme Court noted that the answer of defendant alleged that defendant was in possession under an oral contract, that he was to have possession for the year 1912 for the purpose of cultivating and growing crops and that the profits were to be divided evenly between appellant and appellee. Hence, the court found that there was a disputed factual issue and reversed a demurrer to defendant’s answer.

In the case before us, there is a disputed factual issue on this point. As we have said, the trial judge noted that after the initial agreement to cut and divide the hay, the parties continued to operate without a clear understanding as to duration or what each was to contribute. Under these circumstances, we find that there was substantial evidence to support the court’s finding. Moreover, it is highly questionable whether a landlord-tenant relationship could have existed between these parties to lands belonging to Game and Fish Commission, irrespective of their intent and appellant has offered no authority that such a relationship was created. The case of Love v. Cahn, 93 Ark. 215, 124 S.W. 259 (1909) describes the essential elements of a landlord-tenant relationship:

(1) Contract, either express or implied.
(2) The occupancy of the tenant must be in subordination to the rights of the landlord, and a reversionary interest must remain in the landlord.
(3) There must be a transmission of the estate to the tenant, and he must gain possession of the demised premises.
In 51 C.J.S. Landlord and Tenant, §2(2), it is stated:
It is inherent in the relation of landlord and tenant that the legal title to the land remains in the landlord and the tenant obtains only a usufructuary interest therein for the term of the tenancy.

Appellee, J. Sid Davis, had no legal title to the land, no leasehold, nor even a proprietary interest. Hence, he had no estate to pass to appellant, which is one essential requirement of a landlord-tenant relationship. It follows that no such relationship arose between the parties and the court below was correct.

Appellant’s third point for reversal is that the trial court erred in failing to assess damages for appellant. We need not address this point since appellant would only be entitled to damages if an enforceable contract existed. Since we uphold the findings of the trial court that there was no such contract, appellant’s claim for damages is moot.

Affirmed.


author: James H. Pilkinton, Judge.

text:
    Tion J. HASSEN v. WICKES LUMBER COMPANY and ARGONAUT INSURANCE COMPANY
    CA 80-219
    606 S.W. 2d 611
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980

      Anthony W. Bartels, for appellant.

      Barrett, Wheatley, Smith & Deacon, by: C. David Landis, for appellees.
   James H. Pilkinton, Judge.

This is a workers’ compensation case. The administrative law judge, after a hearing, concluded that claimant was permanently totally disabled but had failed to show that his disability was caused by an injury sustained in August of 1974. The claimant appealed to the Arkansas Workers’ Compensation Commission contending that he is permanently and totally disabled as a result of his August 9, 1974, injury. The Commission adopted the findings and opinion of the administrative law judge and affirmed. Claimant has appealed from the decision of the Commission.

This court’s inquiry on appeal is limited to the determination whether there is any substantial evidence to support the Commission’s findings, and we must affirm the decision of the Commission on the question of causation, unless there is no substantial evidence to support it. As stated another way, this court will not reverse the Arkansas Workers’ Compensation Commission’s finding that claimant failed to meet his burden of proof on causation unless fair-minded persons could not have arrived at a finding adverse to claimant. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979).

The claimant, age 56, started working full-time for Wickes Lumber Company in January of 1961. He first hurt his back in Plainfield,' Illinois, while working as assistant manager for Wickes. He underwent a spinal fusion in January, 1963. Following this operation, claimant returned to work and continued working for Wickes until sometime in May, 1973, when his back required a second operation which was performed in Dallas, Texas. The claimant underwent a procedure called “chemonucleosis”, which consisted of inserting chemicals into the disc to dissolve it. Since that time this operation has been outlawed by the Federal Drug Administration. Claimant entered into a joint petition settlement for this second injury.

As a result of the aforementioned, the claimant sustained substantial permanent disability to his back. Claimant had been assigned a 5% permanent partial disability to the body as a whole as the result of his 1963 injury; and also was given a 20% permanent partial disability rating in 1973 because of the injury then sustained to his back. In addition the claimant has suffered from other illnesses, including glaucoma, kidney stones and a total hip replacement on November 29, 1977, none of which were related to claimant’s employment.

The claimant sustained an injury to his back on August 19, 1974, while carrying a box for the Wickes Corporation in the Jonesboro store. Claimant was manager of the Jonesboro store at the time. The claimant continued working subsequent to the August, 1974, injury and worked through January 15, 1976, when he was forced to quit, on the advice of his physician, due to pain. The respondents, appellees here, paid him temporary total disability through September 1, 1978. The evidence showed that his healing period following the August, 1974, injury had ended prior to that date.

The Commission found that respondents have paid all appropriate benefits following the 1974 incident, and determined that claimant is not entitled to additional workers’ compensation benefits as a result of his August 19, 1974, injury. The sole issue presented for determination by this court is whether there is any substantial evidence to support this decision. In a workers’ compensation case, the courts must review and interpret the evidence, and all reasonable inferences deducible therefrom, in the light most favorable to the findings of the Commission and give the testimony its strongest probative force in favor of the action of the Commission, whether it favored the claimant or the employer. As pointed out in Clark v. Peabody Testing Service, supra, there is no inconsistency in the requirement that the Workers’ Compensation Commission must resolve all doubts in favor of the claimant and that the courts must affirm the Commission’s' decision if it is supported by substantial evidence.

In addition to the claimant, his wifé testified in his behalf but, basically, this case presented a medical question. There is medical testimony in the record to show that claimant had permanent disability to his back prior to August, 1974, and that the degree of disability he had after August, 1974, as a result of the back condition, was no greater than the disability he had as a result of his back condition before August, 1974. As pointed out above the claimant had a total hip replacement performed on November 29, 1977, which was not job-related but the evidence shows was totally disabling. The evidence was that appellant had continued to work until his hip gave him trouble, and the Commission concluded that claimant’s present total disability is because of his hip. In any event, the Commission found that claimant had failed to discharge the burden of proof required to establish causation between the August, 1974, injury to his back and his present total disability. As there is substantial evidence in the record to support this conclusion, we must affirm. Even if it could be said that the evidence might support a result different from that reached by the Commission, we are not at liberty to upset the decision of the Commission because we find substantial evidence to support it. See Clark v. Peabody Testing Service, supra, and cases there cited.

Affirmed.


text:
    William E. McPHERSON, Jr. v. Audra McPherson JOHNSON
    CA 80-244
    606 S.W. 2d 613
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980

      Russell Rogers, for appellant.

      Malcolm Smith and Jay Eldridge, for appellee.
   James H. Pilkinton, Judge.

Appellant questions the correctness of a circuit court judgment for the rent in favor of appellee. The rent in question accrued prior to a conveyance by appellee of her interests in the land to appellant, a co-tenant in possession, who had earlier entered into sole possession of the land under a contract to pay rent.

The parties are brother and sister. In 1974 they owned, together with another sister, as tenants in common, a certain farm, in Arkansas County. Each owned an undivided one-third interest in the land.

The two sisters entered into a lease agreement, as of January 1, 1974, by which they leased their respective interests in the land to their brother for farming purposes during 1974. The lease called for payment of cash rent of $5,000 to each lessor on or before December 31, 1974. With reference to payment of rent, the lease also provided:

... or due to the event of a forthcoming sale by the lessors to the lessee the cash rental shall be pro-rated monthly.

On the 24th day of April, 1974, the sisters entered into a contract of sale and purchaser with their brother under which he agreed to buy their undivided two-thirds interest in the land for the sum of $411,200.

On the 24th day of August, 1974, the appellee, and her sister who is not a party to this litigation, conveyed to the brother, the appellant here, their two-thirds interest by waranty deed.

In March of 1979 Audra McPherson Johnson, one of the sisters and appellee here, sued appellant for her share of the cash rent under the January 1, 1974, lease. Appellee contends that she is entitled to rent on a pro-rata basis arrived at by figuring the rent for eight months between the date of the lease agreement and the closing of the sale. Appellant denied the claim, and raised the affirmative defense of estoppel. The record consists of the pleadings, requests for admissions, response to requests for admissions, the lease agreement, the contract of sale, and the deed. No oral testimony was offered or received. At the close of the evidence, appellant, as defendant below, moved for dismissal. The trial court denied the motion and entered judgment against appellant for $3,333, the amount of the pro-rata rent claimed by the plaintiff.

It was the view of the trial court that the lease agreement of January 1, 1974, and the warranty deed of August 24, 1974, should be read together, and be considered as one transaction, thereby entitling appellee to her pro-rata share for eight months of the cash rent under the lease agreement. This interpretation of the transaction might be correct except that the trial court obviously overlooked the specific provisions of the sales agreement executed by the parties on April 24, 1974. This document provided, among other things:

It is understood and agreed between the parties hereto that the 1973 state and county taxes payable in the year 1974 shall be paid by the party of the second part and the party of the second part shall have full rights to possession of the property as of January 1st, 1974. It is agreed that the parties of the first part shall pay the cost of the transfer stamps on the deed, the cost of preparing the deed and their own attorney’s fees. The party of the second part shall pay his own attorney’s fee and any mortgage origination costs. (Emphasis supplied).

The lease agreement had provided that appellant should pay all taxes and assessment due against the land in 1974, and that no deduction would be made for taxes or other expenses of the rental due the lessor. That provision was carried forward into the sales agreement, but no specific mention or reservation of accrued rentals were made in either the sales contract or the deed, although other matters of vital concern to the parties were specifically dealt with in the sale contract. No exceptions or reservations were made in the deed other than one dealing with oil, gas and minerals which is not germane to the issue before us. The sales agreement set out specifically that the party of the second part (appellant) shall have full rights to possession of the property as of January 1, 1974.

The undisputed evidence shows that the contract of sale was executed after the lease agreement; and that the warranty deed was delivered, not only after the lease, but after and pursuant to the contract of sale. Upon the delivery of the deed, the character of appellant’s possession was changed from that of tenant to purchaser, and the relation of landlord and tenant ceased, and there could thereafter be no rent due unless specifically reserved. We find no reservation of rent here. See Ark. Stat. Ann. § 50-401 (Repl. 1971).

It is well settled that a deed conveying the title of land in fee simple carries with it the right to collect the rents; and, unless the deed reserves the right in the grantor to collect and use the rents, these pass as a necessary incident with the land to the grantee. Nelson v. Forbes and Son, 164 Ark. 460, 261 S.W. 910. That case also points out:

Where the deed is absolute on its face and contains no reservation of the rents, proof of an oral reservation is not admissible. Gibbons v. Dillingham, 10 Ark. 9; Hardage v. Durrett, 110 Ark. 63; Broderick v. McRae Box Co., 138 Ark. 215. This is true although the conveyance is to tenant in possession who' entered under a contract to pay rent. Barfield Mercantile Company v. Connery Co., 150 Ark. 428.

The case of Nelson v. Forbes, supra, and earlier case law, recognize the fact that an agreement to pay rent for the year in which a conveyance is made may be shown as a part of the consideration for the deed, and that the admission of oral proof of such an agreement would not offend any of the established rules of evidence; but the record here shows no such agreement. On the contrary, the sales contract executed in April of 1974 specifically provides on its face that the appellee and her sister, as sellers, agreed to accept the sum of $411,200 as full consideration for the sale of their undivided two-thirds interest in the said lands. No mention is made of the rents as being a part of the consideration, and no reservation of rents was made in either the sales contract or in the deed.

We have concluded that the trial court was in error in refusing to grant appellant’s motion to dismiss. Therefore the judgment is reversed and the case dismissed.


author: James H. Pilkinton, Judge. David Newbern, Judge,

text:
    Merrily COONEY v. Charles L. DANIELS, Director of Labor, and the UNIVERSITY OF ARKANSAS
    E 80-101
    606 S.W. 2d 615
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980
    Appellant, pro se.

      Herrn Northcutt, for appellee.
   James H. Pilkinton, Judge.

This is an appeal from the denial of a claim for unemployment benefits.

The appellant resigned from her job as a secretary with the University of Arkansas on January 3, 1980. Her primary reason for quitting was to follow her husband to a new place of residence. He had taken a job in Akron, Ohio. The appellant arrived at her new place of residence on January 5, 1980, but she did not file a claim or register with the Ohio employment agency until February 6, 1980.

On February 21, 1980, the Arkansas Employment Security Agency denied her benefits under Section 5(a) of the Arkansas Employment Security Law [Ark. Stat. Ann. § Sill 06(a) (Repl. 1976)] as it was determined she voluntarily quit her last work to follow her spouse to a new place of residence, but did not, in all respects, become fully available for work. Claimant appealed that determination.

Evidence for the Arkansas Appeal Tribunal was taken in Akron, Ohio, on April 4, 1980, and on April 17, 1980, the Appeals Referee for the Arkansas Employment Security Division affirmed the decision of the Agency denying claimant benefits under Section 5(a). On May 15, 1980, the Board of Review upheld the decision of the Appeal Tribunal denying appellant benefits.

Appellant has now appealed to this court and, although it is not totally clear what her points on appeal are, the thrust of her argument seems to be that there is no substantial evidence to support the Board of Review’s decision.

A review of the record shows that appellant arrived in Akron on January 5, 1980. She spent the first week to ten days getting her home organized and her children in school. Around January 14, 1980, the appellant started looking for work, first, by sending out resumes in response to job ads in the newspapers. During the week ending January 19, 1980, the appellant first began to actively seek work according to the record. The appellant went to the federal building to check on Civil Service employment, and she also checked with the Firestone Company about employment. Firestone informed appellant that she needed to go to the local employment office to apply for a job with their company. On February 6, 1980, the appellant went to the local unemployment officer to register for employment. While she was in the unemployment office, she was referred to the unemployment insurance section, and she then applied for unemployment compensation. This was just over a month after her arrival in Ohio.

Ark. Stat. Ann. § 81-1107 (d)(7) makes the findings of the Board of Review, as to the facts, conclusive, if supported by evidence and in the absence of fraud. Judicial review is confined to questions of law, and we must give the successful party the benefit of every influence that can be drawn from the testimony, viewing it in the light most favorable to the successful party, if there is any rational basis for the Board’s findings based on substantial evidence. Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978). Even though there is evidence upon which the Board of Review might have reached a different result, the scope of judicial review is limited to a determination whether the Board could reasonably reach its results upon the evidence before it and a reviewing court is not privileged to substitute its findings for those of the Board even though the court might reach a different conclusion, if it had made the original determination upon the same evidence considered by the Board. Harris v. Daniels, supra. Even if the evidence is undisputed, the drawing of inferences is for the Board, not the courts. Harris v. Daniels, supra.

The Board of Review found that claimant did not immediately reenter the labor market within the meaning of Section 5(a). Although we are sympathetic with appellant’s claim, we find there is substantial evidence to support the decision of the Board of Review, and therefore must affirm.

Affirmed.

Newbern, J., concurs.

David Newbern, Judge,

concurring. I believe the issue in this case is not whether there is substantial evidence to support the Board’s determination. There was no factual dispute. The question, rather, is one of interpretation of the term “immediately” as it is used in Ark. Stat. Ann. § 81-1106(a) (Repl. 1976).

Had it been the intent of the General Assembly to permit a spouse time to do the kinds of chores, incident to moving, that took this appellant’s time just after her move, I believe the words “within reasonable time” would have been used. The words “immediately” does not permit the kind of delay which occurred here, Fant v. Daniels, et al., 270 Ark. 424, 605 S.W. 2d 473 (Ark. App. 1980), therefore, I concur in the result.


author: Marian F. Penix, Judge.

text:
    JOHN E. BRYANT AND SONS LUMBER COMPANY, INC. v. Joe MOORE, James W. GARRISON, Jr. and Kathy B. GARRISON, His Wife, and U.S. DEPARTMENT OF AGRICULTURE, FARMERS HOME ADMINISTRATION
    CA 80-233
    606 S.W. 2d 617
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980

      Murphy, Blair, Post & Stroud, by: Robert D. Stroud, for appellant.

      Pickens, Boyce, McLarty & Watson, by: Tim F. Watson, for appellees.
   Marian F. Penix, Judge.

The question in this case is whether a materialman filed his lien within the time period required by law.

The appellant Lumber Company furnished building materials to a contractor who was building a house for appellee James W. and Kathy B. Garrison. The Lumber Company sued for a $2,088.39 judgment and for a judgment impressing its materialmen’s lien against the Garrisons’ property. The Garrisons answered and affirmately pled that no materials were furnished or services were performed by the Lumber Company within the statutory time allowed for a materialmen’s lien. The Lumber Company’s complaint made the U.S. Department of Agriculture a party to the action because the Farmers Home Administration had an interest in the property. The United States of America filed pleadings to remove to Federal Court. However, the complaint against the United States was dismissed resulting in no further federal jurisdiction. The Garrisons amended their answer asserting that the Arkansas materialmen’s lien statute is unconstitutional. We find no merit in this argument. See South Central District of the Pentecostal Church of God v. Bruce-Rogers Co., 269 Ark. 130, 599 S.W. 2d 702 (1980).

Ark. Stat. Ann. § 51-613 requires a lien to be filed with the Circuit Court within 120 days after work or labor is performed, or material is furnished and also requires a just and true itemized account of such material furnished and a correct description of the property to be charged with said lien.

The Trial Court found that no lien exists for the reason that a preponderance of the evidence does not show a delivery of materials within 120 days of the filing of the complaint. The Lumber Company appeals.

The Lumber Company contends the Court erred in finding that it had not supplied building materials that became incorporated into improvements on the property in question within 120 days of filing a suit to impress and foreclose a materialmen’s lien. The Lumber Company concedes that unless it proves a patio door listed on invoice number 97430, dated October 13, 1976 was actually delivered on October 13, 1976 and incorporated into the property, that it cannot prevail. The lawsuit to impress the lien was filed February 10, 1977.

The manager of the Lumber Company, Donnie Bryant, testified all delivery tickets or invoices were prepared the date of delivery and that a patio door was delivered to Garrisons’ house on October 13, 1976. This is a disputed question of fact. Further, Ray Dean of McCarroll testified he delivered the patio door on October 13, 1976. Mr. Garrison testified there is only one patio door in his house and it was in place at his house of August 18, 1976. He further stated he was positive about the date because August 18 is his mother’s birthday and on that day in 1976 he, his mother, and a number of relatives gathered in Newport to celebrate the birthday. He stated they toured his new home and the patio door was in place at that time. The Court made a finding of fact the patio door was in place on August 18, 1976. By this finding the Court precluded the delivery of a patio door on October 13, 1976, thus eliminating October 13, 1976 as the possible date of delivery of the last item to the Garrison’s house.

The Lumber Company introduced many exhibits. One exhibit was ticket number 92987 which recited 250 feet of base shoe were delivered and charged to the Garrison job. Mr. Garrison testified the house had shag carpet and there was no need for base shoe except in the two bathrooms — which would require far less than 250 feet.

Another ticket was introduced was number 95249 reciting delivery and charging to the Garrison job three pieces of paneling described as “grayish black”. Mr. Garrison testified his house was paneled throughout with a light green with brown paneling.

Several other tickets were introduced into evidence. However, as stated above, the crucial fact to be determined, was whether the patio door listed in the October 13, 1976 invoice was actually delivered and incorporated into the Garrison house. This is the only ticket which is date late enough to come within 120 days of the February 10, 1977 complaint.

The Chancellor weighed the evidence and assessed the crediblity of the witnesses and made his decision.

Our Court in Wells v. Griffin, 266 Ark. 763, 586 S.W. 2d 239 (Ark. App. 1979) cites Neal v. Neal, 258 Ark. 338, 524 S.W. 2d 460 (1975):

Chancery cases are reviewed de novo on appeal, but the Chancellor’s decree will not be reversed on disputed facts unless the findings are against the preponderance of the evidence since the Chancellor is in a better position to evaluate witnesses’ testimony as he hears them testify and observes their demeanor.

From a careful review of the record we find substantial evidence to support the finding of the Chancellor. We cannot say the Chancellor abused his discretion, nor can we say his finding is against the preponderance of the evidence.

Affirmed. The appellee shall be reimbursed for the cost of his brief.


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

text:
    MIDWEST DREDGING COMPANY and CONTINENTAL INSURANCE COMPANY v. Terry Jo ETZBERGER
    CA 80-309
    606 S.W. 2d 619
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980

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

      Herby Brascum, Jr., for appellee.
   Marian F. Penix, Judge.

Terry Joe Etzberger, appellee, was injured while he was working for Midwest Dredging Company. The accident resulting in the injury occurred on the Yazoo River in the state of Mississippi. Midwest Dredging Company is an Arkansas coporation with its principal place of business in Fort Smith, Arkansas. Etzberger is a resident of Perry County, Arkansas. Etzberger’s brother, who was working in Louisiana for the appellant company Midwest, called Etzberger from Plaquemine, Louisiana telling him of a job opening with Midwest. Etzberger went to Plaquemine and was interviewed by Midwest’s foreman, Harry Faulkner. Etzberger filled out a W-2 form in Louisiana and began work for Midwest. At no time did Etzberger perform any work for Midwest in the state of Arkansas. The Commission found it had jurisdiction because a “contract for hire”; was made in the state of Arkansas. The appellants, Midwest and its carrier, Continental Insurance Company, have appealed the Commission’s decision.

Midwest contends there is no substantial evidence a contract for hire was consummated in Arkansas. Therefore, Midwest contends the claim for benefits should be brought either in the state of Mississippi or Louisiana where Etzberger had an adequate remedy.

Midwest and Etzberger both cite International Paper Company v. Tidwell, 250 Ark. 623, 446 S.W. 2d 488 (1971):

We have no hesitation holding that where the contract of employment is entered into in this state between an Arkansas resident and an employer who was localized as the resident or who maintains an office which exercises general supervision and control over the employment which is not carried on at a fixed location, the Arkansas Workers’ Compensation Act applies and the Arkansas Workers’ Compensation Commission had jurisdiction, even though the injury occurred in a state in which it was contemplated by the parties that the employment could be entirely performed. The result is consistent with our previous decisions earlier cited. It is also harmonious with Restatement of Law, Conflicts of Law, § 398.

Midwest attempts to distinguish the case at hand. Tidwell, a resident of Arkansas, reported to the employer’s office at Camden where he took a physical examination prior to reporting to work at Jefferson, Texas. Midwest contends Tidwell was actually hired in Arkansas as distinguished from Etzberger who, Midwest contends, was actually hired in Louisiana. Midwest cites several decisions from other jurisdictions which seem to hold the pivotal point to be decided is the state where the actual “contract of hire” occurs. Midwest argues Etzberger did not have a “contract of hire” prior to reporting to work at Plaquemine, Louisiana because Etzberger’s brother was not in a position to hire or fire anybody.

Justice Fogleman, writing in Tidwell, supra, said:

In considering cases involving out-of-state accidents, we have followed a policy of liberality rather than restrictiveness. In McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W. 2d 608, we held that a Mississippi resident, who was a traveling salesman for an Arkansas concern, injured in an accident in Mississippi, was entitled to pursue his claim against his Arkansas employer under Arkansas law in spite of the fact that he had been paid maximum benefits under Mississippi law for the same accident by a Mississippi employer. We also rejected a narrow and restricted construction when we said that an employment did not cease to be “carried on in this state” by reason of only temporary and incidental operations in another state, in holding that an employer was subject to the act, even though he did not have five employees, unless those working in Missouri at the time one of them was injured were counted. Feazell v. Summers, 218 Ark. 136, 234 S.W. 2d 765. We also found no sound reason that the laws of a state in which an employee was injured could keep this state from discharging its contractual obligation under the Workmen’s Compensation Act to one of our citizens. Gentry v. Jett, 235 Ark. 20, 356 S.W. 2d 736.
In considering federal constitutional limits on application of state laws in compensation cases, Professor Larson points out six grounds on which the applicability of a particular compensation act has been asserted. They are:
(1) Place where the injury occurred;
(2) Place of making the contract;
(3) Place where the employment relation exists or is carried out;
(4) Place where the industry is localized;
(5) Place where the employee resides; or
(6) Place whose statute the parties expressly adopted by contract.
Professor Larson then expresses the opinion, which seems to be supported by authority, that the state which was the locus of any one of the first three items and perhaps of the next two, can constitutionally apply its statute if it wants to, in spite of “full faith and credit” attacks. 3 Larson’s Workmen’s Compensation Law 368, § 86.10.

Etzberger’s brother called him about a job opening. Etzberger accepted the job and started for Louisiana. He didn’t go to Louisiana seeking employment. He knew there was a job for him when he reached Louisiana. He filled out the W-2 in Louisiana because it an easier, more practical location for him to do so. Etzberger verbally accepted the job described by his brother. He ratified his acceptance by going immediately to Louisiana to fill the job.

We find the Arkansas Workers’ Compensation Commission has jurisdiction of this cause. We find substantial evidence in the record for the purpose of the Arkansas Workers’ Compensation Law from which to conclude the contract of hire occurred in Arkansas, thus giving the Arkansas Workers’ Compensation Commission jurisdiction of this claim. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979).

Affirmed.

Newbern, J., concurs.

Wright, C.J., Piikinton, J., and Hays, J., dissent.

David Newbern, Judge,

concurring. Contrary to the majority opinion, I believe the sole question is whether there was substantial evidence in the record to support the commission’s factual conclusion that the contract was entered in Arkansas. This decision does not involve the need for a liberal interpretation of the Act, and thus I find the discussion of International Paper Company v. Tidwell, 250 Ark. 623, 466 S.W. 2d 488 (1971), unnecessary if not misleading.

In addition, I disagree with the statement that the appellee was “interviewed” in Louisiana. This is a factual conclusion that appellants would have us reach. I find substantial evidence that the job was being held for the appellee by Midwest, and thus I concur in the result.

James H. Pilkinton, Judge,

dissenting. I cannot agree with the three of my fellow judges who are affirming this case. The affirmative opinion (there is no majority here) states “We find substantial evidence in the record for the purpose of the Arkansas compensation law from which to conclude the contract of hire occurred in Arkansas, thus giving the Arkansas Workers’ Compensation Commission jurisdiction of this claim.” (Emphasis supplied). I cannot find such evidence.

Both the appellant and appellee rely on International Paper Company v. Tidwell, 250 Ark. 623, 466 S.W. 2d 488 (1971). I certainly have no problem applying the law of that case to the facts in the case at bar. It seems to me that Tidwell certainly supports the position of appellant here; and I would reverse this case.

The evidence shows that Etzberger’s brother was a laborer himself, and was not in a position to hire anyone. The brother simply called Etzberger and told him over the phone about a job opening in another state. The record shows that Etzberger, acting on this information, went to Louisiana seeking a job. He was interviewed there by a person who did have authority to hire him, and he was then employed. Therefore, under the facts of this case, the claim for benefits should be filed either in Louisiana, where Etzberber was hired, or in Mississippi, where the accident occurred. He has an adequate remedy in either of those states.

In my opinion, the Arkansas Workers’ Compensation Commission does not have jurisdiction because, under this record, there is no substantial evidence to show that the “contract for hire” was made in Arkansas. Therefore I would reverse and dismiss.

I am authorized to state that Wright, C.J., and Hays, J., join in this dissent.


author: George Howard, Jr., Judge. Marian F. Penix, Judge,

text:
    Charles WALKER v. J & J PEST CONTROL and AETNA INSURANCE COMPANY
    CA 80-214
    606 S.W. 2d 597
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980

      David J. Potter, for appellant.

      Thomas M. Bramhall, for appellees.
   George Howard, Jr., Judge.

On January 10, 1980, the Workers’ Compensation Commission denied appellant’s claim for disability and medical benefits purportedly related to injuries by exposure to chemicals used in connection with his employment — pest control. The Commission found that claimant failed to prove his claim by a preponderance of the evidence.

On January 29, 1980, after engaging the services of another counsel, claimant filed a motion for rehearing before the Commission, alleging:

. . Claimant has a continuing medical disability. . . . [T]he disability is rare and is not entirely understood by the medical profession. . . .
“That Claimant has received new evidence which, when fully developed . . . will prove Claimant’s entitlements to compensation. . . ,”

Respondents, in resisting claimant’s motion, argued essentially that there is no provision in the Arkansas Workers’ Compensation Act or the Rules of the Commission for a motion for rehearing; and that claimant has not demonstrated the purported new evidence, which respondent in effect denies that such evidence should be so characterized, could not have been discovered with the exercise of reasonable diligence prior to the submission of the case to the Commission.

On February 11, 1980, the Commission stated in communication to counsel:

“The Full Commission is denying the motion for rehearing filed by claimant in the above styled case. It is possible that the motion would be more properly filed as a motion to remand from the Court of Appeals. . . .” (Emphasis added)

We view the Commission’s posture in denying claimant’s motion for rehearing as not resting on the merits of the motion, but on the theory that the Commission was without jurisdiction to entertain the motion even if it were inclined to do so.

We are of the view that the Commission does have authority to consider a motion for rehearing which is timely filed.

While the Rules of the Commission do not seem to deal with the problem in this appeal, we are persuaded that Rules 13 and 23 of the Commission’s Rules authorize reasonableness on the part of the Commission in a variety of circumstances dealing with the prosecution of claims for benefits, in order that the ends of justice may be served. Hence, a liberal construction of the Commission’s Rules lends support to the argument that the Commission does have authority to entertain a petition for rehearing when based on reasonable grounds. Indeed, a quasi-judicial commission should not be deprived of the opportunity to reconsider its ruling, where, as here, the proceedings involving an employee’s claim for injury or death, in the course of his employment, shall be exclusive of all other rights and remedies. It seems that due process and equal protection would require nothing less.

In 100 C.J.S., Workmen’s Compensation § 660, page 1001, it is provided:

“Where the statute authorizes the commission, on application of either party, to ‘set the award aside and grant a new hearing,’ an employee denied compensation has the same right to a rehearing thereunder as the employer and insurer would have in a case where compensation is granted, and the same principle is applicable where a rule of the commission authorizes parties aggrieved or dissatisfied with an award, order, or decision to apply for a rehearing thereof.”

Ark. Stat. Ann. § 81-1362 (Repl. 1976) provides:

“The Workers’ Compensation Commission is hereby authorized to adopt such rules and regulations and to prescribe such forms as it shall deem necessary or desirable to properly carry out the purpose and intent of this Act.”

Rule 2 of the Rules of the Arkansas Workmen’s Compensation Commission states:

“The rules of the Commission are subject to amendment at any time, and the Commission will adopt additional rules whenever, in its judgment, the same are advisable.”

Inasmuch as § 81-1326 authorizes the Commission to reconsider “any compensation order, award or decision”, on its own motion or upon application of any interested party and “upon such review may make an order or award terminating, continuing, decreasing or increasing for the future the compensation previously awarded”, it seems plain that due process of law dictates that an employee who has been denied benefits should be afforded the same oppportunity to have his claim reconsidered where he has discovered subsequent to the denial of benefits that he has a meritorious claim. Appellant’s motion was filed within 18 days after the Commission’s original order.

Moreover, § 81-1325(b) makes it clear that the decision of the Commission does not become final for 30 days, and supports the concept that the Commission has jurisdiction during such 30 day period to reopen the case for further evidence and modification of the decision. See: Mason v. Lauck, 232 Ark. 891, 340 S.W. 2d 575 (1960).

Section 81-1362, which empowers the Commission to adopt rules and regulations, is predicated on the assumption that the Commission will adopt such rules and regulations that will carry out the beneficient and remedial purposes of the Workers’ Compensation Act and not frustrate a claimant’s legitimate efforts to present his case.

It is basic that the Commission must take a liberal view of the Act, so where one inference would support an award, and another inference would defeat it, the construction favorable to the claimant should be adopted, if factually sound. Stout Construction Company v. Wells, 214 Ark. 741, 217 S.W. 2d 841 (1979). A fortiori, an inference which supports jurisdiction on the part of the Commission to entertain appellant’s motion for rehearing should be adopted.

We are further persuaded that the Commission should have considered a hearing on appellant’s motion for rehearing even though counsel waived a hearing. Because of the circumstances surrounding this case and the nature of claimant’s ailment, we are persuaded that the Commission had an affirmative duty to schedule a hearing.

Reversed and remanded with directions to determine the merits on the appellant’s motion for rehearing.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. The majority, in reversing the unanimous decision of the Commission, is granting a new hearing for the taking of new evidence. This evidence was available, but not submitted, prior to the rendition of the Commission’s Opinion. Both of the letters which claimant now wishes the Commission to consider as “new” evidence were received by the claimant’s attorney prior to a decision on his claim. Dr. Y. W. Au wrote a detailed letter on November 13, 1979 in which he indicated the claimant had been exposed to pesticide poisoning. On November 15, 1979 the claimant was examined by a Dr. Peters of Dallas. The physician stated he had been over-exposed to pesticides. The claimant’s appeal to the Full Commission was submitted on briefs November 21, 1979- The Full Commission denied and dismissed the claim on January 10, 1980. The briefs do not contain any of this evidence, though it was available at the time of submission. Further, the record does not indicate any request to the Commission to have a hearing for the purpose of introducing additional evidence. This is required by Rule 14.

Introduction of Evidence. All oral evidence or documentary evidence shall be presented to the designated representative of the Commission at the initial hearing on a controverted claim, which evidence shall be stenographically reported. Each party shall present all evidence at the initial hearing. Further hearing for the purpose of introducing additional evidence will be granted only at the discretion of the hearing officer or Commission. A request for a hearing for the introduction of additional evidence must show the substance of the evidence desired to be presented.

There is not even an attempt to comply with this rule.

Likewise, a new hearing is not warranted under Rule 23.
In any case, where good cause is shown, the Commission or Administrative Law Judge may permit deviation from these rules insofar as compliance therewith may be found to be impossible or impracticable.

There is no evidence it was impracticable or impossible for the claimant to comply with these rules. How could it be impracticable or impossible to submit evidence which is in the possession of the claimant at the time of submission to the Commission?

The majority indicates Ark. Stat. Ann. § 81-1326 authorizes the Commission to reconsider or rehear this claim. The precise words of this section allow reconsideration of “any compensation order, award or decision”, and after such reconsideration, the Commission “may make an order or award terminating, continuing, decreasing, or increasing for the future the compensation previously awarded.” Nowhere in this enumeration is the Commission given the power to reconsider or review a denial of benefits. Statutes which enumerate or list powers are limited in interpretation to these precise functions. The precise designation of these powers creates a presumption the Legislature intended no other power or right to be included. Cook v. Ark-Mo Power Corp, 209 Ark. 750, 192 S.W. 2d 210 (1946). Furthermore, there is a basic difference in the thrust of this statute and that now being given by the majority. The reconsideration of awards for the purpose of either terminating, continuing, decreasing or increasing an order or award deals with claims which have been deemed compensable. This statute is designed to create some flexibility with regard to an injured worker’s changing physical status. This section empowers the Commission to reevaluate a claimant’s condition or progress. If his condition has deteriorated to the point he is permanently and totally disabled, the Commission by its own motion or on that of an interested party may reconsider the previous award and may increase the award. This statute was not designed, nor does it envision, a constant application for reconsideration by claimants who have been denied benefits. Litigation must terminate at some point.

I would deny a rehearing in this case. No new evidence is presented. This is not even a situation when due diligence could have produced the evidence. It was already in the possession of the claimant’s attorney. Therefore, I respectfully dissent.

      In support vof his motion, claimant submitted statements from Dr. William Y. W. Au, Professor of Medicine and Pharmacology, Chief Clinical Pharmacology Unit, University of Arkansas for Medical Sciences and VA Medical Center Complex; Dr. Thomas A. Bruce, Dean of the College of Medicine at the University of Arkansas Medical Sciences; and Dr. Dale Y. Peters, Specialist in Allergy and Environmental Diseases, of Dallas, Texas.
      Dr. Peters’ statement dated January 11, 1980, and filed with the Commission on January 29, 1980 states:
      “It is my view that Mr. Walker suffered over-exposure to insecticides which damaged his cellular blood cell system so that he now has multiple sensitivities to a variety of environmental factors including foods and environmental chemicals.”

      Ark. Stat. Ann. § 81-1326 (Repl. 1976) provides:
      “. • • [T]he Commission may at any time within six [6] months of termination of the compensation period fixed in the original compensation order or award, upon its own motion or upon the application of any party in interest, on the ground of a change in physical condition or upon proof of erroneous wage rate, review any compensation order, award or decision, and upon such review may make an order or award terminating, continuing, decreasing or increasing for the future the compensation previously awarded, . . . The Commission may at any time correct any clerical error in any compensation order or award.


author: George Howard, Jr., Judge. James H. Pilkinton, Judge,

text:
    Dorothy HAIR v. J. C. HAIR
    CA 80-247
    607 S.W. 2d 72
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980
    Rehearing denied December 3, 1980

      Howell & Price, P.A., for appellant.

      Macom, Morehead, Green & Henry, for appellee.
   George Howard, Jr., Judge.

On April 4, 1977, appellant and appellee, husband and wife, entered into a “Separation and Property Settlement Agreement” which provided in essence that:

1. Appellant should receive title to the home with was owned by the parties as an estate by the entirety, along with the furniture, fixtures, appliances, silverware, china and utensils.
2. Appellee should receive title to a 1976 Ford truck and a camper.
3. Appellee agreed to be responsible for the college education of Rhonda, the parties’ oldest daughter, age 18, and Denise, a daughter, age 15, provided they attended college within the State.
4. Appellee should maintain a joint bank account in order for appellant to maintain the current expenses; if, however, appellee should fail to deposit funds periodically in the joint account, appellee should pay appellant alimony at the rate of $500.00 per month.

While the introductory part of the agreement stated that matrimonial difficulties had arisen between the parties and as a consequence, “they are now living separate and apart from each other and intend to continue to live separate and apart for the rest of their natural lives”, the parties, at the time the agreement was executed, lived' under the same roof, but occupied different sleeping quarters; and even after the execution of the agreement, the parties continued to live under the same roof.

Appellee testified that after the agreement was executed, the parties’ relationship improved and that the parties indulged in sex at least once or twice a week from April 4, 1977, until November, 1977.

On June 6, 1979, appellant filed a complaint for an absolute divorce and sought enforcement of the property settlement agreement. Appellee counterclaimed for divorce and requested the court to set aside the property agreement and cancel a quitclaim deed that was executed simultaneously with the agreement conveying his interest in the home place to appellant. The grounds asserted for divorce by both parties were general indignities.

The trial court refused to grant a divorce to either party, set aside the property settlement agreement, cancelled the quitclaim deed and terminated the alimony payments to appellant.

For reversal, the appellant argues:

1. The trial court erred in denying appellant an absolute divorce.
2. The trial court did not have jurisdiction to set aside the property settlement agreements, nor authority to cancel the quitclaim deed.

The trial court, in denying an absolute divorce to either party, found that there was insufficient corroboration to establish general indignities asserted as a cause for divorce by the parties. Appellant called as her witnesses Mrs. Rosa Haller, mother of appellant, and Mrs. Lola Jacobs, a sister of the appellant, both of whom did not testify from what they had observed personally, while in the presence of the parties, but essentially from what they had been told by the appellant. Mrs. Jacobs testified that she never witnessed a family conversation between appellant and appellee; and that she seldom saw the parties socialize together in public; that when she visited in the home, on some occasions, it was apparent to her that the parties had had an argument, but the atmosphere was quiet and nobody was speaking to “anybody” and appellant appeared upset and her eyes appeared red.

Mrs. Haller testified that while she had practically daily contact with the parties, over the past five years, she could feel a “tenseness in the air”; that appellee would be sitting in the living room with a newspaper while appellant would be in the kitchen; that she never heard a normal conversation between the parties; and that she never witnessed a quarrel.

The appellee called as witness Donald K. Kaker and Mason Brown who testified essentially that when they visited in the home of the parties, they did not observe anything special or unusual; that the parties’ relationship appeared friendly.

Appellant testified that appellee had ignored her for five years, proceeding the filing of the action, and during this period, there was no sexual relationship; and that appellee was responsible for the breakdown in the parties’ sex life. On the other hand, appellee testified that appellant was responsible for the impasse that developed in the parties’ relationship; and that their sexual relations did not improve until appellant received the quitclaim deed to the home.

Under the circumstances just enumerated, we are unable to say that the holding of the trial court in denying a divorce to appellant is clearly against the preponderance of the evidence.

It is settled that in a contested divorce action, the testimony of a party to suit must be corroborated before a decree of divorce may be granted. Smith v. Smith, 245 Ark. 668, 433 S.W. 2d 835 (1968). The declared purpose of the rule requiring corroboration is to prevent the ascertainment of divorces through collusion. Where, however, it is clear that there is no collusion the corroboration may be comparatively slight. Anderson v. Anderson, 234 Ark. 379, 352 S.W. 2d 369 (1961). Here, the attempted corroboration falls far short of even meeting the standards of “slight corroboration.”

Moreover, lack of congeniality in a family relationship, without more, is insufficient to establish a cause for divorce on the grounds of indignities. The conduct complained of must show “settled hate and a manifestation of alienation and estrangement” and must have been conducted systematically and habitually over a period of time making one’s condition in life intolerable. Bell v. Bell, 105 Ark. 194, 150 S.W. 1031 (1912); Preas v. Preas, 188 Ark. 854, 67 S.W. 2d 1013 (1934).

The real problem that confronts the Court in this appeal relates to the authority of the trial court to set aside the property settlement agreement and cancel the quitclaim deed executed by appellee.

Appellant argues that the separation and property settlement agreement is a valid executed and independent property settlement, and, consequently, the trial court was without jurisdiction to set aside the agreement. Moreover, argues appellant, the quitclaim deed having been executed pursuant to the terms of the property agreement, the trial court exceeded bounds of its authority in cancelling the deed.

The thrust of appellant’s argument may be summarized: that before the property settlement agreement could be cancelled or set aside, it was imperative that the parties demonstrated an intent to abrogate the agreement; and that from this record there is no basis for finding an abrogation because the parties expressly agreed, in the property settlement agreement, that the agreement “shall survive any court decree” and shall be “forever binding”; and that the parties, to a degree, complied with the agreement which is clearly evidenced by the execution of the quitclaim deed by appellee and the maintenance of the joint bank account affording funds to appellant for the payment of living expenses; and the maintenance of the home for the parties’ minor child, Denise.

The trial court found that while the separation and property settlement agreement was valid at the time of the execution, the subsequent conduct of the parties — cohabitation from April 4, 1977, to November, 1977 — abrogated the agreement; and that the parties should be restored to their original positions.

It is well recognized that findings of fact of the trial judge will not be set aside by an appellate tribunal unless the findings are clearly against the preponderance of the evidence, giving due regard to the opportunity of the trial court to judge the credibility of-the witnesses. See: Rule 52, Rules of Civil Procedure.

We are persuaded that the issue here is controlled by the ruling in O’Quin v. O’Quin, 217 Ark. 321, 230 S.W. 2d 16 (1950), where the Arkansas Supreme Court dealt with a similar issue:

“. . . ‘Where the parties to a valid separation agreement afterward come together, and live together as husband and wife, where their conduct toward each other is such that no other reasonable conclusion can be indulged than that they had set aside or abrogated their agreement of separation, then such agreement should be held as annulled by the parties to it, and their marital rights determined accordingly.’ . . . [W]e think that the facts and circumstances of this case warranted the chancery court in finding that the marital relations between J. W. Sherman and his wife never ceased, and that there was a mutual forgiveness of the past misconduct on the part of each. . . .
“ ‘The preponderance of the evidence indicates that it was not only their intention to end the contract, in so far as it required them to live apart, but also to annul it as to the settlement of their property rights.

After carefully reviewing the record, we cannot say that the findings of the chancellor are clearly against the preponderance of the evidence. It is undisputed that after the separation and property settlement agreement was executed, not only did the parties continue living under the same roof, but indulged in sexual relations for at least twice weekly from April 4, 1977, to sometime in November, 1977. It is also clear that the quitclaim deed executed by the appellee was executed pursuant to the separation and property settlement agreement. We deem it sufficient to state, relative to the remaining points asserted for reversal, that we find no error and, consequently, the decision of the trial court in affirmed.

Affirmed.

Wright, C.J., and Hays and Pilkinton, JJ., concur in part, dissent in part.

James H. Pilkinton, Judge,

dissenting in part, concurring in part. As pointed out in the majority opinion, the real problem that confronts the court in this appeal concerns the authority of the trial court, under the facts of the case, to set aside the property settlement and cancel the quitclaim deed executed by the appellees. The trial court found that while the property settlement agreement was valid at the time it was made, the subsequent conduct of the parties — engaging in acts of sexual intercouse — was sufficient to abrogate the agreement; and justified the court in restoring the parties to their original positions. I consider this finding of the trial judge to be clearly against the preponderance of the evidence.

I do not believe that this case is controlled by the ruling in O’Quin v. O’Quin, 217 Ark. 321, 230 S.W. 2d 16 (1950), as the facts are entirely different. In O’Quin the court determined that there had never been a bona fide separation, and the parties were not actually separated within the meaning of the law when the settlement of their property rights was made. That is not the case here. In the litigation before us there was a real separation which occurred before the parties divided their property, and before the husband deeded his interest in the home to the wife. The conduct of the parties toward each other here was compatible with the separation agreement. They had agreed to separate, but to remain under the same roof and not seek a divorce until the youngest daughter graduated from high school. That is exactly what happened. Mrs. Hair did not file this suit until after the daughter had graduated. If O’Quin v. O’Quin does control, how can it be said on this record (as required by the ruling in O’Quin) that “no other reasonable conclusion can be indulged than they had set aside or abrogated their agreement of separation . . .”?

I can find no evidence in this record to show that the parties intended by their subsequent conduct to annul the property settlement, and I do not believe that the husband, under the facts of this case, was entitled to have the deed cancelled. While I agree that the court was correct in denying the divorce to either party for want of sufficient corroboration, I would reverse that part of the decree which set aside the property settlement and voided the deed. Even though the parties are not divorced, they are separated, and it is my view that the husband, under the circumstances shown by this record, is bound by the property settlement agreement and deed. In my opinion, the trial court’s finding with reference to the property settlement and deed is clearly against the preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure.

I am authorized to say that Wright, C.J., and Hays, J., join in this dissent.