author: Frank Holt, Justice.

text:
    Wynette Wiles v. Roy Wiles, Jr.
    5-4786
    437 S.W. 2d 792
    Opinion Delivered March 3, 1969

      Lohnes T. Tiner and Henry J. Swift for appellant.
    IF. B. Howard and Jack Segars for appellee.
   Frank Holt, Justice.

This is a divorce action. In her complaint, appellant seeks a divorce upon the grounds of indignities and asks that she be awarded all of her statutory rights, including her interest in the appellee’s property. The appellee’s answer is in the nature of a general denial, except for tlie marriage and separation. He avers that ho does not want a divorce and offers reconciliation.

The chancellor temporarily awarded the use of certain property' to the appellant and temporary alimony in the sum of $30 per week, together with costs and attorney’s fees. Upon trial the chancellor denied appellant a divorce and awarded her $200 per month separate maintenance.

About a month later both parties petitioned the court for modification of its decree. Appellee contended there that the court erred in awarding separate maintenance inasmuch as the court had refused appellant a divorce. In-response, appellant urged that the court had erred in denying her petition for divorce and, further, in not awarding to her the statutory property rights to which she was entitled, including alimony and attorney’s fees. After a hearing, the court modified its previous decree by dismissing the order requiring the appellee to pay $200 per mouth separate maintenance; denied an attorney’s fee, and found all issues of fact and law for the appellee. From that modified decree, this appeal follows.

For reversal appellant contends that the finding of the chancellor, in refusing to award her an absolute divorce together with her statutory rights, is against the preponderance of the evidence.

The parties were first married in July of 1966. Appellant secured a divorce, by agreement of the parties, on March 10, 1967. That night they discussed reconciliation and about a month later they remarried. About five months thereafter, the present separation occurred. Appellant testified that during this brief period of their remarriage appellee subjected her to extreme physical abuse on two occasions and constantly harassed and subjected her to such mental cruelty that her marital situation became so intolerable she could no longer live with him. According to her, he had an ungovernable temper and at times would call her vile names. • It appears that his conduct toward her vacillated somewhat, since she testified that he was generous with her and “he could be the sweetest, finest person that ever was one time and everything would be fine. .Then he could get mad at someone downtown and coiné in and take it out on me.” Appellant’s eighteen-year-old daughter by a former marriage corroborated her testimony about one instance of physical abuse and their arguments.

The appellee denied that he had physically abused the appellant on the two occasions about which she testified. He characterized these acts as merely being spankings which resulted from arguments that she provoked by her opprobrious language with reference to his daughter by a former marriage. According to him, the only other time he ever struck her with his hand was when she bit him. He admitted that when she used bad language about him or his family, it resulted in an exchange of uncomplimentary words. He testified that the basic cause of most of their problems during both brief marriages was her inability to manage and live within their finances and, further, that their quarreling was sporadic during their five-month reT marriage. Appellee expressed a desire to avoid a divorce in the hope of reconciliation and testified that he had made conciliatory efforts. Several witnesses testified on behalf of the appellee to the effect that publicly they appeared to be congenial.

Chancery cases are reviewed de novo on appeal and a chancellor’s decree will not be reversed on a question of disputed facts unless the finding is against the preponderance of the evidence. Greer v. Greer, 193 Ark. 301, 99 S.W. 2d 248 (1936). A compelling reason for this well settled rule is the fact that the chancellor is in a better position to evaluate the testimony of the witnesses since he hears them and observes their demeanor and interest in the case. Dennis v. Dennis, 239 Ark. 384, 389 S.W. 2d 631 (1965). In the case at bar, the evidence is in conflict that the alleged indignities were being continuously and persistently pursued with the purpose and effect of causing an enduring alieniation and estrangement which is a requisite in this type of action. Gibson v. Gibson, 234 Ark. 954, 356 S.W. 2d 728 (1962); Pryor v. Pryor, 151 Ark. 150, 235 S.W. 419 (1921). The absence of congeniality and consequent quarrels resulting therefrom are insufficient to constitute that cruelty or those indignities required by our statute to justify a divorce. Bell v. Bell, 105 Ark. 194, 150 S.W. 1031 (1912). In the case at bar, we are unable to say that the finding of the chancellor refusing appellant a divorce and her attendant statutory rights is against the preponderance of the evidence.

Appellant asserts the chancellor erred in denying her maintenance and support. Before appellant first married appellee, she was employed at $85 per week. At the time of rendition of the modified decree, she was employed and receiving as take-home pay $53 per week. She now lives with her mother and her thirteen-year-old daughter by her former marriage. She had been receiving $200 per month maintenance from her first husband for their two children, and now receives $100 per month for the younger child. It appears that the older daughter is now married.

Appellee placed the bulk of his property in trust before their remarriage. He said this was with her knowledge. According to appellant, the appellee now has approximately $500 per mouth personal income left after meeting his financial obligations, including $400 per month which he pays to a former wife and their two children as alimony and maintenance.

The chancellor has broad powers and wide discretion in fixing or refusing support payments and we do not disturb his action unless there is an abuse of discretion. Carty v. Carty, 222 Ark. 183, 258 S.W. 2d 43 (1953). In each case, proper consideration must be given to the respective financial conditions of the parties and many other circumstances, including their mutual conduct. Upchurch v. Upchurch, 196 Ark. 324, 117 S.W. 2d 339 (1938); Lewis v. Lewis, 202 Ark. 740, 151 S.W. 2d 998 (1941). In the case at bar, we are unable to say that the chancellor abused his broad discretionary powers in refusing to continue an award of maintenance and support which appellant had received for approximately six months. Further, we find no abuse of discretion in disallowing additional attorney’s fees.

The decree is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    State of Arkansas v. Jim Bruton State of Arkansas v. Jim Bruton, E. L. Fletcher and Jess Wilson
    5-5372 and 5-5373
    437 S.W. 2d 795
    Opinion Delivered March 3, 1969

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellant.

      Reinberger, Eilbott, Smith & Staten for appellees (Bruton & Wilson); Douglas Bradley & Hartman Hats for appellee (Fletcher). .
   . John C. Deacon, Special Chief Justice.

Appellees, employees of the Arkansas penitentiary, were charged by information in two cases with administering excessive punishment to prisoners in October 1964 and January 1965 in violation of Arkansas Statutes 46-158. The. appellees filed a demurrer and motion to dismiss, alleging that the statute was void because of an unconstitutional delegation of legislative power. The trial court agreed and dismissed the cases and- the state brings these appeals.

The issue in these cases is simply whether appellees were charged with a crime under a valid Arkansas penal statute. We are not asked to consider whether the use of the strap in the penitentiaries of Arkansas is cruel or unusual punishment prohibited by Article 2, Section 9 of the Arkansas Constitution. This point was recently before the Eighth Circuit in Jackson v. Bishop, 404 F. 2d 571 (1968), which held use of the strap to be in violation of the Eighth Amendment to the Constitution of the United States. Neither do we consider here whether appellees might have been charged with a crime under some penal statute other than Section 46-158.

This law was enacted U 1893 as Section 62 of Act 76, which was a comprehensive measure providing for the management of the penitentiary. The constitutionality of this section has not been previously tested. It provides as follows:

“The board [State Penitentiary Board] shall prescribe- the mode- and extent of punishments to be inflicted on convicts for the violation of the prison rules; and any superintendent, subordinate officer or guard having in his charge any convicts who shall himself, or who shall cause any other person to inflict on any convict any greater or more severe punishment than is prescribed by said board, said superintendent, subordinate officer or guard shall be deemed guilty of a felony, and on conviction thereof shall be confined in the penitentiary for not less than one (1) nor more than five (5) years; and if death ensues from said punishment, he and his aiders and abettors shall be guilty of murder or manslaughter as the case may be.”

This statute has no guidelines. It permits the State Penitentiary Board in its sole discretion to prescribe for its employees the limits of conduct which would constitute a felony. In the absence of an adequate yardstick for the guidance of the board, it could set mínimums or extremes of punishment without restraint. The effect of this is to authorize an administrative body to impose criminal liability upon penitentiary employees based upon rules fixed by it. Enactment of penal statutes, always strictly construed, is a function of the legislative branch of our state government.

We hold that Arkansas Statute 46-158 is an unconstitutional delegation of legislative power. Walden v. Hart, 243 Ark. 650, 420 S.W. 2d 868 (1967).

Affirmed.

Harris, O.J., disqualified.

Holt, J., not participating.


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

text:
    Chicago, Rock Island & Pacific Railway Company v. Barbara Gipson
    5-4797
    439 S.W. 2d 931
    Opinion Delivered March 10, 1969
    [Supplemental Opinion on denial of Rehearing delivered May 12, 1969, p. 967.]

      Wright, Lindsey & Jennings by William B. Overton for appellant.

      Howell, Price & Worsham for appellee.
   Carleton Harris, Chief Justice.

This is a railroad crossing accident case. Mrs. Barbara Gipson, a 24-year-old housewife, 'was driving her husband’s 1953 Studebaker pickup truck with her two daughters, ages 3 and 2, as passengers, on May 26, 1965, about 9:30 a.m. Mrs. Gipson stopped the truck at a railroad crossing in the town of Bigelow, Arkansas. She then attempted to start the truck, but it would not start; however, as she was trying to start it, the truck rolled onto the tracks. She again attempted to start it, but the starter just “grinded,” and about the same time she heard an approaching train. Mrs. Gipson tried once more to start the truck, concluded that it was not going to start, and got out. She threw both little girls from the vehicle, and all reached a position of safety, but one of the children attempted to run back to the truck as the train neared the crossing. Mrs. Gipson ran after [he child, and the train struck the front part of the truck and knocked it against appellee, who sustained injuries. Suit was instituted against the railroad, and on trial, the jury found Mrs. Gipson 20% negligent, the railway company 80% negligent, the engineer guilty of no negligence, and Mrs. Gipson’s damages were assessed at $50,000.00, the amount sought in the complaint. From a judgment entered in the amount of $40,000.00, appellant brings this appeal. Five different contentions are urged for reversal. Since we are of the opinion that the court erred in refusing to direct a verdict for appellant, there is no need to discuss the other alleged errors.

Appellee’s case is founded upon contentions that the train crew did not keep a proper lookout; that the employees of the company negligently failed to sound the whistle or ring the bell to warn of the train’s approach ; that high weeds and grass were permitted to grow along the right-of-way to such a height as to prevent appellee from seeing the train; and that the crossing was abnormally dangerous.

There is testimony that the train crew failed to sound a whistle or bell, and also testimony that these warnings were given; and there is testimony pro and con relative to the other contentions. However, it is not really pertinent to a determination of this lawsuit whether the whistle and bell were sounded in time to giv.e warning; whether a proper lookout was maintained l>3r the railroad employees; or whether there is evidentiary support ior the other allegations of negligence, for it is uncontradicted that Mrs. Gipson knew the train was coming while she was still sitting in the truck on the track. Her knowledge that the train was approaching is the controlling and determinative fact in this litigation, for any failure on the part of appellant to property warn could not have been the proximate cause of the injuries complained of. In Missouri Pacific Railroad Company, Thompson, Trustee v. Doyle, 203 Ark. 1111, 160 S.W. 2d 856 (1942), we said:

“In the instant case, even though the statutory signals were not given, this was not the proximate case of the injuries complained of, for the reason that Mrs. Doyle admitted that she saw the headlight from the train and it was moving as it approached the crossing. Under these circumstances it was her duty, in the exercise of ordinary care for her own safety, to stop her car, and this she admits she failed to do.”

In Missouri Pacific Railroad Company, Thompson, Trustee v. Carruthers, Adeno, 204 Ark. 419, 162 S.W. 2d 912 (1942), the court said:

“* * * The statute, § 11135 of Pope’s Digest requires railroad companies to ring the bell or blow the whistle at crossings, that is, to do one or the other, beginning 80 rods away, and to continue until the crossing is passed. We have held in many cases that these statutory signals cease to be factors and that no recovery can be had for failure to give them when the presence of the train is plainly discoverable by other means, the latest being the Howard case.”

In Missouri Pacific Railroad Company, Thompson, Trustee v. Dennis, Admr., 205 Ark. 28, 166 S.W. 2d 886, it was stated:

“In the instant ease, even though the statutory signals were not given, this was not the proximate cause of the collision and consequent damages. As we have indicated, it was Isaac Dennis’ negligence in failing to look that caused his death. In the recent case of Mo. Pacific Ry. Co. v. Doyle, 203 Ark. 1111, 160 S.W. 2d 856, we said: ‘We have many times held that the purpose of giving signals is to warn the traveler of the approach of a train, but when the traveler has this knowledge otherwise warning signals cease to be factors. In Chicago, R. I. & Pac. Ry. Co. v. Sullivan, 193 Ark. 491, 101 S.W. 2d 175, this court said: “The object of signals is to notify people of the coming of a train. Where they have that knowledge otherwise, signals cease to be factors.” ’ ”

In Kansas City Southern Railway Company v. Baker, 233 Ark. 610, 346 S.W. 2d 215, it was contended by appellee that there was sufficient testimony to sustain a finding that the statutory signals, required of the train crew, were not sounded. Two persons testified that, though they were in a position to have heard the signals had they been sounded, they heard none. In reversing a judgment for appellee, we again said:

“But it is not necessary to decide this point at this time because in the case at bar Mrs. Baker cannot. recover, even though no signals were given, because if she saw the train approaching and walked in front of it, there can be no recovery regardless of whether the statutory signals were sounded. There is direct and circumstantial evidence' that Mrs. Baker did see the train and tried to cross in front of it. There is no substantial evidence to the contrary. In the case of Missouri Pacific B.R. v. Doyle, 203 Ark. 1111, 160 S.W. 2d 856, this Court said: ‘We have many times held that the purpose of giving signals is to warn the traveler of the approach of a train, but when the traveler has this knowledge otherwise, warning signals cease to be factors.’ ”

The testimony of appellee herself establishes that she was well aware of the approach of the train before tlie accident occurred, and, in fact, had reached a place of safety, together with the children, until one child started back to the truck. After testifying that she tried to start the vehicle once after hearing the train, she said she got out of the truck onto the ground; then “I got Suzanne and threw her and I got Pamela and threw her.” She stated that the children had reached a safe place, and she had reached a safe place, and all three would have been out of the way if one of the children had not started back toward the truck. When this happened, Mrs. Gipson ran to pull the child back, and she was thus in a position of danger when the train reached the crossing.

Of course, the mother, in going back for the child, did what any parent would do, for a normal parent would, without hesitation, risk, injury if it appeared that one of the children was in danger. Though that be true — the railroad company cannot be held responsible because a person chooses to place himself in a position of peril. Appellee argues in her brief:

‘‘The jury might well have concluded that had the railroad kept a proper lookout, applying the brakes sooner and before impact so as to slow down the advance of the train, or had the railroad given the inquired warning by sounding the whistle continously for a quarter of a mile prior to reaching the crossing', the appellee would have had sufficient time to have fled to safety, or that impact would not have been as violent so as to spin the truck around and knock it into her.”

This, of course, is pure speculation — -but we do know, from the mouth of appellee, that she had earlier reached a place of safety, and was only injured because she voluntarily returned toward the tracks.

Reversed and dismissed.

Byrd, J., concurs.

Conley Byrd, Justice.

I do not agree with the majority that Mrs. Gipson had reached a place of safety. I do think there was error in the giving of the instructions on lookout and abnormally dangerous crossing. The only evidence on lookout is that the train crew saw the vehicle just as soon as it could possibly be seen after the train rounded the blind curve. With respect to the abnormally dangerous crossing, it is difficult to understand how it should be applied to a stalled vehicle.

However on the matter of the sounding of the whistle and bell, there was evidence from which the jury could liave found that they were not sounded in time to give a warning to Mrs. Gipson since her view of the train was obstructed by a blind curve. For this reason I would remand for a new trial rather than a dismissal.

      “‘Well, I pulled up to the track and I stopped and the truck died and I tried to start it and the starter was under the clutch and when I tried to start it it rolled forward and I heard the train then...” The front end of the truck protruded out upon the track.

      One person testified to the same, thing in this case, while two residents of Bigelow and the train crew testified that the whistle was blown in plenty of time. Mrs. Zelma Wilson testified that the train “started whistling before it passed our house, and we got alarmed when it kept whistling before it hit the truck.” She lived in Fouche, a mile from Bigelow.


author: Carleton Harris, Chief Justice.

text:
    Simmons First National Bank, Administrator v. Dewey Luzader, et al
    5-4809
    438 S.W. 2d 25
    Opinion Delivered March 10, 1969

      Wright, Linclsey & Jennings for appellant.

      Fenton Stanley for appellees.
   Carleton Harris, Chief Justice.

This appeal involves the validity of a written contract entered into by N. F. Yarbrough and his nephew and his wife, Dewey Luzader and Anna Pearl Luzader, appellees herein. The instrument provided that the Luzaders should have $12,000.00, which was on deposit with the Southern Federal Savings and Loan Association in Pine Bluff, if appellees gave him a home until his death. A factual background is as follows:

Yarbrough’s wife died on September 19, 1966, Mr. Yarbrough being 84 years of age at that time. On the day following Mrs. Yarbrough’s death, and also a few days later, Yarbrough, together with his brother, Claude, went to the Southern Federal office for the purpose of transferring savings accounts. Yarbrough held four or more such accounts, which totaled more than $49,-000.00. One account, in the amount of $7,000.00, was placed entirely in the brother’s name. Remaining accounts were changed to require the signatures of both brothers in order to make withdrawals. Subsequently, Frank (N. F.) Yarbrough returned to the Southern Federal office on one other occasion to discuss the accounts with tiie company secretary.

Yarbrough had long expressed the desire to live with the Luzaders in the event of the death of his wife, and he went to the Luzader home at Leola, Grant County, Arkansas, three days after the funeral of Mrs. Yarbrough. On October 25, Mr. Yarbrough, accompanied by Anna Pearl, went to the office of Pierce A. Reeder, postmaster at Leola, and a contract was handed to Reed-er, Mrs. Luzader requesting the postmaster to “notarize” it. Reeder testified that he read it, and concluded that it should be drawn up in a form where it could be witnessed by two other people. When Mrs. Luzader left to find two persons, Reeder typed up the agreement, and made it ready for signatures. The postmaster testified that lie copied the paper handed him, and added the part about the presence of witnesses. Mr. Yarbrough then executed the typed contract, and the two witnesses signed their names.

On December 5, 1966, Mr. Luzader petitioned the Probate Court for the appointment of a guardian for Yarbrough, the allegations being that the latter was incompetent, because of senility and old age. On December 9, the court held Yarbrough incompetent, and appointed Simmons First National Bank of Pine Bluff as guardian. At this hearing, Claude Yarbrough relinquished the interest in his brother’s savings accounts, and the court awarded appellees the sum of $150.00 per month for keeping the old man. Yarbrough died on August 21, 1967, and appellant bank was named administrator of the estate. The Luzaders filed a claim for $12,000.00 based on the written contract heretofore mentioned. The bank refused to allow this claim, but on hearing, same was allowed by the Probate Court. From the judgment allowing the claim in the amount of $12,-000.00, the bank brings this appeal. For reversal, it is asserted that the court erred in holding that the administrator had failed to overcome the presumption of Yarbrough’s competency, and it is also alleged that the contract was unenforceable for failure of consideration.

All parties agree that the document in question was not a conveyance, or will, but was a contract. The court, in its written opinion at the conclusion of the case, held that the bank had ‘ ‘ failed to overcome the presumption of competency that follows the execution of a written instrument.” Appellant disputes that there is such a presumption, and points out that the Chancellor cited no case in support thereof. We disagree with this argument. In Dalton v. Polster, 200 Ark. 168, 138 S.W. 2d 64, this court said:

“Having pleaded her incompetency, the burden was on appellants to show it. Incompetency is never presumed, but the contrary is.”

In Harris v. Harris, 236 Ark. 676, 370 S.W. 2d 121, we commented:

‘‘ There is a presumption of law that every man is sane, fully competent and capable of understanding the nature and effect of Ms contracts.”

Harris v. Harris is also quoted with approval in Union National Bank of Little Rock, Trustee v. Smith, 240 Ark. 354, 400 S.W. 2d 652. Of course, in addition, the execution of the contract having been shown, the burden of proving incompetency rested with the bank, since it sought to invalidate the instrument. The cited cases are likewise authority for this last.

As a matter of proving the mental incompetency of Yarbrough, appellant relies upon the testimony of Claude Yarbrough, the brother of the deceased, Connie Haner, a niece of N. F. Yarbrough, and Hattie Bea Blaser, Secretary of the Southern Federal Savings and Loan Association of Pine Bluff. Mrs. Haner testified that she probably saw Yarbrough twice between the time of his wife’s death and the execution of the contract -with the Luzader’s. When interrogated as to her uncle’s mental condition at the time of his wife’s death, she replied:

“Just like he always was the last few years. Just a little, well, you’d have to know Uncle Frank to know him. He was just sort of here and there.”

Mrs. Haner said that he could remember some things pretty well, but could not remember others; that lie had “been like that for years.” When asked if he had an understanding of the nature and extent of Ms property, the witness said:

‘ ‘ Well, he knew he had his money and we talked about it and different things like that. He liked to talk about Ms money to me. * * * He didn’t know how much he had, really. He didn’t know that, no.”

She said that in April, 1967, a relative had died, and she talked to her uncle in Grurdon; that he told her at that time that he wanted to go to Pine Bluff, and get his money out of the bank, because Anna Pearl had written a paper that would give her $12,000.00, and he didn’t want her to have it. She also said that he desired to move back to Pine Bluff. The witness made clear that she was not saying that her uncle had been compelled to sign the paper. “He said that she wrote out a paper and I signed it that I would give her this money.” Mrs. Haner did agree that Yarbrough had been anxious to live with his nephew and wife at the time of the death of his wife.

Claude C. Yarbrough lives in Little Rock. He testified that he went to the N. F. Yarbrough home in Pine Bluff the morning after Mrs. Yarbrough’s death, and “he [N. F. Yarbrough] told me, as he had previously, that he wanted to sign over all of his savings in my name.” They went to the Southern Federal Savings and Loan Association, and $7,000.00 was transferred to the witness; the balance was not transferred, because he did not have the “deposit slips.” N. F. Yarbrough did not know where these -were located, but a stepdaughter, who arrived the next day from Illinois, produced them, the balance amounting to about $42,000.00. The Yarbroughs returned to the savings and loan office, and these amounts were placed in joint accounts for the two brothers, with right of survivorship; during their lifetime, the money could not be drawn out without both signatures. Claude testified that his brother did not know how much money he had with the savings and loan, and he said that N. F. argued with the secretary of the association that he only had $21,000.00. The witness stated that N. F.’s mind was “bad then,” and it kept deteriorating until he was completely blank the last month or two of his life. While Claude testified that, at the probate hearing, he agreed to turn over all of these accounts to the guardian, it appeared on cross-examination that he might have been a little reluctant to do so.

Tlie strongest evidence offered by appellant was that of Hattie Bea Blaser, the secretary for the savings and loan association. Sbe said that N. F. Yarbrough, accompanied by Claude, came to the office on September 20, and informed her that his wife had passed away the night before, and he would like to transfer his money to his brother’s name. She told him that he wonld need his pass book and certificates of deposit, and he then asked how much money he had. After checking the accounts, Mrs. Blaser advised that there was $42,000.00 in four different accounts. Referring to the deceased, the witness stated:

® * I’ve known him for several years. He was a peculiar person in a certain sense. One account he would carry in a different name. One would be Newton F. and one would be in N. Frank Yarbrough or N. F. Yarbrough. He always, you know, in opening a new account, would use his name in a different manner.”

Mrs. Blaser said that he didn’t seem to have any idea of how much he had on deposit, and that it was her personal opinion that he didn’t understand the effect of transferring the accounts. She added that, for the last three or four years, N. F. Yarbrough had not been as alert as she had known him to be in years past; that for the last two years, there never was a time when he knew what he was doing. She later modified this statement, saving' that, during that period, she did not believe him able to take care of a business matter.

Mrs. Luzader testified 1 that Yarbrough came to Leola to live with the Luzader family three days after his wife’s death; that he died on August 21, 1967, in a hospital, after suffering a stroke on July 7. She detailed the necessary duties in taking care of Mr. Yarbrough, who, after a few months, lost control over his bodily functions. Appellee said that sometimes the bathroom would have to be cleaned two or three times a morning, and that this lack of control was evidenced in the family automobile; that it was difficult to get Yarbrough to a barber and back home without changing his clothes; that her 16-year-old son would bathe him, and they would dress him. She said that Yarbrough was happy in the home, but embarrassed.

Mrs. Luzader testified that she received the $150.00 per month allowed by the probate court for Mr. Yarbrough’s maintenance, and that Yarbrough paid her an additional $150.00 per month from his railroad retirement check after the first of the year, 1967.

Glenn Paul Luzader, the son, testified that on one occasion, when they were sitting in the den, he heard his Uncle Frank tell his mother that Yarbrough wanted her to have the $12,000.00 after he passed away.

Iona Jones, daughter of the Luzaders, testified that she had many times, as a child, heard her uncle express the desire to live with her parents if he out-lived his wife; he did not want to go to a home for old folks. She said that she would visit on weekends following his move to Leola, and that he had told her that he was very thankful that he didn’t have to go to a rest home, but could spend the rest of his life with her folks.

Evelyn Smith, the housekeeper, had been going to the Luzader home one day per week for years, but after Yarbrough moved in, Mrs. Smith worked two days per week. She said that she helped Mrs. Luzader rearrange the furniture, giving Mr. Yarbrough the bedroom closest to the bathroom, and that she had many conversations with him while she was ironing. Mrs. Smith stated that he would mention that he did not want to go to a rest home, and that he wanted Mrs. Luzader to have a part of his savings.

We agree with the Chancellor that the evidence was insufficient to establish the incompetency of Mr. Yarbrough. It is noticeable that no medical evidence vías introduced that Yarbrough was incompetent, though, according to Mrs. Blaser, he appeared, in her opinion, to have been unable to attend to business matters for the last two years before his death. Medical testimony of incompetency, though certainly not essential, is important and potent evidence in this type of case, and, in Harwell v. Garrett, 239 Ark. 551, 393 S.W. 2d 256, we emphasized that not a single medical witness testified that Frank Garrett was incompetent.

The fact that Yarbrough did not seem to understand the result of a joint account, or did not know just how much money he had, is, in our view, of no great significance under the circumstances of this case. We daresay there are many people in their 80’s, who have but lit ¡le knowledge of business affairs, and who have difficulty in remembering details. Certainly, Claude Yarbrough must have considered that his brother was competent to make the changes in the accounts, or he would not have permitted this to be done. It would appear, according to the testimony of Mrs. Blaser, that N. F. Yarbrough had acted peculiarly for a number of years. She mentioned that each time he opened an account, he would use a different version of his own name, but peculiarities do not establish one’s mental incompetence. In Harwell v. Garrett, supra, in quoting from Volume I, Page on Wills, § 12.37, we said:

“The fact that the testator was filthy, forgetful and eccentric, or that he was miserly and filthy, or that he was blasphemous, filthy, believed in witchcraft, and had dogs eat at the same table with him or that he was filthy, frequently refused to eat, and would lie in bed with his clothes on for two weeks at a time, or that he would leave his home only at night, and would count or recount his money, or that he was high tempered and violent, or was irritable and profane, or that testator thought that others were plotting against him and was afraid to go out in the dark, or that he was inattentive when spoken to and mumbled when trying to talk, does not establish lack of capacity.”

It is readily apparent that Mr. Yarbrough’s acts in no wise compared with the language just quoted, and we have many times said that being forgetful and eccentric does not establish lack of mental capacity.

Of course, it is necessary that appellant show the lack of Yarbrough’s mental capacity to enter into the contract at the time this instrument was executed. Here, there is not one line of evidence relative to that point offered by the appellant; in fact, the only effort was an attempt to show that Yarbrough was mentally deficient thirty-eight days before he signed the agreement. In Petree v. Petree, 211 Ark. 654, 201 S.W. 2d 1009, Mrs. Anna Petree executed a contract on June 22, 1942. Lay evidence was offered that she was not able to transact business in June, 1942, and medical evidence was offered to the same effect, although the doctor so testifying did not examine Mrs. Petree thoroughly until September or October of that year. The physician stated that her condition had not come on suddenly; however, he was unwilling to testify that she was incompetent in June. We held Mrs. Petree competent. In the instant litigation, we reiterate that there is not one iota of evidence to the effect that Mr. Yarbrough was mentally incompetent in October, 1966.

This court has said that mental weakness, though not to the extent of making one incapable of executing a deed, may cause a person to be more susceptible to fraud, duress, or undue influence, and that when that mental incapacity is coupled with any of those conditions, a contract may be voidable. Cain v. Mitchell, 179 Ark. 556, 17 S.W. 2d 282. Here again, there is no proof of fraud, duress or undue influence. One paragraph in appellant’s brief is devoted to the argument of undue influence, and this is based upon a comment by Mrs. Blaser that it was her personal feeling that Yarbrough ■was easily influenced by anyone close to him. It hardly seems necessary to state that that testimony comes nowhere near establishing that Mrs. Luzader exercised undue influence upon the uncle.

It is argued that appellees were well paid for their service's in taking care of Mr. Yarbrough by virtue of the fact that they received $300.00 per month. One hundred and fifty dollars ($150.00) of this was allowed by the Probate Court, and the other $150.00 was paid to Mrs. Luzader by Yarbrough from his retirement cheek. Appellant says that certainly Mr. Yarbrough did not contemplate, in agreeing that they should receive $12,000.00, that appellees would also receive $300.00 each month; that accordingly, the consideration for the agreement fails. We do not know what Mr. Yarbrough contemplated, but the evidence certainly indicates that he was quite devoted to the Luzaders.

It is established by the evidence, in fact, undisputed, that Mr. Yarbrough had a strong aversion to being placed in a nursing, or old folks, home; he expressed the desire many times to live with his nephew and wife. It is likewise established that the Luzaders took care of Mr. Yarbrough, as they agreed to do; in other words, they carried out their part of the agreement.

Let it be remembered that this is not a case where a man is depriving his wife or children of needed monies — this is not a case where loved ones are cast aside for strangers. To the contrary, all heirs are collateral heirs, none of whom, from the record, had anything to do with helping Yarbrough accumulate his savings. Nor does it appear that the other relatives were anxious to take care of this aged man. Also, the Luzaders are not receiving all of his money; in fact, including the amount allowed by the Probate Court, they will be receiving but little more than one-fourth of the estate.

We find no reversible error.

Affirmed.

Brown, J., not participating.

      Reeder was under the impression that the instrument was a will.

      “When and if Dewey Luzader and his wife, Anna Pearl Luzader gives me a home until my death, it is understood that they shall have the sum of Twelve Thousand Dollars ($12,000.00) of my money on account in the Southern Federal Loan and Savings at Pine Bluff, Arkansas or wherever it may be at the time of my death. Signed this 25th day of October 1966. Signed /s/ N. F. Yarbrough. In the presence of the following witnesses and in the presence of each other on this 25th day of October, 1966.
      /s/ Olen Biggs, Leola
      /s/ Austin Lamb, Leola.”

      Our emphasis.

      H. B. Atwood, trust officer for Simmons First National Bank, produced a letter which he had received from Mrs. Martha Frances Grothe Lyche, a stepdaughter of N. F. Yarbrough, in which she said that her mother and stepfather did not want to be placed in a nursing home; that Mr. Yarbrough had always desired to live with the Luzaders, and that the Luzaders were giving him a good home. The introduction of the letter was objected to as hearsay, and the Chancellor reserved his ruling. He never did pass upon the admissibility of the evidence, but apparently did not consider it, since it is not mentioned in a rather lengthy opinion rendered by the trial court.

      Mrs. Connie Haner testified emphatically that Yarbrough wanted to go to the home of the Luzaders in September, 1966, twice stating, “Oh, yes. He wanted to go there.” However, this testimony was a contradiction of earlier evidence given by this witness on direct examination. From the record:
      “Q. Has he told others of the family, other members of the family, that he was willing or that he wanted to go live with them?
      A. Yes. He had told different ones from time to time that he would like to live with them. He never did tell me. I was a widow or I guess I might have wound up with him.”


author: George Rose Smith, Justice.

text:
    John A. Dodds v. James E. Dodds, et al
    5-4828
    438 S.W. 2d 54
    Opinion Delivered March 10, 1969

      Charles E. Tingling, Jr. & Comer Boyett, Jr. for appellant.

      Martin, Dodds, Kidd, Hendricks & Ryan for appellees.
   George Rose Smith, Justice.

This is a partition suit filed by the appellant, John A. Dodds, as one of four tenants in common. After an extended hearing the chancellor entered a decree which first adjusted the accounts among the four owners and then ordered a sale of the property, with the proceeds to he divided equally after the various debits and credits had first been taken care of. The appellant does not question the order of sale, hut he does insist that the court should have allowed him more money than it did for his improvements and maintenance expenses.

The principal tract, a 143-acre farm in White county, was formerly the homestead of J. B. Dodds, Sr., and Ms wife, Mattie Dodds. At Mr. Dodds’ death in 1939 title passed to his widow as the surviving tenant by the entirety. Mrs. Dodds occupied the land with her son, John, the plaintiff, until her death in 1962. The property was then inherited by her four sons, John, James, W. P., and J. B., Jr. In 1964 J. B. Dodds, Jr., died testate, leaving all his property to his widow, the appellee Loukate Dodds, who is now the fourth tenant in common. A second tract of 105.96 acres was purchased in 1943 and is also owned by the three surviving Dodds brothers and their sister-in-law.

At the outset the appellees insist that the decree should be affirmed for the reason that the appellant has accepted certain benefits under it and is therefore not in a position to question it. The motion appears to be well founded, but the decree may also be affirmed on the merits. We prefer the latter course.

Upon the issues still in dispute the testimony at the trial was in such conflict that the predominant question was that of credibility. Many of the contradictions were between W. P. Dodds on the one hand and either John or James on the other. Where the sole issue is that of credibility as between interested parties, our practice is to abide by the chancellor’s judgment in the matter. Souter v. Witt, 87 Ark. 593, 113 S.W. 800, 128 A.S.R. 40 (1908).

Moreover, the appellant, as the plaintiff in the trial court, had the burden of proof. In some respects his testimony is inherently lacking in persuasiveness' He described expenditures that were made within three or four years before the trial and that involved thousands and thousands of dollars. Tet, even with respect to such recent outlays of substantial sums he was unable in most instances to produce supporting proof, either in the form of corroborating testimony or in the form of checks, receipts, or other documentary evidence. Nor ■did he satisfactorily explain the source of the funds that he claimed to have spent, other than saying that he had been “gypsy trading,” which he described as the buying of farm equipment in Arkansas for the purpose of selling it in other states. Again, no records were submitted to substantiate his testimony.

In the light of what we have just said we do not find it necessary to discuss the appellant’s specific claims in great detail. Four of the items are asserted capital expenditures. John asked to be awarded $10,000 for having built an annex to the house on the main farm. The chancellor disallowed this claim but permitted John to remove the annex. Instead, John sold the annex to the purchaser at the partition sale. He is not in a position to ask to be reimbursed a second time for the annex.

Upon John’s claim for $8,000 for having had ditches dug on the place the chancellor allowed only $3,000. The testimony was in sharp conflict, with W. P. Dodds stating that the county dug the ditches without charge. The chancellor’s conclusion was in the nature of a compromise, which we do not consider to be against the weight of the evidence.

A third claim was for the construction of a $5,000 barn, but according to W. P. that building was erected with the proceeds of a fire insurance policy upon another structure that had burned down. The fourth capital claim, that of $1,200 for repairs upon a tenant house, was reduced by the chancellor to $500 in harmony with TY P.’s testimony that the house was not worth even that much. The test is the enhancement in value to the land, not the amount of the outlay. McDonald v. Rankin, 92 Ark. 173, 122 S.W. 88 (1909).

In addition to his capital claims the appellant seeks to recover certain maintenance expenses. The largest is a demand for $3,600 as compensation for having managed the farm property for the three years immediately preceding- the filing of the suit. John testified that after the death of Dodds, Sr., in 1939 it was agreed that John would receive $100 a month for managing the property. There is, however, no proof that John ever actually received any such payments at all during the period in excess of 25 years that intervened between the asserted agreement and the institution of the suit. Even if such an agreement was made it was quite evidently abandoned long ago. There is also a small claim for repayment of fire insurance premiums, but the proof shows that part of the coverage was upon the annex which was awarded to John himself and that the policies were payable only to John and James, who pretty well made common cause against their co-tenants at the trial. We cannot say that the chancellor’s allowance of $370 was an inadequate reimbursement for the premiums.

On the record as a whole we are not convinced that the chancellor’s total allowances of $6,336 to John Dodds are so clearly against the preponderance of the proof as to call for revision in this court. To the contrary, we are persuaded that substantial justice was accomplished by the decree.

Affirmed.


author: Lyle Brown, Justice.

text:
    J. Cecil Tate et ux v. City of Malvern
    5-4762
    438 S.W. 2d 52
    Opinion Delivered March 10, 1969

      Fenton Stanley and Dorsey D. Glover for appellants.

      William G. Gilliam and Wiley Smith for appellee.
   Lyle Brown, Justice.

This is a zoning case. The appellants are J. Cecil Tate and wife and appellee is the City of Malvern. Appellants were unsuccessful in .having the subject property rezoned from residential to business classification. The chancery court held that the planning commission’s refusal to reclassify the property was not unreasonable, capricious, or arbitrary. The landowners here contend that the trial court’s ruling was against the preponderance of the evidence.

Cecil" Tate has for a number of years held the Ford franchise for Malvern. It is his desire to move from the congested area of the business district and construct a modern retail outlet on the outskirts of the city. For that purpose he purchased an eight-acre tract on U. S. Highway 270 between Malvern and Interstate 30. The Tate acreage is surrounded by, and included in, a substantial tract of land which was zoned in 1960 as residential. In 1958 Malvern obtained the services of the city planning division of the University of Arkansas and after a two-year study a zoning plan for the entire city was adopted. A few years later the then owner of the eight acres sought unsuccessfully to have it reclassified commercial. Mr. Tate thereafter, in 1964, bought the property.

Appellants presented a very persuasive cas.e for reclassification. It was shown that the votes by the planning commission and the city council, whereby rezoning was denied, were close. There are three water mains crossing the eight acres at the back and those easements would there constitute a problem in the construction of homes. A qualified real estate broker and appraiser testified that the highway frontage was most desirable for commercial use and that the rear of the Tate property was low. It was shown that a bowling alley and a dairy bar are located within the residential zoning, they having been constructed prior to the classification. They are permitted to operate as nonconforming uses. A former owner of the Tate tract was of the opinion that the back part was too low to be sewered. Highway 270 will be a major entrance to Malvern off of Interstate 30. Mr. Tate produced a very attractive plan for his proposed construction. Those plans, involving an expenditure of over $125,000, have been approved by Ford Motor Company.

Looking at the other side of the coin, we find considerable evidence favoring the action of the city in denying rezoning'. We think the most significant feature in that respect is the physical development of properties adjacent to the Tate tract. It is bordered on the north by the city park and a reservoir into which water is pumped from the Ouachita Biver. On the south side there are two residential subdivisions. Brownwood Subdivision contains thirty-three residential lots and at the time of trial contained twenty-nine residences. Immediately south of Brownwood is Biver Heights Subdivision, containing twenty lots, most all of which have been developed. On the west across Highway 270 and in front of the Tate tract is Edgewoocl Subdivision. It contains some forty-seven lots which are substantially developed. Finally, on the east side the Tate tract is bordered by a street, a railroad, and three residences. Some fourteen pictures of homes were introduced. They are modern, built mainly of brick, and several have double carports. The shrubs and lawns reflect pride of ownership. A plat of all the described lots in the area bordering the subject property reveals eighty-one separate owners. The few lots still available in Edge-wood are described by a real estate agent as being priced at $3500.

Among the eight witnesses who testified in opposition to rezoning were four men who served on the planning commission. Three of them are homeowners in the area in question. Two witnesses were city councilmen and another was mayor at the time the Tate petition was denied. The mayor also resides in the affected area. The points sought to be established by the different witnesses may be summarized as follows: The zoning plan was two years in the making and under the supervision of professional planners from the University of Arkansas; during that period the planning commission met once a month; the entire area was inspected and traffic counts, door-to-door inquiries, and land use maps wrere utilized; since the adoption of the plan there has been no commercial development in the area; the Tate property is as suitable for residential as it is for any other use; rezoniug of the Tate propeiiy will be spot zoning and will devalue the residences; the city council leaned heavily on the judgment of the planning commission; homes were built on the assumption that they would be protected from commercial development; and once the Tate property is rezoned there is no assurance that the ordinary nuisances accompanying the operation of the average garage will not develop.

A total of twenty witnesses testified, many of them extensively. We have fairly summarized the meat of the record. We have not detailed all the factors about which the witnesses testified, but that does not mean that we have overlooked them. We would point out additionally that the chancellor had an unusual problem in judging the weight and credibility of the testimony of a number of witnesses. That was because some of them had at one time favored rezoning of the disputed tract and later changed their thinking. Then there was the problem of the possibility of a conflict of interest as to members of the planning commission who resided in the described residential areas. Of course the chancellor was at a vantage point in ferreting out the answers to those problems.

We recently had occasion to recount some fundamental rules of law applicable generally to zoning cases. Marling v. City of Little Rock, 245 Ark. 876, 435 S.W. 2d 94 (1968). The burden is on the landowner to preponderantly show, at the trial level, that the action of the city was arbitrary; on appeal we determine whether the trial court’s finding was contrary to a preponderance of the evidence; home owners who have relied on residential zoning are entitled to consideration and the use of a particular tract may bo reasonably restrained so as not to cause them injury; and rezoning cannot be justified solely on the ground that it is necessary to put a particular tract to its most remunerative use.

Another rule of law comes into play because the Tate tract is surrounded by property zoned residential. That means that he is asking for spot zoning. Therefore an additional burden of proof is placed on the applicant. The decided weight of authority is found in Yokley, Zoning Law and Practice, § 8-4, third edition (1965). It is there stated that the council can so amend a zoning ordinance when the character of a zoned area 1ms become so changed that a modification is necessary to promote public health, morals, safety, and welfare; but mere economic gain to the owner of a comparatively small area is not sufficient cause to amend.

Applying the recited law to the record before us, we are unable to say that the chancellor’s finding that the action of the city was not arbitrary is against the preponderance of the evidence. It is possible that the full development of Highway 270, as presently located, as the connecting link between Malvern and Interstate 30, may eventually change the character of the described subdivisions; nevertheless, we cannot base a finding on that unpredictable event.

Affirmed.


text:
    Old American Life Ins, Co. et al v. David Lewis
    5-4831
    438 S.W. 2d 22
    Opinion Delivered March 10, 1969

      Alfred J. Holland for appellants.

      Guy Brinkley for appellee.
   Lyle Brown, Justice.

Appellee David Lewis was awarded judgment against appellants, Old American Life Insurance Co. and National Security Life Insurance Co. Defendants below petitioned the court to set aside the judgment, alleging unavoidable casualty as justification for their failure to appear on the day set for trial. In dismissing that petition the trial court specifically found that they had not complied with Act 123 of 1963; Ark. Stat. Ann. § 27-2106.3 to 27-2106.6 (Supp. 1967). That act provides for the extension of the time for giving notice of appeal in cases where certain specified motions are filed. The sole question on appeal is whether the trial court applied the applicable law in denying the petition to vacate the judgment.

We discussed Act 123 in St. Louis S.W. Ry. v. Farrell, 241 Ark. 707, 409 S.W. 2d 341 (1966). “Act 123 was evidently intended to remedy an awkward situation created by Act 555 of 1953. ’ ’ Act 555 required a notice of'appeal to be filed within thirty days after entry of judgment by the trial court. That requirement had to be abandoned for the benefit of a losing party who might have good reason to file a post-judgment pleading, such as a motion for a new trial, or one of the several motions enumerated in Act 123. Consequently, Act 123 established a procedure whereby the time for filing notice of appeal could be postponed pending the determination of such a post-judgment pleading.

Act 123 does not affect the long established procedures for the setting aside of judgments. It is clear from an examination of the act that the principal subject of all four sections is “notice of appeal”; in fact that phrase appears in ¡every section and a total of seven times in the comparatively short act. Any donbt about the act not affecting existing procedures for review by the trial court of ifs proceedings is dispelled by the last sentence: “Nothing herein contained shall be deemed to limit the right of any party to review of proceedings upon any motion which the law may permit to be filed after expiration of the time for giving notice of appeal.”

Appellants are entitled to have a hearing and determination of their petition under the appropriate statutory procedure.

Beversed and remanded.


author: John A. Fogleman, Justice.

text:
    Hartford Accident & Indemnity Company v. Fred H. Warren
    5-4826
    438 S.W. 2d 31
    Opinion Delivered March 10, 1969

      Daggett & Daggett for appellant.

      Jake Breick for appellee.
   John A. Fogleman, Justice.

Hartford Accident & Indemnity Company appeals from a judgment in favor of Fred H. Warren under the uninsured motorists clause of a policy issued to him by Hartford. The principal point urged by appellant for reversal is its contention that a judgment against the uninsured motorist was a condition precedent to this action.

The policy in question contained clauses identical with those in the policy involved in MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S.W. 2d 252. In that case we held that when consent of the company to an action against the uninsured motorist was required to make a judgment therein conclusive on the company, the insured had the option to sue either his insurance company or the uninsured motorist or both. We deem this decision to be controlling here. This does not in any way prevent the insurance company from cross complaining against the uninsured motorist in an action brought against it, nor does it prevent a separate action by the insurance company against the uninsured motorist after a judgment in favor of its insured has been paid by it.

Appellant urges that the policy in this case does not contain the “consent” clause which influenced our decision in the Bradshaw case. In this respect, appellant is in error as the policy exhibited does contain this clause. The fact that reliance was placed on the lack of consent in the Bradshaw case but not in this case makes no difference in the application of the principle involved.

Appellant also contends that the judgment for $12,-000 is excessive and reflects the passion and prejudice of the jury.

There was evidence showing that appellee was earning $90 per week at the time of his injury. Warren’s testimony was in substance:

During the rush season he was also paid for overtime. Although he had an arthritic condition, it had never caused him to miss any work prior to the collision in which he was injured. After the automobile he was driving was struck from the rear by the uninsured motorist, Warren went to the emergency room of the hospital in West Memphis with soreness in the stomach area. The next morning he returned for a more thorough examination by Dr. Peeples. At that time his neck was beginning to get sore and his back stiff. He was hurt from the back of his neck down through his legs. He missed one or two days of work at this time. Because of his condition, his foreman got others to do some of the work he was normally expected to do. The foreman actually did some of it himself. Warren was given light work and was assigned the duty of instructing newly employed persons. About two months after the collision Dr. Peeples prescribed traction and placed Warren in the hospital for ten days. During this stay in the hospital, Warren only remained in traction about three hours. He was removed from traction by the doctor because of the severe pain it was causing. He lias obtained no relief from his condition and cannot lie flat on his back even long enough for the taking of x-rays without severe pain because of these injuries. lie cannot lift his right arm above his head because “it couldn’t be any worse if one of these doctors was tearing it off.” He complained of a catch in this arm at any time he attempted to reach behind him. He also said that his left arm was involved.

Although Warren is now totally disabled because of tuberculosis, he claims to have lost approximately three weeks from work during the five months following the collision because of his injuries.

Hr. A. H. Crenshaw, an orthopedic surgeon of Memphis, Tennessee, first saw Warren on a reference by Warren’s West Memphis physician. This was about seven weeks after his injury. Dr. Crenshaw’s diagnosis was sprain of the neck and low back superimposed upon preexisting osteoarthritis. He prescribed mild analgesics, application of wet hot packs, continuation of regular work, and staying in touch with Dr. Peeples. He next saw Warren about one year later when he found that the patient had reached maximum improvement. He exjDressed the opinion that appellant had a permanent partial disability to the body as a whole of about 20 percent, with one-half resulting from the preexisting condition and the other half from the collision. An examination about ten months later revealed no changes. Dr. Crenshaw expressed the opinion that Warren would not have suffered any disability from the collision in the absence of the preexisting arthritic condition and that this condition was aggravated by the collision sufficiently to cause the onset of his discomfort. While Dr. Crenshaw admitted that his evaluation of the disability resulting from the collision was based almost entirely on the subjective symptoms, he also said that it was based in part on his experience in treatment of numerous cases of this type. He expressed the opinion that appellant was not a malingerer.

In addition there was testimony that Warren discontinued his hunting and fishing and other outdoor activities after his injury. His wife testified that he had often come in from work and gone to bed without eating because of the pain he was suffering. She said that he avoided driving the automobile because of his inability to turn his head. After the collision he became very irritable with members of his family.

It was stipulated that appellee had an average future lifetime expectancy of 19 years.

We have no means for accurate measurement of pain and suffering. Nor do we have any means of determining the exact impact of a 10 percent disability upon the future earnings or earning capacity of one whose livelihood is earned through physical activities. In view of the evidences of pain exhibited by Warren, his hospitalization and his disability, we are unable to say that the judgment for $12,000 evidences passion or prejudice on the part of the jury or that it shocks the conscience of the court. Consequently, we cannot reverse the judgment on this basis.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    James Q. Bryan v. Ford, Bacon & Davis, et al
    5-4807
    438 S.W. 2d 472
    Opinion Delivered March 10, 1969
    [Rehearing denied April 14, 1969.]

      Bernard Whetstone for appellant.

      Shackleford & Shackleford for appellees.
   J. Fred Jones, Justice.

This is a workmen’s compensation case and involves the running of the statute of limitations for filing a claim with the Workmen’s Compensation Commission while the claimant pursued his employer’s public liability insurance carrier in a vain attempt to collect a personal injury judgment he had obtained by default against a fellow-employee third party tort feasor.

The facts, as revealed by the record, are as follows: The appellant, James Q. Bryan, was employed by Ford, Bacon & Davis Construction Corporation. Aetna Casualty and Surety Company was the compensation insurance carrier for Ford, Bacon & Davis, as well as the public liability carrier on a bus owned and used by Ford, Bacon & Davis, for the purpose of transporting employees to and from job sites.

On November 24, 1964, Bryan sustained injuries while in the course of Ms employment and while a passenger on his employer’s bus, being driven at the time by a fellow-employee, Reid. Aetna immediately recognized and accepted the injuries as compensable under the compensation coverage and paid to Bryan $585.00 for 16 weeks and five days temporary total disability. Aetna also paid the medical bills in the amount of $501.96 and tendered to Bryan $1,190.00 in payment of 34 weeks permanent partial disability on a medical estimate of 7.5% loss of use of the body as a whole.

On May 28, 1966, Bryan refunded to Aetna the amount of $1,086.96 by cashier’s check with a letter stating “I am making no claim for workmen’s compensation benefits,” and Bryan refused to accept the $1,190.00 tendered in payment of permanent partial disability. On January 24, 1966, Bryan filed suit for personal injuries in the Union County Circuit Court against his fellow-employee, Herman Reid, alleging that Reid’s negligence in driving the bus owned by the appellee, Ford, Bacon & Davis, was the proximate cause of Bryan’s injuries.

Reid filed no answer and on March 5,1966, a default judgment in the amount of $75,000.00 in favor of Bryan and $10,000.00 in favor of Bryan’s wife was rendered against Reid. The judgment against Reid was not paid so on June 3, 1966, Bryan filed suit against Aetna alleging that at the time of his injury Reid was driving the bus with the knowledge and consent of the owner and named insured, Ford, Bacon & Davis, and that Reid was an insured under the omnibus clause of the liability policy.

Both the U. S. District Court and the Eighth Circuit Court of Appeals held that Reid was not an insured under the liability policy because of a provision in the policy which provided that the insurance did not apply to any employee of the named insured with respect to injury to another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the vehicle in the business of such employer.

On September 12, 1967, Bryan filed claim with the Workmen’s Compensation Commission for total and permanent disability and Ford, Bacon & Davis and Aetna pleaded the statute of limitations.

Arkansas Statutes Annotated § 81-1318 (a) (1) and subsection (b) (Repl. 1960) provides as follows:

“A claim for compensation for disability on account of an injury... shall be barred unless filed with the Commission within two [2] years from the date of the accident...
In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of accident, which ever is greater. ’ ’

The referee and the full Commission allowed the claim and awarded to Bryan the temporary total compensation and medical payments previously paid and refunded by him. The referee and the Commission also awarded to Bryan a 25% permanent partial disability to the body as a whole, and awarded to Bryan’s attorney the maximum attorney’s fee on the amount controverted in excess of the 7%% originally tendered.

On appeal and cross-appeal to the Union County Circuit Court, the trial judge held that the claim was barred by the running of the statute of limitations, but that Bryan was still entitled to the uncontroverted amounts originally paid to and refunded by him. Bryan has appealed and Ford and Aetna have cross-appealed from the judgment of the trial court.

Oil direct appeal, the appellant relies on the following points:

“The Circuit Court erred when it found as a matter of law that the Statutes of Limitations barred the Appellant’s Workmen’s Compensation Claim.
The Workmen’s Compensation Commission erred as a matter of law when it found that the claimant was not entitled to 65% of the difference between the weekly wages earned by him prior to November 24, 1964, and the weekly wages that he earned subsequent to November 24, 1964; and, the Workmen’s Compensation Commission erred as did the Circuit Court when it found as a matter of fact that the claimant was not permanently and totally disabled within the meaning of the Arkansas Workmen’s Compensation Act.”

Since we agree with the trial court on the first point raised by the appellant, we do not reach appellant’s second point.

On cross-appeal, the appellees designate the following points to be argued:

“The circuit court was correct in its finding that the statute of limitations barred appellant’s workmen’s compensation claim.
If it be found that the statute of limitations does not bar appellant’s claim, the appellant is not entitled to permanent total disability benefits.
The circuit court erred in finding that the appellees should pay to the appellant any sum of money. ’ ’

Since we agree with appellees’ first point we do not reach the appellees’ second point, but appellees’ third point has given ns considerable difficulty.

Judge Mayfield has favored us with a very thorough, written opinion in which he clearly analyzes the award of the Commission and the trial court made findings of fact and conclusions of law, in part as follows:

''...[T]he carrier resisted the claim on the basis that it was barred by the provisions of Section 18, (Ark. Stats. 81-1318) of the Workmen’s Compensation Act.
Both the Referee and the full Commission rejected the carrier’s contention and awarded claimant a permanent partial disability to the body as a whole of 25 per cent based on loss of earning capacity. The reasoning behind the holding that the claim was not barred comes from a construction placed upon Subsection (e) of Section 18 (Ark. Stats. 81-1318). This subsection provides:
'Whenever recovery in an action at law to recover damages for injury to or death of an employee is denied to any person on the ground that the employee and his employer were subject to the provisions of this act, the limitations prescribed in subsections (a) and (b) shall begin to run from the date of the termination of such action. In such event the employer or carrier shall be allowed a credit for actual cost of defending; the action at law, not to exceed two hundred fifty dollars ($250), which shall be deducted from any compensation paid.’
Looking at 18 (e) we see that it requires: (1) an action at law to recover damages, (2) a denial of recovery and (3) that the denial be on the ground that the employee and his employer were subject to the Arkansas Workmen’s Compensation Act. When these three requirements are met then the limitations in subsections (a) and (b) shall begin to run from the date of the termination of the action at law.
Laying the facts of this case down beside these requirements we find that there was an action at law to recover damages, but that there was no denial of recovery. To the contrary the claimant recovered a judgment iu the sum of $75,000.00. It is true that the claimant was not successful in his attempt to collect his judgment from the liability insurer, but Section 18 (e) does not even talk about collection of the judgment and certainly it does not provide that the time of limitation in which to make claim for compensation benefits begins to run from the date an action seeking to collect a judgment from an insurance company is unsuccessfully terminated.
In fact, Section 18 (e) is not even dealing with a situation against a third party such as we have here. The last sentence of Section 18 (e) provides for the employer or his carrier to be allowed a credit for the actual cost, not to exceed $250.00 of [sic] defending the action at law. Obviously the legislature was not thinking about a suit against a third party, but was thinking about situations where the employer would successfully defend that action on the ground that the employer and his employees were subject to the Workmen’s Compensation Act.
In addition to the above, the facts here are that the action at law to collect the judgment from the liability insurer was unsuccessful not because the claimant and his employer were subject to the Workmen’s Compensation Act, but because of a provision in the liability policy that provided that it did not cover the liability of an employee with respect to an injury to a co-employee in the course of employment and in an accident arising out of the maintenance or use of the insured vehicle in the business of such employer.
The referee cited the case of Aetna Casualty & Storety Co. v. Jordan, 234 Ark. 339, 352 S.W. (2) 75, in his opinion, but that case do.es not seem to support his construction of Section 18 (e) as applied to the facts in this ease. There the claimant attempted to recover Workmen’s compensation benefits in Louisiana for injuries sustained in Arkansas. The Louisiana Court held that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction of the matter and dismissed his Louisiana action. The claimant then filed claim in Arkansas and it was held that the time limitations in Section 18 did not start to run until the termination of his action in Louisiana.
. . . “ [T]he claim made in Louisiana was against the employer and not some third party and no recovery was allowed because the claimant and his employer were subject to the Arkansas Workmen’s Compensation Act ...”

We find no difficulty at all in affirming the trial court in holding that the statutory period had run for the filing of claims when the claim was filed in this case. Appellees’ third point and the trial court’s treatment of it have given us some difficulty, but we conclude that the trial court reached the proper results. The trial cc^jirt’s reasoning on this point is set out in his opinion as follows:

“Having concluded that the construction placed on Section 18 (e) was incorrect still, in the Court’s opinion, the claimant is entitled to be paid the $1190.00 which was tendered to him for permanent partial disability resulting from the 7% per cent loss of use of the body as a whole. And the Court also thinks that the claimant is entitled to a refund of the $1086.96 which he returned to the carrier for the hospital and medical benefits paid for his behalf and for the sixteen weeks and five days temporary total disability paid to him.
It was found by both the Referee and the full Commission that the above amounts are not controverted by the carrier and that the only things controverted is the claim for permanent disability above the 7% per cent. It is not clear whether this is based on what was thought to be the carrier’s contentions at the hearings or whether it is based on the carrier’s voluntary action in paying and tendering these amounts.
It is clear that the carrier contended that the claimant had waived his right to recover anything above the permanent partial disability of 7% per cent to the body as a whole. On the waiver matter the Commission relied on Section 20 (a) (Ark. Stats. 81-1320 (a)) and Section 40 (a) (2) (Ark. Stats. 81-1340 (a) (2)) of the Act and held that a claimant cannot, as a matter of law, waive his rights to compensation benefits. * * *
But if there is any question about waiver of the claimant’s right to be paid the $1190.00 for the 7% per cent permanent partial disability or to have refunded to him the $1086.96 which he returned for hospital, medical and temporary total disability benefits paid, the question of waiver as to those benefits must be determined. This is true because these benefits could not be barred by Section 18 of the Act. These benefits were paid or tendered by the carrier without any claim being filed with the Commission and the question is, to whom does this money now belong?
The answer must be that this money still belongs to the claimant. It is beyond question that the only reason the claimant returned and refused the amounts paid and tendered was because he wanted to collect his judgment against his co-employee from the liability insurer. It would not do, he thought, to claim that he was not injured in the course of his employment while retaining workmen’s compensation benefits paid to him and for him. It would have been equally incongruous for the carrier, which just happened to also be the liability insurer, to accept the return of the compensation benefits and still say that the claimant was in the course of his employment at the time he was injured.
So the claimant tried to return the benefits paid and tried to refuse the benefits tendered but the carrier did not really accept the return and in the Final Report and Settlement Receipt which is in the Record the carrier states that the check refused by the claimant ‘will be paid on demand.’
The truth of the matter is that these benefits were, in effect, laid aside by both employee and employer while they awaited the outcome of the suit against the liability insurer. That suit has now been concluded and the money which was ‘laid aside’ belongs to the claimant and should be turned over to him.
So rather than rest our determination on the Commission’s finding that, as a matter of law, these benefits could not be waived we prefer to affirm the Commission on this point for the reason that there is no evidence in the Record to support a finding of waiver of these benefits already paid or tendered. ’ ’
The trial court then held:
“ . . . [T]he order or award of the Commission is modified to provide that the carrier is ordered to pay to the claimant the sums of $1086.96 and $1190.00, or a total of $2,276.96, with no credit allowed the carrier against this total and with no attorney’s fee to be paid to claimant or Ms attorney by the carrier.
Any order or award of the Commission contrary to that above provided is reversed and set aside and so far as the same conforms to what is above provided it is affirmed. ’ ’

This is the first instance we have encountered under our Workmen’s Compensation Law where a claimant has attempted to avoid receipt of compensation benefits. Of course, an employee is unable to take his employment from under the provisions of the Workmen’s Compensation Act by entering into an agreement waiving his rights to compensation under the Act, but there is no provision in the Workmen’s Compensation Law that will force an injured employee to accept or keep compensation benefits to which he is entitled after they are paid or tendered to him.

Arkansas Statutes Annotated § 81-1320 (a) (Repl. 1960) provides as follows:

“No agreement by an employee to waive his right to compensation shall be valid, and no contract, regulation, or device whatsoever, shall operate to relieve the employer or carrier, in whole or in part, from any liability created by tMs act [§§ 81-1301 — 81-1349], except as specifically provided elsewhere in this act.”

We are of the opinion that this section has no application to the facts in the case at bar. This section was intended to protect employees against the archaic procedure so prevalent in the early history of Workmen’s Compensation Law, when unscrupulous employers were able to avoid compensation liability by the simple device and procedure of having the employee sign a contract waiving all rights to compensation in consideration of being employed. See Griffiths v. Earl of Dudley, 9 Q.B.D. 357 (1882).

The real question on this point in the ease at bar, is what part, if any, of the original amounts paid and tendered to the appellant, but refunded and refused by him, is covered under, and dependent upon, the untimely claim filed by the appellant. The claim as filed by the appellant did include these amounts, so the question boils down to whether it was necessary that a claim be timely filed with the Commission in order to recover these amounts. Certainly no equitable principle would cast such penalty on the appellant for his error in the law, but statutes of limitations present questions of law and not of equity.

Arkansas Statutes Annotated § 81-1319 (Hepl. 1960) provides as follows:

“Compensation shall be paid directly to the person entitled thereto without an award, except in those cases where liability has been controverted by the employer. * * * ”

Subsequent sections of the statute direct when the payments are to be made by the employer and provide penalties for noncompliance. The appellees did not controvert appellant’s right to compensation in this case. On the contrary, they recognized appellant’s injuries as compensable and accepted their responsibility in connection therewith. They made weekly payments of compensation to the appellant as the payments became due. The appellant was paid and accepted all he was entitled to and all that the appellees owed for temporary partial disability suffered by the appellant. The appellees also furnished and paid for all the hospital and medical services to which the appellant was entitled and for which the appellees were obligated and liable. The appellant simply returned this amount to the appellee insurance carrier who makes no claim to its ownership, but who only contends that repayment is barred by the statute of limitations for filing claims.

The statute of limitations as set out in the act, Ark. Stat. Ann. § 81-1318 (a) (1) and (b), supra, was designed and intended to bar late claims for compensation for disability on account of injury and was not designed or intended to bar an employee’s right to recover money paid to him in compensation and paid by him to someone who has no legal right to accept or retainit. So we conclude that the trial court was correct in holding that the appellant is entitled to a return of the temporary total compensation and medical payments he paid to the appellee.

Arkansas Statutes Annotated § 81-1319 (h) (Eepl. 1960) provides as follows:

"Within thirty (30) days after the final payment of compensation has been made, the employer shall send to the Commission a notice, in accordance with a form prescribed by the Commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid. If the employer fails so to notify the Commission within such time, the Commission may assess against such employer a civil penalty in an amount not exceeding one hundred ($100.00) dollars, but no penalty shall be assessed without notice to the employer, giving him an opportunity to be heard. ’ ’

Upon jjayment of compensation for the 7%% permanent partial disability, the appellees furnished this notice of final payment on form A-ll prescribed by the Commission. On the bottom portion of this form is a loortion designated £ £ final receipt ’ ’ intended for the appellant’s signature acknowledging the receipt of payment. This receipt form was unsigned by the appellant but was filed with the Commission bearing the notation " check for PPD not accepted. Will be paid on demand.” So wo conclude that the trial court was correct in holding that the appellant is entitled to this amount also.

We conclude that the Commission was substantially correct in its statement that “when a claimant erroneously brings an action in law against his employer, the statute for the filing of claims is tolled until the termination of the action of law.” Indeed it would appear that the action at law would of necessity be against an employer before recovery could be denied “on the ground that the employee and his employer were subject to the provision of this act” as provided in § 18 (e), supra.

We conclude, however, that the Commission must have considered the action to recover damages in the case at bar was either brought against the employer, or that recovery was denied on the ground that the employee and his employer were subject to the provisions of the Workmen’s Compensation Act. In this, we conclude, the Commission erred.

The practical question is not whether the appellant is entitled to the workmen’s compensation benefits originally paid by the appellees, the appellees having admitted that the appellant was so entitled when the benefits were paid without controversion, without award and without the necessity of filing a claim. The practical question is whether the appellees are entitled to keep the benefits returned to them by the appellant. The appellant is not required to file a claim with the Commission for compensation benefits already paid to and received by him, and the jurisdiction of the Commission to order a return or repayment of compensation benefits, once paid to a claimant and then voluntarily returned by him to the compensation insurance carrier, is not questioned in this case.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Walter Hinton, et al v. State of Arkansas ex rel. Joe Purcell, Attorney General
    4836
    438 S.W. 2d 57
    Opinion Delivered March 10, 1969

      J. W. Barron for appellants.

      Joe Purcell, Attorney General and Larry W. Chandler, Assistant Attorney General, for appellee.

      Gannaway & Barrow amicus curiae brief.
   Conley Byrd, Justice.

At issue here is the validity of certain regulations of the Alcoholic Beverage Control Board and “Class Six Club Permits” promulgated pursuant thereto, authorizing “Class Six” permittees to sell for consumption on the permitted premises spirituous liquors as defined by the Thorne Liquor Act, Act 108 of 1935. The trial court held that the regulations and permits issued thereunder contravelled the provisions of the Thorne Liquor Act and enjoined issuance of permits. Appellants Walter Hinton, John Cage and Claude Williams, Jr. as members of the Alcoholic Beverage Control Board appeal.

The regulation here involved provides in part as follows:

“The following regulations apply for Class 6 Club Permits pursuant to the provisions of Ark. Stats. 48-302 (1964 Repl.), this being Section 2 of article 3 of Act 108 of 1935 as amended...
“(2) No member of such Club or any officer, agent or employee shall be paid or directly or indirectly receive in the form of salary or other compensation any part of the revenue derived from the disposition or serving of alcoholic beverages beyond the amount of such salary or other compensation as may be fixed and voted at meetings by the members or by the directors or other governing body
“(5) The Holder of a Class 6 Club Permit will be authorized to serve on its permitted premises vinous, spirituous or malt liquors ... to the Club’s adult members, and the members of their families over the age of 21 and duly qualified adult guests . . . and to assess an appropriate charge therefor ....
“(7) Each licensee shall keep complete and accurate records of alcoholic beverages purchased
“(9) All wholesalers of alcoholic beverages are prohibited from selling to holders of Class 6 Club Permits.”

The Arkansas Alcoholic Control Act, or Thorne Act, Act 108 of 1935, was enacted following the adoption of the twenty-first amendment to the United States Constitution. This comprehensive act, providing for regulation of the manufacture, distribution and dispensing of spirituous, vinous and malt liquors through the issuance of permits, with minor amendments, is codified under Title 48 of Arkansas Statutes. It provides as follows:

“ARTICLE I
“Section 1. The word ‘person’ as used in this Act shall include any and all corporations, partnerships, associations or individuals.
“Section. 2. The word ‘manufacturer’ shall mean, unless otherwise specified, any person engaged in the business of distilling, brewing, making, blending, rectifying or producing for sale in wholesale quantities alcoholic liquors of any kind, including whiskey, brandy, cordials, liquors, also beers, or other liquids containing alcohol except wines.
“Section 3. A ‘dispensary’ shall mean any store which, under the provisions of this Act, and having paid all taxes required by the State, sells at retail in unbroken packages for non-consumption on the premises any intoxicating alcoholic liquor as defined by this Act.
“Section 4. The words ‘Commissioner’ or ‘Commissioner of Revenues’ refer to Arkansas State Commissioner of Revenues ....
“ARTICLE IT
“Section 1. The provisions of this Act shall he enforced by the Commissioner of Revenues of the State of Arkansas ....
“Section 3. The Commissioner of Revenues shall have the following powers, functions and duties:
“(a) To grant and revoke for canse permits issued under the provisions of this Act.
“(b) To fix by rule the standards of manufacture, rectifying and blending in order to insure the use of proper ingredients and methods in the manufacture, rectifying and blending of vinous, spirituous or malt liquors, to be sold in the State.
“(c) To adopt rules and regulations for the supervision and control of the manufacture and sale of vinous, (except wines) spirituous or malt liquors throughout the State not inconsistent with law. [Emphasis ours.]
“(d) To carry on by its agents or employees inspections of any premises where beer, or spirituous liquors are manufactured for sale or sold.”
“ ARTICLE III
“Section 1. (a) It is hereby declared to be the public policy of the State that the number of permits in this State to dispense vinous, (except wines) spirituous or malt liquor shall be restricted, and the Commissioner of Revenues is hereby empowered to determine whether public convenience and advantage will be promoted by issuing such permits ....
“Section 2. No vinous, (except wines) spirituous or malt liquors shall be manufactured in this State for storage or sale at retail within the State after this Act becomes effective without a permit therefor issued by the Commissioner of Revenues as herein provided. No person shall sell vinous, spirituous or malt liquors in this State, except as provided in this Act, provided the provisions of this Act shall not apply to the manufacturer, sale, and distribution of wines in this State.
“There shall he six kinds of permits, each of which shall be distinctive in color and design so as to be readily distinguishable from each other, to-wit: (1) Distiller’s permit; (2) brewer’s permit; (3) rectifier’s permit; (4) wholesaler’s permit; (5) dispenser’s permit, and (6) hotel, restaurant or club permit.
“Section 3. (a) Any person may apply to the Commissioner of. Revenues for a permit to manufacture, distil], transport, store and sell to a wholesaler, jobber or distributor spirituous, vinous (except wines) or malt liquors to be used and sold for beverage purposes ....
“(c) A distiller or manufacturer may, under such rules as may be adopted by the Commissioner of Revenues, sell, deliver or transport only to (1) wholesalers, (2) rectifiers, (3) export out of the State.
“Section 4. (a) Any person may apply to the Commissioner of Revenues for a permit for rectifying, purifying, mixing, blending or flavoring of spirituous liquors or the bottling, warehousing or other handling or distribution of rectified distilled spirits ....
“(b) Any rectifier may, under such rules as may be adopted by the Commissioner of Revenues, sell, deliver, or transport only to (1) wholesalers, (2) other rectifiers, (3) export out of the state.
“Section 5. Any person other than a distiller, manufacturer or rectifier, may apply to the Commissioner of Revenues, for a permit to sell spirituous, vinous (except wines) or malt liquors at wholesale ....
“No wholesaler shall sell or contract to sell any spirituous, vinous, or malt liquors to any dis-pens ary, hotel, restaurant or club, who is not duly authorized under this Act to receive, possess, transport, distribute or sell same.
‘‘Section 6. Any person, other than a distiller, rectifier or wholesaler, may apply to the Commissioner of Revenues for a permit to sell and dispense vinous or spirituous liquors for beverage purposes at retail .... Such permit shall contain a description of the premises permitted and in form and substance shall be a permit to the person therein specifically designated to sell and dispense at retail spirituous or vinous liquors.
“All such sales shall be in unbroken packages and the same shall not be opened or the contents or any part consumed on the premises where purchased.”

The duties of the Commissioner of Revenues set out in the 1935 Act have been transferred to appellants by Acts 1951, No. 159.

Thus we see that under Acts 1935, No. 108, the Commissioner of Revenues could only “adopt rules and regulations for the supervision and control of the manufacture and sale of vinous, (except wines) spirituous or malt liquors . . . not inconsistent with law.” By Article III, Section 1, it is provided “ . . . that the number of permits ... to dispense . . . liquor shall be restricted, and the Commissioner of Revenues is . . . empowered to determine whether public convenience . . . will be promoted by issuing such permits.” Since a “dispensary”, under Article I, Section 3, is defined as any . . . “store which . . . sells at retail in unbroken packages for non-consumption on the premises any intoxicating . . . liquor,” it appears that the use of the word “dispense”, as used in connection with the permits the Commissioner was authorized to supervise, should have the same limitation.

That the word “dispense” was used, in Article III, Section 1, to prohibit the on-premises consumption of intoxicating liquors is further demonstrated by Article III, Sections 2, 3, 4, 5, and 6. While it is true that section 2 provides for six classes of permits, the last of which is “(6) hotel, restaurant or club permit,” it also provides that, “No person shall sell vinous, spirituous or malt liquors . . . except as provided in this Act. . . . ” Under the scheme of the same Article, section 3 permits a person to apply for a distiller’s or manufacturer’s permit; section 4 permits a person to apply for a rectifier’s permit; and section 5 permits a person to apply for a wholesaler’s permit, all of whom are prohibited from selling “ ... to any dispensary, hotel, restaurant or club, who is not duly authorized under this Act to receive, possess, transport, distribute or sell same.” Section 6 of the same Article permits a person to apply for a retailer’s permit but with the restriction that the permit “to sell and dispense at retail ...” shall “ ... be in unbroken packages and the same shall not be opened or the contents or any part consumed on the premises where purchased.” Thus we have a statutory scheme authorizing the issuance of permits for dispensing spirituous liquors and authorizing persons to apply for distiller’s permits, rectifier’s permits, wholesaler’s permits and retailer’s permits, but no such authorization is given for a permit for on premises consumption of spirituous liquors. We can find no reason for legislative designation of permits that could be ajiplied for except to exclude by implication application for any other type of permit, Cook Commissioner of Revenues v. Arkansas Missouri Power Corp., 209 Ark. 750, 192 S.W. 2d 210 (1946).

Therefore we hold that appellants were not authorized to issue permits for on premises consumption of vinous, spirituous or malt liquors. It necessarily follows that the regulations for Class Six Club Permits are not authorized by law and are invalid.

Affirmed.