author: James H. Pilkinton, Judge.

text:
    Mamie Ford LIPE v. Gena C. THOMAS
    CA 80-63
    600 S.W. 2d 921
    Court of Appeals of Arkansas
    Opinion delivered June 25, 1980
    Released for publication July 8, 1980

      Alex G. Streett and Jon P. Shermer, Jr., for appellant.

      Bullock, Hardin, & McCormick, by: Luther B. Hardin, for appellees.
   James H. Pilkinton, Judge.

On December 19, 1973, Mrs. Mamie Ford Lipe, then age 73, deeded 4.75 acres of land to her daughter, Mrs. Gena C. Thomas. The property was improved and is now worth in excess of $100,000. It is located on Highway 64 East in the city of Russellville. Mrs. Lipe has six other living children, and the property she conveyed to her daughter, Mrs. Thomas, was all that she owned. Mrs. Lipe reserved a life estate in the property and has continued in possession.

On November 30, 1978, Mrs. Lipe filed suit seeking to set aside the 1973 conveyance to her daughter. She alleged that Mrs. Thomas gained title to the property in question through fraud, undue influence and duress. There was no allegation of incapacity to convey. The complaint alleges only that Mrs. Lipe was in a weakened mental and physical condition, and was over-reached by her daughter. It was also alleged, and is argued on appeal, that the conveyance was made without consideration.

After hearing the evidence presented, the chancellor found that the property was conveyed by Mrs. Lipe to Mrs. Thomas in 1973 as a gift; and, that the evidence presented was not clear, cogent or convincing that the deed should be cancelled. A decree was entered on this finding, and the complaint was dismissed for want of equity but the cost was assessed against the defendant. Mrs. Lipe has appealed from that decree.

Appellant first argues that the court erred in holding that the conveyance was a gift. Natural love and affection have always been sufficient consideration for a deed where the relationship of the parties is such as to justify the presumption that love and affection exist. Gross v. Young, 242 Ark. 604, 414 S.W. 2d 624 (1967); Faulkner v. Byland, 201 Ark. 1185, 147 S.W. 2d 37 (1941). Appellant takes the position that there was no testimony as to any love and affection existing between Mrs. Lipe and Mrs. Thomas. However, the record shows that Mrs. Lipe herself testified that “Gena and I got along well for a mother-daughter relationship.” Another daughter testified that “I thought the relationship between my mother and Gena was good.” Another daughter, Mrs. Ava Bowden, testified that Gena’s relationship with her mother was closer than any of her other sisters. There was also other significant evidence showing that Mrs. Lipe freely told other people about things Mrs. Thomas had done for her, and how much she loved the appellee and her family and that she (Mrs. Lipe) couldn’t do without them. Although there was testimony to the contrary, there was sufficient evidence from which the chancellor could find the love and affection necessary to support the deed in question. The chancellor was in a better position than we are to weigh the testimony, observe the demeanor of the witnesses, and judge the credibility of the witnesses. Welch v. Brewer, 267 Ark. 763, 590 S.W. 2d 235 (Ark. App. 1979); May v. Alsobrook, 221 Ark. 293, 253 S.W. 2d 29 (1952). A careful examination of the testimony reveals that all of the elements of a gift were present in this case. To say the least, there was sufficient evidence from which the chancellor could properly find that appellant in 1973 made a gift of this property to her daughter.

The appellant argues that she was over-reached, and that the conveyance was the result of fraud, undue influence and duress. However, there is no substantial evidence to show that Mrs. Lipe, although advanced in years, was in a weakened physical and mental condition in December, 1973, when she made this particular deed. There is also no substantial testimony that Mrs. Lipe was deprived of contact with other members of her family, specifically her children. On the contrary, there, is evidence that Mrs. Lipe made Mrs. Thomas vow that neither one of them would tell the other children about the gift to avoid any misunderstanding and hard feelings. The appellant strongly contends that she was told, or was led to believe by Mrs. Thomas, that she would be put in a nursing home; and, that the only way she could be assured of not being put in a nursing home was to deed the property in question to her daughter, Mrs. Gena Thomas. Mrs. Thomas denied making statements to her mother about putting her in a nursing home, or even hearing statements from anyone about her mother being placed in a rest home. Although Mrs. Lipe said that Mrs. Thomas threatened to put her in a rest home if she did not give her a deed to the property, Mrs. Lipe also testified that she didn’t really think she would have m go to a nursing home, if she didn’t make the deed, because she didn’t believe that the rest of the children wtmld stand for it and let her go. The testimony on this matter is conflicting, and it was the prerogative of the chancellor to determine the weight and credibility of the various witnesses. Welch v. Brewer, supra.

The record also shows that in 1953 Mrs. Lipe deeded this same property jointly to her son, Mack Cheatham, and to Gena Thomas. They subsequently re-conveyed the property to their mother. In 1964 Mrs. Lipe made a will under the terms of which she devised all of her property to Mack Cheatham and to Mrs. Thomas. The testimony is clear that as early as 1953 Mrs. Lipe intended that all. that property which she owned at the time of her death should be divided between these two children. In fact, Mack Cheatham testified that he and Mrs. Thomas had always been favored by their mother.

Testimony in this case further shows that problems arose in 1973 between Mack Cheatham and his mother. Mrs. Lipe did not approve of Mack Cheatham’s wife and testimony shows that Mrs. Lipe took steps to insure that neither Mack nor his wife would share in her estate. The evidence shows that Mrs. Lipe first executed a new "will in 1973 which devised all of her property to Mrs. Thomas. Shortly thereafter, and apparently realizing that a will could be contested, Mrs. Lipe decided that the best way to accomplish her objective was to make a deed. According to the testimony of the appellee, Mrs. Lipe stated, “They can contest the will, but they cannot contest a deed.” She then executed the conveyance now in question but reserved a life estate in the property.

There is evidence in the record to show that the other children, principally Mack Cheatham, finally found out about the conveyance; and ultimately caused their mother to become dissatisfied, and to attempt to reconsider. This lawsuit was then filed in 1978 in an effort to set aside the 1973 conveyance.

This is not a case where it is contended that the deed was invalid because of the incapacity of the grantor. Here it is contended that the deed was obtained by duress or fraud. Under such circumstances, the law requires that the proof be clear, cogent and convincing before the deed can be set aside. Duncan v. Hensley, 248 Ark. 1083, 455 S.W. 2d 113 (1970); Davidson v. Bell, 247 Ark. 705, 447 S.W. 2d 338 (1969). The chancellor found that the appellant, as plaintiff below, had failed to discharge the required burden of proof. We are unable to say that the chancellor’s findings were clearly against even a preponderance of the evidence; and the proof tails far short of being clear, cogent and convincing.

Affirmed.


source: Caselaw Access Project

author: Marian F. Penix, Judge.

license: Public Domain

text:
    CHOUPIQUE ENTERPRISES et al v. Charles LANSFORD et al
    CA 80-64
    601 S.W. 2d 237
    Court of Appeals of Arkansas
    Opinion delivered June 25, 1980
    Released for publication July 8, 1980

      Arnold, Arnold, Lavender & Rochelle, Ltd., by: E. Ben Franks, for appellants.

      'Williams & Kemp, by: Karlton H. Kemp, for appellees.
   Marian F. Penix, Judge.

Charles Lansford and Lenita Lansford, his wife, Lucy Fultz, James R. Shelton and Lois Shelton, his wife, Freddie Russell Shelton and Peggy Shelton, his wife, Earline Shelbourne, Harold Shelbourne, and Irene Shelbourne, his wife, Helen Shelbourne, William F. Sanders, Margaret Shelbourne, Lynne Shelbourne and Carolyn Shelbourne, his wife sued Choupique Enterprises, Inc., Edward J. Stine, Earnest Redfearn, Tommy Redfearn and Otha Moore. The suit, brought in Circuit Court, was for damages for trespass and wrongful removal of timber from a 15.03 acre tract which plaintiffs owned. The defendants counter-claimed and claimed to be the owners of the disputed 15.03 acre tract on the basis of adverse possession. The case was removed to Chancery to determine the defendant’s claim of adverse possession. The Court granted Plaintiff s motion to bifurcate and reserved for jury trial in Circuit Court the question of damages and entitlement to double or triple damages if Chancery Court did not make those issues moot. The Chancery Court quieted title in the plaintiffs, appellees here. Defendant-appellant filed this appeal.

The tract in question is surrounded on three sides by land owned by Choupique, appellant. The south side or fourth boundary is Highway 82. The tract is wooded. Prior to 1978, the timber was last cut from it in 1952 or 1953. From 1953 to 1978, Plaintiffs-appellees have allowed the timber to grow on the land. Choupique built fences on the North and East sides of the tract in 1961, on the West side in 1964 or 1965. There were remains of a fence along Highway 82 but it had fallen into disuse. In June 1966, R. J. Stine, Vice-President of Choupique, talked to the company lawyer about the inconvenience of having the 15 acre tract not under the Choupique fence.

The Choupique fence on three sides of the tract would sometimes have gaps develop and Choupique’s cattle would escape onto Highway 82. In 1966, at Stine’s instigation, Choupique built a fence along the south line where an old fence lay. At the same time gaps were cut in the fencing on the other three sides in order for cattle to pass freely onto and across the tract. Stine testified Choupique made no claim to this land until 1973 or seven years after 1966. Stine testified that in his judgment the building of the South fence in 1966 resulted in title vesting seven years later in Choupique by adverse possession. However, it was not until 1978 that Choupique made known its intention to claim adversely, by attempting to assess the land in its name and by its entering into a contract to cut timber. These overt acts by Choupique resulted in the plaintiffs filing the present lawsuit.

Choupique contends the fence, which was erected in 1966 and which remained in serviceable and usable condition, was a continuous, hostile, open and notorious act for the required statutory period of time.

The plaintiffs contend the possession by Choupique was begun in almost a surreptitious manner, with Stine’s awareness the fence built with bois d’arc posts would soon be camoflaged by the thick underbrush and by the quick regrowth of weeds, vines, etc. Choupique did not use creosoted posts on the South fence as had been used in its other fencing but rather used the same bois d’arc posts as the old fence. This might lead a person to observe that although the South fence joined the Choupique fencing on the east and west that it actually was not a part of the Choupique enclosure but rather a re-building of the same fence which had been along the South line.

The Court found the fence along the southern boundary of the 15 acre tract was not openly discernible except for a very short period following its construction, and that knowledge of the 15 acre enclosure by Choupique would not likely be brought home to the several owners of the tract unless those owners were to examine the premises by foot. The Court found it doubtful that Choupique’s possession was open and notorious prior to the 1978 timber cutting. The Court found that Choupique’s claim of title by adverse possession should be denied and that title to the several tracts of land should be adjusted and found to remain in the several plaintiffs according to their record title and said tracts should be quieted in plaintiffs respectively free and clear of the adverse claim asserted by Choupique.

In Terral v. Brooks, 194 Ark. 311, 108 S.W. 2d 489 (1937), the Court quoted from Corpus Juris Secundum, Adverse Possession, Volume 2, Section 45, page 559:

Notorious possession contemplates possession that is so conspicuous that it is generally known and talked of by the public or the people in the neighborhood . . . The true owner must have knowledge or notice that possession is hostile; and that this may and must consist either of actual knoweldge or of constructive notice arising from the openness and notoriety of the possession.

The rebuilding of the South fence in 1966 was in an area described by witnesses as being heavily covered with dense underbrush. The same type posts and wire were in the fence prior to the rebuilding. All of the plaintiffs testified to not noticing any changes in the South fence in 1966 or thereafter. Henry Maddox, General Manager of Choupique from I960 to 1965, testified the South fence is in the same position that it was prior to the work in 1966, and that the first he realized Choupique was claiming the fifteen acres was in 1979 when Stine talked to him. He further testified he had driven past the property at least once or twice a week since 1965 and had never seen any cattle on the property.

Stine knew the plaintiffs’ names but did not mention to them Choupique was claiming the property. Plaintiff Lansford testified he spoke with Stine in 1974 telling him he had purchased the west one-third of the property, yet Stine said nothing to indicate Choupique was claiming the property. Plaintiff Shelton testified he met Stine in 1978 and told him he owned land on both sides of the highway, and Stine did not indicate Choupique was claiming the fifteen acres.

Choupique did not record any document indicating a claim or color of title, did not make any improvements on the tract, except for rebuilding the fence, did not cultivate nor farm the land, did not attempt to pay taxes until 1978 and did not remove any timber until 1978.

In examination by the Court, Choupique’s Vice-President, Stine, testified to not claiming the land until more than seven years from the rebuilding of the fence. The occupant must have the intention to claim ownership in addition to possession. The hostile character of possession depends upon the occupant’s own views. See Pinkert v. Polk, 220 Ark. 232, 247 S.W. 2d 19 (1952) and Terral, supra.

Adverse possession requires (1) intent on the part of the occupant (2) open and notorious possession (3) continuous possession for seven years and (4) exclusive possession for seven years. Not all of these elements are present in this case.

Ten witnesses testified Choupique’s cattle were never seen on the 15 acres before or after 1966.

In the 1954 case of Dierks Lumber & Coal Company v. Carroll, 223 Ark. 424, 266 S.W. 2d 294, the Court held the appellee who was claiming by adverse possession had not regularly nor continuously entered the land and the enclosure with the other lands belonging to him was not enough.

The plaintiff s use and enjoyment of the land was not interfered with by Choupique in any way until 1978. The plaintiffs testified to having gone on the land to dig small trees and violets. Choupique’s possession was not exclusive of plaintiffs.

The Court correctly found Choupique has failed to meet its burden of proving ownership of the property by adverse possession.

Affirmed.


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

text:
    BREEDEN DODGE, INC. v. ACME INDUSTRIAL LAUNDRY, INC.
    CA 80-142
    601 S.W. 2d 239
    Court of Appeals
    Opinion delivered June 25, 1980
    Released publication

      Warner & Smith, by: Dorsey M. Ryan, for appellant.

      Shaw & Ledbetter, by: James A. Arnold, II, for appellee.
   Marian F. Penix, Judge.

Breeden Dodge, Inc. and Laundry, Inc. executed a “Preferred Risk Agreement” on August 3, 1977. The Agreement provided that, for a term of two years, Acme would furnish uniforms to Breeden’s Service Department employees and Breeden would pay a fee for Acme’s services in supplying and laundering the uniforms and servicing the account. The contract provided Breeden could cancel its remaining obligations prior to the end of the two year term by giving thirty (30) days’ written notice of its intention to cancel and, thereafter, purchasing the uniforms Acme had purchased and provided for Breeden’s employees. On August 14, 1978 Breeden notified Acme by letter of its intention to cancel as of September 15, 1978. However, Breeden refused to purchase the uniforms. Acme sued Breeden to recover a total of $2,286.50. The jury returned a verdict for Acme in the amount of $1,896.00. Breeden had moved for a directed verdict at the close of Acme’s case in chief. Breeden appealed.

Breeden contends the Court erred in not granting a directed verdict. The interpretation placed upon Paragraph 9 of the Contract is the crux of this case. Paragraph 9 provides:

9. Should the Customer desire to cancel the service during the term of this agreement, Customer agrees to purchase the stock of garments (shirts, pants, jackets, etc.) as listed above or added thereto that are provided for use of Customer or his employees from the Company at prices listed below. In the event of such cancellation, Customer must give thirty (30) days written notice of intention to so cancel to the Company, and agrees to purchase garments which are the subject matter of this agreement at the following prices: $12.00 per suit; $5.50 per shirt; $6.50 per pair of pants; $15.00 per jacket.

Breeden alleges Paragraph 9 is not enforceable as a liquidated damages clause, but is void as a penalty and because Acme presented no evidence of actual damages.

Paragraph 9 does not specify damages due for breach of the parties’ agreement. It provides a means by which Breeden could voluntarily terminate the contractual relationship before the end of the two year term. Breeden did not breach the Contract by terminating Acme’s service before the end of two years — the Contract gave Breeden the right to terminate early. However, this right to terminate was conditioned upon Breeden’s reimbursing Acme for the uniforms Acme had purchased for Breeden. Breeden failed to meet one of the conditions for early termination. Acme was entitled to recover an amount Breeden contracted to pay if Breeden did in fact elect to terminate prior to the end of the full two year term.

We hold Paragraph 9 is enforceable as a valid contract which afforded the customer Breeden the valuable right to early termination conditioned upon Breeden’s purchase of the uniforms.

If we were to assume Paragraph 9 is a liquidated damages clause, it is still valid. A contractual stipulation for payment of a designated sum upon default will be sustained as liquidated damages where it appears the damages will be uncertain and difficult to ascertain. See Foran v. Wisconsin and Arkansas Lumber Co., 156 Ark. 346 (1923). Acme’s witness testified it would be impossible to calculate actual damages were it not for Paragraph 9. The Contract was for a two year period. It required Acme to supply uniforms not only to the employees initially listed on the Contract but also to all of Breeden’s new employees subsequently added to the service. Breeden had a continuous turnover in employees and during the one year period of the Contract twenty-seven (27) new employees were added at one time or another. Even if we don’t consider Acme’s overhead and lost profits, clearly the fluctuation in the number of employees covered by the service contract would make ascertainment of damages difficult. We find the Contract in question is a suitable one for stipulation of damages.

Once we determine the stipulation is suitable we must decide whether the amount stipulated is reasonable under the circumstances. The Contract provided only those uniforms being provided at the time of termination must be purchased. At the time of termination Acme was providing eleven men with shirts. During the one year term Acme had supplied twenty-seven different employees. The number specified is reasonable. Rather than seeking reimbursement for all uniforms which had ever been placed in service or trying to estimate the number which would be provided during the remaking twelve months, the actual number at time of termination is specified. We find this to be reasonable.

The figures in Paragraph 9 represent the average cost of each garment. This is perhaps the only practical measurement of the value of each garment. An average cost eliminates the necessity of an individual evaluation of the uniforms which would be a very difficult task. We hold such a measurement to be reasonable.

Acme’s witness testified that at no time in the two year contracts would his company make more money if the customer cancelled and bought the uniforms at the prices specified in Paragraph 9 than the company would make if the customer completed the term of the Contract. He further testified Acme’s profits are realized by establishing and maintaining a long-term, continuous relationship with the customer rather than instituting a service and then selling the customer the uniforms.

We find the Trial Court did not err in overruling Breeden’s Motion for Directed Verdict. We therefore affirm the Jury Verdict and the Judgment entered thereon in favor of Acme.

Acme has asked for reasonable attorneys’ fees and printing costs incurred in its preparation of a Supplemental Abstract as authorized by Rule 9(e)(1) of the Rules of the Supreme Court and the Court of Appeals. Although the abstract of Mr. Freeman’s testimony is not as detailed as it might be, we do not find we were prevented from adequately reviewing and considering the appeal upon its merits. We have encouraged counsel to avoid surplusage. In the case at hand we find the appellant’s brief is a result of Breeden’s counsel striving to include only that portion of lengthy testimony considered pertinent and necessary to the resolution of this appeal. Therefore we deny Appellee’s request for costs and fee for preparation of the Supplemental Abstract. affirmed.

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

Ernie E. Wright, Chief Judge,

dissenting. I disagree with the majority in affirming this case.

Although paragraph 9 of the uniform rental and laundry contract purports to obligate the appellant to purchase the uniforms supplied by appellee under the contract, in essence paragraph 9 of the form contract supplied by appellee attempts to provide for liquidated damages should appellant terminate the contract prior to the end of the two year term. It is clear from the contract and the evidence appellee is in the business of renting and providing laundry service for employees of business establishments, and is not in the business of selling merchandise. The only witness for appellee characterized the amount sued for as damages. The issue to be determined on appeal is whether paragraph 9 of the contract, which is set out in the majority opinion, is a valid and enforceable provision for liquidated damages or in the nature of a penalty as contended by appellant, if it is the latter, the court erred in failing to direct a verdict for appellant.

Appellant concedes parties to a contract may stipulate in advance a sum to be paid for loss resulting from a breach of a contract and that such provision is enforceable unless it constitutes a penalty, in which event it is unenforceable.

The clause in issue requires appellant to purchase the garments it was using pursuant to the contract at the time of cancellation for the same price regardless of whether the rental contract was cancelled at the end of one month or at the end of 23 months. If the contract were cancelled with only one month of the contract left, the appellee would under the garment purchase clause be entitled to considerably more money that it would have received in rentals if the contract ran its full term. In Montague v. Robinson, 122 Ark. 163, 182 S.W. 558 (1916), it was held that the contract will be construed as stipulating for a penalty, when it is agreed the same damages would be recoverable when the contract is only substantially performed as would be recoverable in the event of total failure of performance.

The evidence shows appellee sets its rental-laundry charges to compensate for its services and recoup its uniform investment costs over a two year period. The average uniform life is considered to be three years.

The evidence is undisputed the uniforms supplied appellee were in part new and in part used, taken from the large stock of garments appellee keeps on hand in the course of its business.

The provision in question was not related to the actual damage appellee may have sustained, if any, by early cancellation. It would require appellant to purchase the uniforms at the same price whether the contract had been cancelled at the end of one month or at the end of twenty-three months. There is no indication it was the desire or intention of appellant to contract to purchase uniforms. All the evidence and circumstances indicate the purpose of the contract on the part of appellant was to secure a useful service, and the purpose of the appellee was to sell its service at a profit. It appears the garment purchase clause was inserted in the contract by the appellee for the purpose of imposing an obligation in the way of a penalty upon the appellee if it should terminate the contract before the expiration of the term, and that the amount the clause would require appellant to pay under such circumstances has no relation to any actual damages appelle might suffer because of the early contract termination.

If the clause in question had provided upon cancellation Tor payment of a pro-rata part of the stipulated garment price based on the length of time the contract should be in force at the time of cancellation, the provision might well have been a valid stipulation for liquidated damages. •

No evidence of actual damages sustained by appellee as a result of early termination was offered.

In 'my view the court errec failing to construe the contract clause in issue as a penalty provision and in failing to direct a verdict for appellant absent proof of any actual damages.

I would also point out the evidence is undisputed appellee first breached the contract in adding to its charges to appellant amounts up to $14.10 per invoice for “Pollution Control Charge.” The contract authorized no such extra charge. Also, I am unable to reconcile the number of shirts, 169, and the number of pants, 158, for which appellee sought payment with the number of garments specified in the contract or with the fourteen or fifteen employees of appellee who were being supplied with uniforms at termination of the contract.

Appellee’s complaint and testimony dealt with the total number of garments it claimed to be furnishing appellant at the time of the termination of the contract rather than the specific uniforms provided pursuant to the contract sued upon. It is undisputed appellee was already supplying appellant with uniforms and laundry service prior to the date of the contract in evidence providing for some 28 additional uniforms and the suit is based on the one contract in evidence. Appellee offered no evidence attempting to separate the uniforms actually furnished under the contract sued upon from the uniforms it continued to furnish under the previously existing arrangement. The jury would have to speculate in arriving at an amount even if the contract provision in question were deemed a valid liquidated damage provision.

I would reverse.

Newbern, J., joins in this dissent.


author: George Howard, Jr., Judge. David Newbern, Judge,

text:
    Paul E. THOMPSON v. W. D. VANLANDINGHAM
    CA 79-328
    600 S.W. 2d 923
    Court of Appeals of Arkansas
    Opinion delivered June 25, 1980
    Released for publication July 8, 1980

      Sam Ed Gibson, P.A., for appellant.

      'William W. Benton, for appellee.
   George Howard, Jr., Judge.

The sole issue to be determined is whether the judgment of the court, sitting without a jury, awarding appellee $913.77 for damages sustained to his 1969 Opel Kadette as a consequence of a collision involving a vehicle driven by the appellant, is supported by substantial evidence.

It is settled law that an appellate court in testing the sufficiency of the evidence must consider the evidence in the light most favorable to the appellee, and all doubts are to be resolved and inferences drawn in his favor. Industrial Park Businessmen’s Club, Inc. et al v. Buck, 252 Ark. 513, 479 S.W. 2d 842.

The appellee, who was the owner of the Opel Kadette and who is an automotive mechanic engaged in the repair business, testified extensively about the condition of his vehicle before the accident as well as after and concluded that it would cost between $900.00 and $1,000.00 to repair the damages sustained to the automobile and that the cost represented the difference in the value before and after the accident. It is clear that an owner’s testimony as to the value of his property is admissible. Payne v. Mosley, 204 Ark. 510, 162 S.W. 2d 889; Missouri Pac. R. Co. v. Chase, 180 Ark. 857, 23 S.W. 2d 256; Missouri Pac. R. Co. v. Edwards, 178 Ark. 732, 14 S.W. 2d 230.

We hold that there is substantial evidence to sustain the holding of the trial court and, accordingly, we affirm.

Affirmed.

Newbern, J., concurs.

David Newbern, Judge,

concurring. Although I agree with the result and the basis for it stated by the majority, I believe the appellant’s points for reversal should be addressed.

The appellant contends the trial court erred in admitting into evidence a repair estimate of $913.77 (the amount of the judgment) which the appellee had obtained from Billington Buick, Inc. The appellee contended it was admissible because of Ark. Stat. Ann. § 28-1001, Rule 703 (Repl. 1979). The rule states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the heaing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

While Rule 703 permits an expert to base his opinion upon “facts or data,” it does not permit him to present another expert’s opinion, which is what occurred here. Thus, I agree with the appellant that the trial judge erred in allowing the appellant to submit the Billington estimate with his testimony. However, I find the error was harmless.

The appellant’s second point for reversal is. that the court erred in basing its decision upon the improperly admitted evidence. In his findings, the court referred to the Billington estimate as the “best evidence’of the measure of damages. Regardless of the court’s apparent reliance upon the erroneously admitted evidence, I cannot say the lower court’s judgment was clearly erroneous or clearly against the preponderance of the evidence, A. R. Civ. P., 52 (a), given the appellant’s own testimony to which the majority opinion refers.


author: David Newbern, Judge.

text:
    Wendel E. GRUBB v. Joe CLOVEN
    CA 80-71
    601 S.W. 2d 244
    Court of Appeals of Arkansas
    Opinion delivered June 25, 1980
    Released for publication July 8, 1980

      Jerry D. Pruitt for appellant.

      Stephen A. White for appellee.
   David Newbern, Judge.

The question presented here is whether there is sufficient evidence to support a finding by the court sitting without a jury that the appellant was liable, individually, to the appellee for breach of a construction contract. The appellant claims he is not a proper party to the litigation and that a corporation of which he was a principal stockholder should have been the defendant. We hold the finding that the contract was made by the defendant individually and not on behalf of the corporation is not clearly erroneous or clearly against the preponderance of the evidence. See,A.R. Civ. P., 52(a).

The appellant and David Fitzgerald were partners in a construction business. Prior to the time they incorporated their business, and presumably dissolved their partnership, they discussed a construction project with the appellee. No contract was entered, however, until after the appellant and Fitzgerald incorporated their business as the “Double Cousins Company.” Fitzgerald was initially a defendant in this breach of contract suit. The suit against him, however, was settled, leaving the appellant as the only defendant. The parties stipulated that there had been a breach of contract, without saying who was responsible, and they stipulated the amount of damages for which the appellant would be liable if it was determined that he, individually, was responsible for the breach.

On March 16, 1978, the appellant and Fitzgerald entered into an agreement with the appellee. The agreement was in writing, in the form of an altered “offer and acceptance” which was obviously intended for use by a real estate agency. The agreement opened as follows:

To Double Cousins Company, Agent. 1. The undersigned, herein called the Buyer, offers to buy, subject to the terms set forth herein, the following property:

Then follows a blank space in which had been written by hand:

House on Buyer’s lot according to Plan 5392-R of Architect’s York & Shenke of New York.

Remaining handwritten insertions in the contract provided for price, manner of payment, and “allowances” for items to be purchased by the buyer and included in the house. All of the printed standard clauses which would have related to a real estate transaction were crossed out, and the letters “N/A” were placed in several of the contract blanks such as the one providing for the agent’s fee. The contract is signed by the appellant and Fitzgerald, each of whom is identified only as “Seller,” and by the appellee who is identified as “Buyer.”

The appellant and the appellee have given us entirely different characterizations of the issue in this case. The appellant would have us decide it on the theory that the appellee had at least constructive notice that the appellant and Fitzgerald were dealing on behalf of their corporation, and thus were not dealing as individuals. The appellee makes the point that even stockholders in corporations may deal individually in business which might normally be dealt in by the corporations in which they are stockholders, and that the mere fact that they are stockholders in a corporation does not prevent them from dealing as individuals.

When we look to the judgment entered by the lower court, we find one of the paragraphs stating the court’s finding to be as follows:

4. That the contract with plaintiff, which is the subject matter of the litigation, was entered into by Defendant, Wendell E. Grubb, as an individual, and that said contract was not between the plaintiff and any corporate entity.

We have only to look at the face of the contract to see substantial evidence to support that crucial finding. The contract refers to the Double Cousins Company only as “Agent.” The appellant and Fitzgerald signed their names as “Seller,” respectively, and did not purport to represent any one other than themselves.

The following statement was made by the U.S. Court of Appeals for the 8th Circuit in affirming a decision by then District Judge Henley in a complicated, multiparty suit in which the question was whether a corporation or its major stockholder or both of them were liable on a contract:

The resolution of whether . . . contracts existed among or between any of the parties to the litigation, the construction or interpretation of any such . . . agreements and ascertainment of damages . . . constitute issues of fact. [Emphasis added. Shamburger v. Moody, et al., 437 F.2d 1358 (CA 8, Ark. 1971), at p. 1359.]

Although the facts before us are not nearly as complex as in Shamburger, the principle is the same. See also, Warren Co. v. Neel, 284 F. Supp. 203 (W.D. Ark. 1968), aff'd as Kimbell Milling v. Warren Co., 406 F. 2d 775 (CA8, Ark. 1968), where the result differed but the question was again deemed one of fact.

The appellant has simply misconceived the issue as being whether there was constructive notice that these “Sellers” were operating as a corporation. He cites cases such as Gazette Publishing Co. v. Brady, 204 Ark. 396, 162 S.W.2d 494 (1942) and Herring v. Mishawaka Rubber & Woolen Mfg. Co., 192 Ark. 1055, 95 S.W. 2d 1141 (1935), which deals with questions arising out of transactions where the questions of corporate entity and notice were important. Perhaps had there been an oral agreement in this case, the point addressed by the appellant would have been decisive. However, as stated above, the written agreement before us makes it substantially evident that the appellant and Fitzgerald purported to be dealing as individuals and not as representatives of a corporation.

Affirmed.


text:
    Carver Ray HOLDEN v. Ola B. HOLDEN
    CA 80-73
    601 S.W. 2d 247
    Court of Appeals of Arkansas
    Opinion delivered June 25, 1980
    Released for publication July 8, 1980

      Stuart Vess, for appellant.

      Paul Petty, for appellee.
   David Newbern, Judge.

The appellant would have us characterize the main issue in this case as being whether there was condonation by the appellee of the appellee’s ground for divorce which was general indignities. We see the issue, however, as being whether this was an uncontested proceeding in view of the withdrawal of the appellant’s amended answer to the appellee’s complaint and the appellant’s agreement that the divorce be taken uncontested. Because we hold that the divorce was uncontested we need not decide whether the condonation initially alleged by the appellant had any effect.

In response to the appellee’s complaint for divorce alleging general indignities, the appellant filed a general denial. He later asserted the condonation defense based upon what he testified to have been a two-day reconciliation which occurred after the suit was filed and before his amended answer was filed. Discovery ensued, and the appellee asked the court for an order for temporary support. The hearing was held June 4, 1979, during which the parties testified with respect to their property and the appellee’s need for temporary support. It was during this hearing that the appellant testified the appellee had returned to their home after the suit was filed. The appellee testified she had been in the home but denied that sexual intercourse or reconciliation of any sort had occurred. Because of uncertainty in the law which existed at that time, the chancellor declined to award the appellee temporary alimony, but did address the need for restraint upon the parties in the manner in which they might deal with possession of their home and the continued operation of their family farm.

The parties appeared at a hearing July 16, 1979, at which the appellant’s attorney requested permission to withdraw the general denial. On behalf of the appellant, the appellant’s attorney also outlined an agreement the parties had reached with respect to division of their property. The appellant’s attorney made it clear that no claim was being made to any property the appellee had inherited. It was very clear that the appellant had, at that point, chosen not to contest the taking of the divorce, and after the appellee’s attorney indicated his concurrence in the proposed agreement, as it had been stated by counsel for the appellant, the court, addressing the appelle’s attorney, said:

You will present your testimony on that and the answer will be withdrawn?
MR. PETTY [appellee’s attorney]: That’s right.
MR. DISHONGH [appellant’s attorney]: Yes, sir.

The court then took testimony of the appellee and two other witnesses, at least one of whom corroborated the fact that the appellee had been a resident of White County for over 90 days. The court then instructed the appellee’s counsel to prepare the decree and submit it to the court whereupon the divorce would be final.

A hearing was held September 17, 1979, some five days before the final decree was entered, for the purpose of determining whether the appellant was in contempt for having failed to abide by the temporary order previously entered by the court. At this hearing, the appellant was represented by an attorney who had not represented him previously. The testimony of the appellant was to the effect that he had not understood the agreement would deprive him of his “share” of the appellee’s inherited property, and that he felt this was unfair as she had promised him joint ownership of it. In the course of the hearing, the appellant’s new lawyer (the fourth employed by him in the course of this litigation) moved that the appellant’s general denial be reinstated. The court denied the motion.

The appellant contends the court should have dismissed the suit because of the “cohabitation of the parties while suit was pending.” While it is true there was evidence taken in the temporary support hearing with respect to a short period of time the appellee spent in the parties’ home after the suit was filed, that evidence became irrelevant when the appellant withdrew his answer and declined to contest the divorce.

The appellant’s second point is that the court erred in not reinstating the general denial during the hearing which was held to determine whether he had complied with the temporary decree. The appellant cites no authority in support of this point, and thus we need not consider it as it is not obviously or apparently correct. Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). To the contrary, we find no patent error in the court’s refusal to reinstate a general denial in the course of a hearing which is not held to address the merits of the case. Additionally, reinstatement of the general denial would not have had the effect of reinstating the defense of condonation which was withdrawn when the answer was withdrawn.


author: Ernie E. Wright, Chief Judge.

text:
    CITY OF BENTON v. James L. POWERS
    CA 80-86
    601 S.W. 2d 260
    Court of Appeals of Arkansas
    Opinion delivered July 2, 1980
    Released for publication July 8, 1980

      Curtis C. Rickard, for appellant.

      Red Boswell, for appellee.
   Ernie E. Wright, Chief Judge.

This is an appeal from a judgment in favor of the appellee pursuant to a directed verdict denying recovery of monies the city claims were paid to appellee without proper authority upon appellee’s retirement.

On May 1, 1978, the appellee James L. Powers retired as general manager of the municipal utilities of the City of Benton after some thirty years service as a municipal employee. He was paid benefits out of city utility funds upon retirement in the amount of $19,353.04, the net amount received by him after withholdings for taxes being $16,235.91. The payment was for sick leave accumulated during appellee’s tenure with the city. The basis for the payment was a two year contract entered into on September 23, 1977, between the Board of Commissioners of the Benton Municipal Utilities, which had operated the utilities for over fifty years, and the local unit of the American Federation of State, County and Municipal Employees, together with supplementary contract. The contract provided that any employee, except the management employees, upon being separated from the service would be compensated in cash for unused vacation and sick leave time accumulated, and the pay rate would be the rate in effect on the day immediately preceding the day of separation from the service.

On the day following the date of the contract, the Board of Commissioners wrote appellee a letter stating it was the intention of the Board to apply the union contract vacation pay and sick leave benefits provided by the union contract to all personnel of the department whether or not they were members of the union, and directed him to be governed accordingly.

On August 12, 1977, prior to the execution of the contract, the Board of Commissioners sued the city Board of Directors challenging certain actions of the city Board in establishing sewer rates. The Board of Commissioners was established more than fifty years ago pursuant to a 1921 local legislative act. On August 15, 1977, the city Board authorized the filing of a counterclaim to determine whether the Board of Commissioners or the city Board of Directors had legal authority over the operation of the municipal utilities. On August 16, 1977, the city Board passed an ordinance with an emergency clause reciting that the management and operation of the electric, water and sewer utilities of the city was divested from the Board of Commissioners and vested in the City of Benton. However, the Board of Commissioners continued to operate the utilities by agreement on behalf of the parties through their respective attorneys pending final adjudication of the controversy by the chancery court.

On November 10, 1977, the chancery court upheld the validity of the ordinance transferring control of the city utilities to the Board of Directors of the city, and held the transfer of authority did not impair existing contracts. After entry of the written precedent of the judgment on January 17, 1978, the city Board of Directors enacted an ordinance abolishing the Board of Commissioners for city utilities effective immediately. Thereafter, the appellee continued in his capacity as general manager of the city utilities.

After formal entry of the chancery court judgment on January 17, 1978, five employees of the city utilities were separated from their employment and received their accumulated sick leave. The appellee retired as general manager of the city utilities on May 1, 1978, and was paid sick leave benefits in keeping with the contract and supplemental letter. Between May 3, 1978 and June 2, 1978, three additional employees left their employment with the city utilities and were paid their accumulated sick leave pay, and after the Board of Directors took over management of utilities the city continued to observe the union contract in utility operations.

On June 18, 1980, the city brought suit in the circuit court against the appellee Powers to recover the sick leave benefits paid to him. The city alleged the union contract was invalid; that it was not entered into with the permission or approval of the city; the city had not accepted the agreement; and in any event the city utilities management personnel were not entitled to benefits under the agreement.

The appellee answered the complaint asserting the validity of the union contract and that the letter of September 24, 1977 from the Board of Commissioners was a memorandum of a separate agreement with appellee and others. The answer further alleged the actions of the Board of Commissioners were taken with the full knowledge of the city, its servants and employee's; that the city was estopped from disclaiming the agreement; that the city had ratified the action of the board of commissioners; and had agreed to and had in fact assumed the obligations to appellee separate and apart from the union contract by agreeing to pay the accumulated sick leave and vacation pay. Appellee further alleged the payment to him was pursuant to management policy of the city established by the Board of Commissioners and assumed and carried out by the city. At the close of appellant’s evidence the appellee moved for a directed verdict which was granted, and contends only the trial court erred in directing the verdict.

In directing the verdict the court noted that in the litigation between the Board of Commissioners and the city the chancery court had specifically ruled that contracts entered into by the Board of Commissioners prior to November 10, 1977, were not impaired and were fully binding on the city. The trial court further held the city had failed to submit any substantial evidence in support of its claim to recover the monies paid to the appellee warranting the submission of the issue to the jury; that the city was estopped from denying the contract; and the city had ratified the contract.

The evidence discloses no temporary order was obtained by the city to prevent the Board of Commissioners from continuing to manage the utilities and the Commissioners did in fact manage the operations, with the knowledge of the Board of Directors, until after the chancery court decision on November 10, 1977.

As of June 20, 1978, the records reflect the utility department had paid to six retired or resigned employees an aggregate amount of $57,662.34, for unused vacation and sick leave time since March 15, 1978, pursuant to the contract or policy established by the Board of Commissioners on September 23 and 24, 1977. The city has not repudiated any contractual obligations incurred by the Board of Commissioners, but does attempt to repudiate its obligations to pay the appellee the benefits here in issue.

After the chancery court ruling on November 10, 1977, the city was aware the Board of Directors had authority over management of the utilities, but complete transfer of operating functions was not fully accomplished until the passage of the ordinance on July 17, 1978, abolishing the Board of Commissioners.

On February 6, 1979, the Board of Directors passed a resolution calling for the posting of a public notice advising persons having contracts with the Board of Commissioners prior to August, 1977, to notify the city of such within 60 days, or the contracts and agreements would be deemed null and void. The “null and void” provision was later deleted by a supplemental resolution. At the February 6 meeting a motion was passed directing the city attorney to take legal action to recover sick pay benefits from certain retired or resigned employees, thereby giving rise to the present suit. No suit was filed against any separated employee other than the appellee.

In reviewing the actions of the trial court in directing a verdict for the appellee and against the city, the appellant’s brief correctly states the rule that we are to view the evidence in the light most favorable to appellant, and if there is any substantial evidence in the record from which the jury could have found in favor of appellant, the granting of a directed verdict would be error.

Appellant bases its contention for reversal on the validity of the city ordinance enacted August 22, 1977, transferring authority over the city utilities from the Board of Commissioners to the City Board of Directors. The chancery court ruled on November 10, 1977, that the ordinance was valid and operated to vest the authority over the city utilities in the Board of Directors.

However, since the Board of Directors failed to assume actual management of the utilities upon -passage of the ordinance, but on the contrary through its attorneys in the law suit consented to management of the utilities by the Board of Commissioners, we conclude the Board of Commissioners was the agent or instrument of the Board of Directors, the governing body of the city, in the general management of the utilities. The city could exercise its authority over the utilities only through some agent, and the Board of Commissioners acted as the administrative arm of the Board of Directors until after the chancery court had ruled on the validity and effect of the city ordinance passed in August, 1977. The Board of Directors took no steps to limit or control the Board of Commissioners in the management of the utilities until after the court ruling on November 10, 1977.

There is no suggestion of any fraud on the part of the Board of Commissioners incident to the contract in question, and since the evidence is not conflicting and there is no substantial evidence to support the city’s claim to submit to the jury, the court did not err in directing a verdict for the appellee.

In Chalmers & Son v. Bowen, 112 Ark. 63, 164 S.W. 1131 (1914), it was held that where an agent is acting for his principal, he will be presumed to be a general agent, in the absence of notification to the contrary, and the burden is on the principal to show limitations as to the agent’s authority.

The city continued to operate the utilities under the union contract above mentioned after the dissolution of the Board of Commissioners and it thereby ratified the union contract, along with the supplementary agreement evidenced by the Board of Commissioners’ letter extending sick pay benefits under the contract to all utility employees, and the law recognizes that a city may ratify a contract that is within its powers to make, even though the contract in its inception may not have been entered into in strict keeping with statutory requirements. Although under the terms of the contract the. city could have terminated the agreement at the end of two years from the date of the agreement by giving sixty days notice in advance, and the initial two year term of the contract had expired at time of trial, there is no indication the city terminated the contract. The comprehensive contract contained numerous provisions that can be fairly said to be beneficial to the city in the orderly operation of the utilities and in accepting those benefits the city ratified the contract. City of Harrison v. Boone County, 238 Ark. 113, 378 S.W. 2d 665 (1964); Day v. City of Malvern, 195 Ark. 804, 114 S.W. 2d 459 (1938); Forrest City v. Orgill, 87 Ark. 389, 112 S.W. 891 (1908).

In L. C. Eddy, Inc. v. City of Arkadelphia, 303 F. 2d 473 (1962), the court held the city, after accepting performance and enjoying benefits under a contract executed by its agent, could not avoid liability on the ground the contract was not authorized by resolution in writing approved by majority vote of the city council as required by Ark. Stat. Ann. § 19-2311 (Repl. 1980).

In 56 Am. Jur. 2d, Municipal Corporations, § 517, the general rule applicable to recovery of funds paid under an invalid contract is stated as follows:

Where a county, municipality, or other political subdivision has accepted the benefits of an invalid contract under which public funds have been paid out, retains such benefits, and neglects or refuses to make any restitution thereof, or where the circumstances are such that a restoration of the benefits received would be impossible, there is a strong tendency among the courts to take the view that the funds paid may not be recovered back by the municipality.

Obviously the city could not restore the variety of benefits flowing to it out of the comprehensive union contract, and it should not be permitted to accept and utilize the contract and reject parts of the agreement.

The 1 mayor who was also a member of the Board of Directors testified he was aware of the union contract covering the utility employees, but he had not familiarized himself with it prior to June, 1978, although the records of the Board of Commissioners were available to the city prior to November 10, 1977.

The evidence of actions of the city constituting ratification of the contract is clear and there is no substantial evidence to the contrary. The appellee continued to work for the city several months after the chancery court had ruled the utilities were under the control of the Board of Directors, the union contract was being utilized and the city paid appellee sick leave benefits in keeping with the provisions of the union contract pursuant to the supplemental letter stating nonunion employees would receive the contract benefits on the same terms as the union members. The check to appellee was signed by the office manager and by the assistant office manager of the utility department. At that time these officers were and had long been under the control of the Board of Directors.

Under the circumstances shown by the undisputed evidence we conclude the trial court did not err in directing a verdict in favor, of the appellee denying recovery of benefits paid to appellee. Although the contract in question may well have been invalid at the time it was made for lack of specific authorization from the governing body of the city, the city by its actions ratified the contract and accepted the benefits thereunder. If the contract were ultra vires ratification might well not be applicable, but there is no suggestion the contract is outside the scope of the powers of the city.

We would point out this opinion is not to be construed as prohibiting the city from cancelling the contract by giving sixty days written notice prior to the end of any two year term of the contract, as specifically provided in the contract, so long as rights of employees already vested at the time of cancellation are preserved.

Affirmed.


author: Steele Hays, Judge.

text:
    H. L. PIRTLE v. OPCO, INC.
    CA 80-62
    601 S.W. 2d 265
    Court of Appeals of Arkansas
    Opinion delivered July 2, 1980
    Released for publication July 8, 1980

      Howell & Price, by: Merl Barns, for appellant.

      Owens, McHaney & Calhoun, by: James Maurice Rogers, for appellee.
   Steele Hays, Judge.

This is a case involving the waters over the property of adjoining landowners. Appellant, Mr. H. L. Pirtle, owned property to the west of appellee, Opeo, Inc. Surface waters flowed downward in a southwesterly direction across. appellee’s property and then on to appellant’s property. This drainage caused much of the water to back up on appellant’s property, thereby creating a “wash” and making the land unfit to growing crops.

Appellant purchased his property in 1971. He had initially used the property for grazing purposes. During this time, the large amounts of water coming on to his property were not an insurmountable problem. Also, prior to 1977, he had planted the property in fescue and soybeans. In 1977, he planted the property in rice. He decided on this course of action after he had sold his cattle and realized it would be more profitable to grow rice on his property. Appellant testified that, at the time, he approached an employee of appellee’s, Mr. Graham Mullen, about constructing a ditch at their joint expense on their boundary line to diminish the water problem. Appellant testified that Mr. Mullen ignored him. To the contrary, Mr. Mullen testified that appellant never discussed the water problem with him.

Nevertheless, a year later, appellant built a roadway across the mutual boundary to a well on the other side of the property. He testified that this was necessary in order for him to have access to the well. The roadway was elevated approximately three and one-half feet above ground level and therefore, served a joint purpose since it also kept much of the surface water from coming on to appellant’s property.

Appellee then filed this law suit, alleging that appellant had unlawfully constructed a dam which obstructed the natural flow of surface water. This “dam” caused flooding on appellant’s property, thereby making it unfit for natural use. The chancellor entered a decree in favor of appellee, ordering the appellant to remove the “dam” in such a way as to restore the natural drainage of the surface waters from appellee’s property. From the chancellor’s decree, appellant brings this appeal.

Appellant’s first point for reversal is that the chancellor’s finding was against a preponderance of the evidence.

The rule in Arkansas as to surface water is that a landowner has the right to prevent surface water from coming on to his own property, as long as he does not unnecessarily damage his neighbor. Smith v. Cruthis, 255 Ark. 217, 499 S.W. 2d 852 (1973); Solomon v. Congleton, 245 Ark. 487, 432 S.W. 2d 865 (1968). This is, in essence, a modified version of the common law doctrine which gives the landowner the absolute right to fend off surface waters, even at the expense of damaging an adjoining landowner’s property. At common law, surface waters were deemed to be a common enemy to all landowners and a landowner had the right to divert its course, and could even throw it back upon his neighbor from whose land it came. Arkansas first adopted its version of the common law doctrine in the case of Little Rock and Fort Smith Railway Company v. Chapman, 39 Ark. 463 (1883). It modified the rule to the extent that the right to fend off surface waters is not absolute, but the right must be exercised with due care so as not to inflict injury on a neighboring landowner “beyond what may be fairly necessary.”

Under the rule as stated, we can not say that the chancellor’s decision was against a preponderance of the evidence. Appellant built the roadway knowing what effect it would have on appellee’s property. During cross-examination, he stated that he was not concerned about what effect the elevated roadway would have on his neighbor and that he understood it might cause a small pond on appellee’s property. He attempted to rationalize this by stating, “I got one on my sidé, too.” Appellant takes the position that it was not his water and therefore not his problem. However, as stated earlier, surface waters are a common enemy to all landowners. Each landowner can prevent surface water from coming on to his own property as long as he does not unnecessarily damage a neighboring landowner’s property. Smith v. Cruthis, supra. In this case, the evidence supports the decision of the chancellor that appellant went beyond what would be considered fairly necessary in preventing surface waters from coming on to his property. Other alternatives were open to him such as building a ditch or building the roadway but allowing for drainage of the surface waters off of appellee’s property. Hence, we find that the chancellor’s findings are not clearly against a preponderance of the evidence and accordingly must affirm his decision on appeal. Hackworth v. First National Bank of Crossett, 265 Ark. 668, 580 S.W. 2d 465 (1979); Massey v. Price, 252 Ark. 617, 480 S.W. 2d 337 (1972).

Appellant argues one other point: that the court erred in failing to balance the hardships of the two parties. In essence, appellant argues that appellee had a duty to mitigate its damages by expending the amount necessary to alleviate the damage and that the remedy of injunctive relief was too extreme in that appellee would be required to remove his roadway. We think that appellant is reading something into the decree that is not there. Appellant is merely required to remove the dam in such a way as to provide for the natural flow of surface waters off of appellee’s property. Charles Summerford, a professional engineer and land surveyor, testified that appellant could still build a ditch to alleviate the water problem which would not be too costly. As we read the decree, this alternative would still be open to appellant, as long as it retains the natural flow of surface waters off of appellee’s property. Also, we do not believe appellee is required to mitigate his damages by building a ditch oh his own property. Thé drainage problem on appellee’s property was caused by the construction of the elevated roadway. Injunctive relief was the correct remedy in this case. Morrow v. Merrick, 157 Ark. 618, 249 S.W. 2d 369 (1923).

Therefore, the decree of the chancellor is affirmed.


text:
    Danny L. STEWART v. COSBY-PARSONS QUARTER HORSE RANCH
    CA 80-103
    601 S.W. 2d 590
    Court of Appeals of Arkansas
    Opinion delivered July 2, 1980
    Released for publication July 8, 1980

      Charles E. Hanks and Wyman R. Wade, Jr., by: Charles E. Hanks, for appellant.

      Blair, Cypert, Waters & Roy, for appellee.
   Steele Hays, Judge.

This is a workers’ compensation case. Claimant, Danny L. Stewart, sustained an injury while employed by appellee and claims benefits under the Workers’ Compensation Act.

A hearing was held before the Administrative Law Judge on June 21, 1979. The Administrative Law Judge determined, among other things, that a preponderance of the evidence indicated that appellee, Cosby-Parsons Quarter Horse Ranch, did not regularly employ three or more persons within the meaning of Ark. Stat. Ann. § 81-1302(c)(1) (Repl. 1976). The Full Commission upheld this determination by the Administrative Law Judge. Claimant brings this appeal from the decision of the commission.

His first point for reversal is that the commission’s determination that there were less than three persons regularly employed by appellee at the time of appellant’s injury is not supported by the evidence. Relying on the cases of Crouch Funeral Home, Inc. v. Crouch, 262 Ark. 417, 557 S.W. 2d 392 (1977) and Brooks, Inc. v. Claywell, 215 Ark. 913, 224 S.W. 2d 37 (1949), appellant alleges that an improper legal standard was used by the Administrative Law Judge and the Full Commission to reach the conclusion that there were less than three persons employed by appellee at the time of appellant’s injury. We agree with appellant to the extent that the test in Brooks, supra, as to whether an injured employee was to receive benefits under Workers’ Compensation Act was not his title but the nature and quality of the act at the time of the injury. Crouch, supra, supports the rule of law that when a claimant is injured while performing a service for a family member, the family relationship can not be ignored and it may be viewed as a personal service unrelated to the claimant’s employment. If so, then claimant would be denied Workers’ Compensation benefits.

In the instant case, we are concerned with the question of what persons should be considered employees to meet the requisite number of employees in order to come under the Workers’ Compensation Act. There is no dispute that appellant was injured while working under the employment of appellee. On appeal, appellant contends that Sue Cosby, a wife of one of the partners, should be considered an employee within the meaning of Ark. Stat. Ann. § 81-1302(c)(l). We believe that a different standard should be appied to this question other than the standard in Crouch, supra or Brooks, supra. The determinative factor in ascertaining the requisite number of employees under Ark. Stat. Ann. § 81-1302(c)(1) is whether three persons are regularly employed in the same business. Wallace v. Wells, 221 Ark. 750, 255 S.W. 2d 970 (1953). See also Donaldson v. Socia, 254 Ark. 158, 492 S.W. 2d 253 (1973); Aerial Crop Care, Inc. v. Landry, 235 Ark. 406, 360 S.W. 2d 185 (1962). Larson’s, Workimen’s Compensation Law § 52 (1979) states:

Under numerical-minimum exemption statutes, the controlling number of employees is determined in the light of the employer’s established mode or plan in the operation of his business. If he regularly employs the requisite number, he remains covered although the number employed falls temporarily below the minimum. Ordinarily only such employees as would themselves be subject to the act are included in the count. Details of interpretation should be controlled by the underlying purpose of the exemption, which is to avoid administrative inconvenience to very small employers.

Mrs. Cosby did, in fact, perform substantial services for appellee. She kept the books, hired new persons, cleaned the stalls, wrote out employee paychecks and paid some of the ranch bills. Nevertheless, the commission found that these duties were performed out of a sense of familial responsibility. There is no evidence in the record that she ever paid for her services or that she was working under a contract of employment. The question of the minimum number of employees in order to qualify appellee as an employer under the Workers’ Compensation Act is a factual question for the commission and can not be disturbed on appeal unless unsupported by substantial evidence. Donaldson v. Socia, supra; Wallace v. Wells, supra.

In a Florida case with a very similar factual situation, Subterranean Circus v. Lewis, 319 S. 2d 600 (Fla. App. 1975), the Court of Appeals reversed a holding by the trial court that an employer had the requisite number of three employees to bring it under Workers’ Compensation Law. A wife of one of the managers had written checks, jkept payroll records, and worked at sales at the circus. The court reversed a finding that she was an employee, stating:

This testimony of the secretary-treasurer as to keeping payroll records and writing checks for the employees certainly, does not constitute proof of the elements of regularity, continuity and common employment of three or more persons required by the statute.

We believe that the facts in Subterranean Circus are very similar to the facts in this case. Here, however, the Commission reached the same result as the appellate court did in Subterranean Circus, and we find that there is substantial evidence to support the commission’s findnig that Sue Cosby was not an employee within the meaning of § 81-1302(c)(l).

Nor can we say that the commission’s determination that James Whitely was not regularly employed is unsupported by substantial evidence. James Whitely testified that he worked for Harold Parsons on his farm. His place of employment was not even near the quarter-horse ranch. Occasionally, he was called upon to do odd jobs on the ranch such as feeding and watering the horses, repairing fences, and hauling off trash. However, nowhere in the record can we find that James Whitely was under a contract of employment, either express or implied, to work on the quarter horse ranch. As the commission found, the fact that he was employed by Harold Parsons indirectly benefited the Cosby-Parsons Quarter Horse Ranch. But this doesn’t give him the status of an employee of the ranch when determining the requisite number of employees in order to come within the purview of the Workers’ Compensation Act. The issue is a factual determination for the commission which will not be disturbed on appeal if supported by substantial evidence. Wallace v. Wells, supra. Even if we could find that James Whitely was, in some way, employed by Cosby-Parsons Quarter Horse Ranch his employment would be too irregular and of insufficient duration to be considered an employee of the ranch. See Larson’s, Workers’ Compensation Law § 52.20 (1979).

Appellant also argues that appellee waived its exemption from coverage under the Workers’ Compensation Act. ÁppeÜant cites one case for this point: McGeehee Hatchery Company v. Gunter, 237 Ark. 448, 373 S.W. 2d 401 (1963). In McGeehee, the employer had actually obtained Workers’ Compensation insurance, and the Arkansas Supreme Court held that an employer could not refuse to pay benefits under the exemption after he had already secured a policy of insurance and filed it with the Workers’ Compensation Commission. This case is distinguishable in that there is no evidence that the employer ever obtained workers’ compensation insurance. Claimant merely testified that he was told that he was covered by Workers’ Compensation. This testimony was disputed by Mr. and Mrs. Cosby which presents a credibility issue. Credibility is a matter lying exclusively within the province of the Workers’ Compensation Commission. May v. Crompton-Arkansas Mills, 253 Ark. 1080, 490 S.W. 2d 794 (1973).

Appellee raises the issue that it comes under the agricultural farm labor exemption, but we need not discuss that issue since we find for appellee on the other points.

Affirmed.


author: James ' H. Pilkinton, Judge.

text:
    ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT v. MAGNOLIA LEASING CORPORATION, LOGICON, INC. and Arnold F. WATSON
    CA 80-74
    601 S.W. 2d 267
    Court of Appeals of Arkansas
    Opinion delivered July 2, 1980
    Released for publication July 8, 1980

      Thomas B. Keys and Ted Goodloe, for appellant.

      Coleman, Gantt, Ramsay & Cox, by: Martin C. Gilbert, for appellees.
   James ' H. Pilkinton, Judge.

The Arkansas State Highway Commission sued Magnolia Leasing Corporation, Logicon, Inc., and Arnold F. Watson for damages to a bridge on Interstate 30 over DeRoche Creek located near Malvern, Arkansas. Appelee' Watson was driving a tractor-trailer truck hauling fuel oil while employed by Logicon, Inc. The vehicle was owned by Magnolia Leasing Corporation. The tractor-trailer left the Interstate, climbed on the guardrail and collided with the bridge. It then traveled the length of the bridge guardrail, fell over the bridge, and burst into flames. The driver escaped uninjured but the tractor-trailer and the load of fuel were consumed in the fire. The Interstate 30 bridge, on the northbound side, was damaged by the burning fire underneath.

The Arkansas State Highway Commission sought damages in the amount of $172,054.59. The appellees denied any negligence in connection with the incident; and specifically denied the amount of damages claimed by the appellant should any negligence be found for which appellees were responsible. After two full days of trial, the jury returned its unanimous verdict for the appellees. A motion for new trial was filed by appellants claiming that the verdict was against the preponderance of the evidence. This appeal comes from the action of the trial court in refusing to grant a new trial on the alleged grounds that the verdict was contrary to the preponderance of the evidence.

There appears to be no disagreement that under Rule 59(a) of the Arkansas Rules of Civil Procedure the trial judge had the authority to set aside the jury verdict in favor of the defendants, and to order a new trial, if the trial court had found that the verdict was against the preponderance of the evidence. However, in this case, the trial court did not find the verdict of the jury to be against the preponderance of the evidence and, accordingly, it denied the motion for a new trial. The legal issue on appeal, therefore, is whether the trial court abused its discretion in allowing the jury verdict to stand.

Appellant has cited a number of cases in its brief; however, with one exception, all of the cases upon which appellant relies invokes appeals from a trial court’s action in the granting of a new trial. Most cases cited recognize the prevailing law as just stated. Twist v. Mullinix, 126 Ark. 427, 190 S.W. 851 (1916) is the sole citation of authority by appellant which involved the action of a trial court in denying a motion for a new trial. That case is clearly distinguishable from the case before us. In Twist the trial court had specifically found and declared that “in my judgment the finding upon the question involved was clearly against the preponderance of the evidence.” However, the trial judge in Twist refused to disturb the jury verdict merely because it was against the preponderance of the evidence. The trial judge in Twist clearly misapplied the law by refusing to set aside the verdict there even though he found it to be against the preponderance of the evidence; and the Supreme Court reversed. No such finding was made by the trial court in the present case, and hence no error of law was committed in denying the motion for a new trial.

Turning to the evidence in this case, the appellee Arnold F. Watson testified that he had slept during the previous, day and, to him, it was the middle of the day when the accident occurred in the early morning hours. He testified positively that he was having no difficulty keeping awake and that he was alert at the time of the accident. According to Mr. Watson’s testimony, as he approached the bridge in question, he changed from the right to the left lane of the Interstate because the right lane was more uneven. There was no other traffic and, according to the driver, he was in no hurry to turn over into the other lane. According to him, he switched from the right to the left lane because of the condition of the bridge surface. This particular bridge was wavy on the right side and Mr. Watson said, “You get the smooth ride in the left lane.” He stated that it was a common practice among truckers to change lanes for this reason not only for the personal comfort of the driver but also for the preservation and safety of the equipment. Mr. Watson testified that he had been using his Citizen’s Band radio, which he was accustomed to doing while driving, and that this too was a normal practice or custom among truck drivers. Mr. Watson testified that his use of the CB radio had nothing at all to do with the accident. According to the driver, as he neared the bridge the front left tire of the truck “straddled” the joint between the concrete portion of the left lane and the asphalt shoulder on the left side. Suddenly and unexpectedly the truck pulled to the left and Mr. Watson was unable to keep it from striking the guardrail. After the accident and on inspection, Mr. Watson discovered that there was a 1/2 to 3/4 inch drop-off from the concrete portion of the left lane to the asphalt shoulder. He also later learned that his truck had been equipped with radial tires. Mr. Watson had not previously driven on radial tires, but since the accident he has learned that radial tires have a tendency to pull when driven over an uneven surface.

There is no evidence in this record to controvert Mr. Watson’s testimony. Appellants introduced no testimony in an attempt to show that radial tires would not react exactly Mr. Watson described. There was no evidence tending to show that Mr. Watson should have known of that characteristic of radial tires before the accident. There is absolutely no evidence that either of the other defendants should have known of that tendency before the accident. There is no testimony that Mr. Watson operated his truck any differently than would other truckers using the nation’s highways.

It is important to remember that the appellant as plaintiff below had the burden of proving negligence by a preponderance of the evidence. The jury could, and obviously did, find that Mr. Watson had not acted negligently. There is substantial evidence in the record from which the jury could properly base a verdict for the defendants below. The defendants did not have the burden of proving freedom from negligence. As stated above, plaintiff had the burden of proving negligence on the part of the defendants. The jury found that plaintiff had not met this burden.

The mere fact that the truck struck the bridge does not of itself require a finding of negligence as a matter of law. Appellant argues, in effect, that it was entitled to a directed verdict even though Mr. Watson’s own testimony, if believed by the jury, exonerates him from negligence. While Mr. Watson’s testimony cannot be deemed uncontroverted since he is a party, the jury was certainly entitled to accept or reject Mr. Watson’s explanation. It chose to believe him.

There is nothing in this record to suggest that the trial court misunderstood or misapplied the law in ruling on plaintiffs motion for a new trial. The trial judge obviously found that the jury’s verdict was not contrary to the preponderance of the evidence. In Bockman v. World Insurance Company, 223 Ark. 665, 268 S.W. 2d 1 (1954), the trial court denied a motion for a new trial. In affirming on appeal, the Arkansas Supreme Court said:

So, the sole question is: Was there any substantial evidence to support the jury’s verdict? We hold that there was.
In determining this issue, this Court, on appeal here, has long been committed to the following rules of law, so well established that citation of authorities is unnecessary. We are required to view the evidence in the light most favorable to the jury’s verdict, and affirm if there be any substantial evidence to support it. The weight of the evidence and credibility of witnesses are solely within the jury’s province. We are not concerned with where the preponderance of the evidence may be. This prerogative rests with the jury and the trial court.

See also, Black v. Johnson, 252 Ark. 889, 381 S.W. 2d 701 (1972); Mason v. Loving, 251 Ark. 356, 473 S.W. 2d 169 (1971); Twist v. Mullinix, supra.

Since the verdict of the jury in the case before us was supported by substantial evidence, we cannot say that the trial court abused its discretion in refusing to overturn the verdict.

Affirmed.


text:
    DON GILSTRAP BUILDERS, INCORPORATED v. Johnny JACKSON, Jr. and Ollie Fay JACKSON, His Wife
    CA 80-89
    601 S.W. 2d 270
    Court of Appeals of Arkansas
    Opinion delivered July 2, 1980
    Released for publication July 8, 1980

      Ben Rice, for appellant.

      Dodds, Kidd & Ryan, by: Donald S. Ryan, for appellees.
   James H. Pilkinton, Judge.

Mr. and Mrs. Johnny Jackson of Jacksonville contracted with Don Gilstrap Builders, Inc., of Pulaski County, Arkansas, for the construction of a residence. The contract was prepared by Gilstrap by using a printed form, intended for an entirely different type of transaction, which the builder modified by striking some of the printed form and adding other provisions in writing. The contract price for the construction of the Jackson home was $42,900.00.

After construction was commenced, certain “extras”, not mentioned in the contract, were discussed by the parties; and, the builder claims were added. Mr. and Mrs. Jackson paid Gilstrap the original contract price in full, but appellant sued them for the so-called extras alleged to be in the sum of $1,343.72. The Jacksons denied that they owed the builder any additional sum, and cross-complained for damages. The counterclaim alleged defective workmanship in the construction of the residence.

A jury was waived and the circuit judge, sitting as a jury, found for Gilstrap in the amount of $776.58 on his complaint for the extras. The evidence showed and the circuit court determined that the parties had entered into a compromise of this issue as to the extras, and were now bound by their agreement of $776.58. There seems to be no dispute concerning this item on appeal. The circuit court also found for the Jacksons on their counterclaim and fixed their damages at $5,875.00 less $776.58 which appellees owed appellant for the extras. Gilstrap has appealed, and the issue here is whether the findings of the circuit court are clearly against the preponderance of the evidence. Ark. Rules of civil Procedure, Rule 52.

I

Appellant first contends that the court erred in allowing expert testimony as to a trade term. As mentioned, the contract between these parties was on a form filled out by the appellant. Under Garages, it says:

“Garage to be left unfinished.”

The circuit court found that this term of the agreement was both ambiguous and involved a technical term and the trial court allowed a disinterested expert builder, James Mackey, to define what the term “unfinished garage” means in the building trade in the area involved. Over the objection of the appellant, Mr. Mackey testified that in the trade or building business the term “an unfinished garage” would mean a garage structure sheetrocked to sides and ceiling, not taped and bedded.

The initial determination of the existence of an ambiguity rests with the court and if ambiguity exists, then parol evidence is admissible and the meaning of the term becomes a question for the fact finder. Fort Smith Appliance and Service Company v. Smith, 218 Ark. 411, 236 S.W. 2d 583 (1951); C & A Construction Company, Inc. v. Benning Construction Company, 256 Ark. 621, 509 S.W. 2d 302 (1974); Gibson v. Heiman, 261 Ark. 236, 547 S.W. 2d 111 (1977). It is also well settled that a contract must be construed against the party preparing it. Prepakt Concrete Company v. Whitehurst Bros., Inc., 261 Ark. 814, 552 S.W. 2d 212 (1977). Under the circumstances shown by this record, we find no error in the action of the court in admitting the expert testimony involved. Different trades, in addition to coining words of their own, also appropriate common words and assign to them new meanings. In some types of cases, and under some circumstances, one cannot understand accurately the language of such trades without knowing the particular meanings attached to the words which they use. It is often said that a court in construing the language of the parties must put itself into the shoes of those making the contract. That alone would not suffice in some cases. The courts must also understand and adopt their vernaculars. Hurst v. Lake and Company, 141 Or. 306, 16 P. 2d 627, 89 A.L.R. 1222. If “usage” was not admissible evidence, then no dictionary would be admissible to aid a court or a jury. 3 Corbin, contracts, § 555 (I960 and supp. 1971).

In the case before us had the appellant wished to make it clear as to what extent the garage would be left unfinished, it should have been stated so in definite terms in the form contract which appellant prepared. Under the circumstances here, and as used in this contract, “Garage to be left unfinished” became a technical term, there would be no way for anyone to know, who was not familiar with the use of this term in the trade, what this contract means. It certainly was intended to mean something more than simply that construction on the garage was to commence and, at some point before the garage is finished, construction was to cease. We hold that the court properly allowed expert testimony on this issue.

II

Appellant also contends that the judgment was clearly erroneous and was not supported by credible evidence. We do not agree.

Rule 52 of the Arkansas Rules of Civil Procedure has altered the standard of review on appeal as to cases tried by a circuit judge sitting as a jury. Taylor v. Richardson, 266 Ark. 447, 585 S.W. 2d 934, (1979), at Page 449, points out that in accordance with Rule 52, supra:

“Findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

The circuit judge made certain specific findings of fact from the bench and cited what he considered to be supportive testimony as follows:

“On the counterclaim I’ll be frank in saying that I was more impressed by testimony from the thirty year experienced journeyman brick layer than by any other witnesses who appeared here today. I think that man knows what he is talking about. And, he testified that to get this brickwork in shape it would cost $4000.00 upwards. That testimony is considered with the testimony of James Mackey who placed a price of four thousand five hundred dollars to get the brickwork in shape. So, they were essentially testifying the same thing. I was further impressed with Mr. Mackey as a contractor. He’s licensed and bonded.”

The testimony of James Williams on cross-examination shows the following:

Q. How many bricks were used in that house?
A. . . . around 12 or 13,000, but to be exact, I don’t know.
Q. Is your estimate of $4000.00 based on replacing all the bricks?
A. No, if they were going to try to correct the brickwork, that is messed up there, it would cost them that because it would cost them to tear it down which is harder than laying them back.
Q. How many bricks would have to be replaced?
A. ... it would be better if you just knocked them all off and buy new brick and rebrick the house.
Q. Just take all the brick off the house and redo it?
A. And rebrick it over. (T. 157)

James Mackey, who is a licensed and bonded remodeling contractor, testified that it would cost $6,400 to repair all of the various defects in the house. He said that it would cost $4,500 to correct the brickwork alone. In connection with that undertaking, Mr. Mackey said:

. . . The cost you are getting into in the brick is taking the brick down. I didn’t see any way to redo the brick with them standing like they are. I didn’t see no way that I could take a brick mason out there and redo it. . . . it would have to be taken all down, and it would all have to be cleaned and then re-laid.

We find the above and other evidence in the record to be substantial and not based on conjecture. It is apparent that the trial court found the testimony of Mr. Williams and Mr. Mackey to be credible evidence.

Affirmed.


text:
    Lenes R. WISE v. DELTIC FARM & TIMBER CO., INC.
    CA 80-75
    601 S.W. 2d 580
    Court of Appeals of Arkansas
    Opinion delivered July 2, 1980
    Released for publication July 8, 1980

      Thomas & Nussbaum, by: Allan Nussbaum, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, for appellee.
   Marian F. Penix, Judge.

On or about June 28, 1974, the claimant sustained an injury or an aggravation to a preexisting degenerative condition in her back while working for Deltic Farm & Timber Co. Respondents paid claimant temporary total disability benefits until December 16, 1974 and the medical expenses incurred to December 16, 1974. The Administrative Law Judge held the healing period ended November 2, 1976 rather than December 16, 1974. On appeal, the Commission reversed and held the healing period to have ended December 16, 1974. The Circuit Court of Yell County affirmed the Commission and the claimant has appealed.

I

The claimant contends there was substantial evidence from which the Commission and the Circuit Judge could have found for claimant. Our function is not to determine whether there was substantial evidence to support claimant’s claim, but rather to determine whether there was substantial evidence to support the opinion of the Commission. Barksdale Lumber co. v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977); Turner v. Lambert Construction Co., 258 Ark. 333, 524 S.W. 2d 465 (1975).

Claimant suffered an injury June 28, 1974. Initially, she was treated by Dr. James O. Pennington of Ola, Arkansas. Dr. Nixon, an orthopedic surgeon, saw her in July, 1974. Dr. Nixon referred her to Dr. Giles, a neurosurgeon, in September, 1974. Dr. Giles treated claimant and admitted her to Baptist Medical Center for a lumbar myelogram, the results of which were found to be within normal limits. Dr. Giles arranged for an EMG and nerve conduction velocities which revealed no abnormalities. Dr. Giles released the claimant to return to work on December 16, 1974.

On January 22, 1975, claimant returned to Dr. Giles complaining of back and leg pain. Dr. Giles stated he could find no subjective or objective evidence that the claimant had a severe back problem. He stated he felt she was overstating her complaints.

In February, 1975, Dr. Pennington sent claimant to Dr. James Brown, a neurosurgeon, in Fort Smith. Dr. Brown arranged for a second myelogram, electromyogram, and nerve conduction studies. All were normal. Dr. Brown concluded the claimant’s symptoms could have been aggravated by the June 28, 1974 accident but thought the treatment for osteoarthritis of the spine was the only treatment indicated.

Claimant did not try to work between February, 1975 and the October 18, 1976 hearing date. She went to Dr. John Hundley, an orthopedic surgeon, March 24, 1976. Dr. Hundley saw her four times. He arranged for a myelogram and an electromyogram. Dr. Giles performed the electromyogram, the results of which were again normal. Dr. Hundley, however, testified the myelogram results reflected a moderate bulging centrally of the fourth lumbar interspace or a ruptured disc at L4-L5. Dr. Hundley rated claimant’s disability at 10% and stated she could still do light or even moderate lifting. Dr. Giles saw claimant again in October, 1976. Dr. Giles stated he did not see any evidence of radicular pain or progressive neurological deficits.

Dr. James Brown testified his only findings were some hypertrophic arthritis of the lumbar spine which did not come from the accident but could have been aggravated by the accident.

Dr. Pennington stated he had found no objective evidence of back injury.

Dr. Hundley testified that in his opinion the claimant was still temporarily totally disabled. Dr. Hundley did not see the claimant until almost two years after the injury. The reports of Dr. Giles, Dr. Nixon, Dr. Brown, Dr. Miles, and Dr. Pennington are contrary to Dr. Hundley’s reports. The testimony of all these doctors strongly substantiates the claimant is suffering from an arthritic condition which preexisted the incident at Deltic and which was temporarily aggravated by the June 28, 1974 incident. Their testimony indicates claimant was recovered from the temporary disability on December 16, 1974.

We find, as did the Commission, the Claimant has failed to prove she is entitled to any additional compensation for temporary total disability. We find substantial evidence to support the Commission and the Circuit Court.

II

The claimant sought to have the case remanded to the Commission by the Circuit Court in order to consider new evidence. The claimant contends the Circuit Court erred in not remanding the case to the Commission to afford an opportunity for her to present new evidence — namely a letter dated February 28, 1979 from Dr. Barron.

At the hearing before the Commission on July 13, 1977, the claimant handed the Commission a letter from Dr. Barron dated June 29, 1977. Dr. Barron’s June 29th letter described treatment for chronic pain syndrome and was in conflict with most of the other medical reports in evidence. In reviewing the February 28, 1979 letter from Dr. Barron, we find it to be cumulative in nature and does not significantly add anything to the June 29, 1977 letter which has already been considered by the Commission.

In the case of Mason v. Lauck, 232 Ark. 891, 340 S.W. 2d 575 (1960), the court spelled out the circumstances when a case could be remanded. Justice Ward wrote:

. . . nothing is more generally uniformly recognized in our jurisprudence than the power and duty of a trial court to grant a new trial on newly discovered evidence (under proper conditions) in order to prevent miscarriage of justice. The “proper conditions” referred to are, for example, that the movant has exercised due diligence, that the evidence is not cumulative, and that the new evidence would justify a different result. These “conditions” are, we think, sufficient safeguards against undue delays and connivance on the part of the claimant. . . .

We do not find the “proper conditions” in this case which would warrant remanding it for new evidence. This case presents a vastly different situation from that found in Williams v. Coca-Cola Bottling Company and Royal Globe, 266 Ark. 736, 585 S.W. 2d 372 (Ark. App. 1979). In Williams, a letter which would have verified the claimant’s testimony he had reported his injury as being job related was not admitted by the Commission. This letter was the only evidence which could corroborate the claimant’s testimony he did not wait five months to connect his injury with his job. This court remanded the case to the Commission to determine the compensability of the injury in light of the letter. In the present case, the letter sought to be admitted is merely cumulative of evidence already before the Commission. The information contained in the February 28th letter was before the Commission when it reached its decision regarding the claimant’s healing period. In reviewing this evidence, we find it was presented to the Commission for its consideration at the July 13, 1977 hearing.

From a review of the record, we find substantial evidence to support the opinion of the Workers’ Compensation Commission. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979). We find the Circuit Court of Yell County was correct in affirming the Commission and in its denial of the claimant’s motion to remand the case to the Commission.

Affirmed.