text:
    CITY OF MAGNOLIA v. Thomas CASWELL and GRANITE STATE INSURANCE COMPANY
    CA 80-102
    600 S.W. 2d 32
    Court of Appeals of Arkansas
    Opinon delivered June 4, 1980
    Released for publication June 25, 1980

      Jerry G. James, for appellant.

      Shackleford, Shackleford & Phillips, P.A., for appellees.
   George Howard, Jr., Judge.

Thomas Caswell sustained a compensable back injury on July 20, 1974, while an employee for the City of Magnolia. Appellee was awarded a 5% permanent partial disability rating. At the time, Granite State Insurance Company was the Workers’ Compensation Insurer for the City of Magnolia.

After appellee was released by his physician, he remained as an employee with the City of Magnolia, but it is readily conceded that appellee was unable to resume prior duties as an equipment operator. He could do no lifting, stooping or bending; and he continued to see his physician on the average of three or four times a year and wore a back brace. His work assignment was principally supervisory in nature because of his condition.

On January 1, 1976, the worker’s compensation insurance policy issued by Granite State Insurance Company expired; and appellant elected to become a self-insurer through the State Fund For Municipal Employees.

On August 30, 1976, while assisting two fellow-employees remove a piece of equipment from a truck, appellee sustained sharp and intense pain in his back in the same area where he was injured in 1974. Appellee ceased work immediately and consulted his physician.

On February 27, 1979, pursuant to appellee’s claim for benefits, the Administrative Law Judge found that appellee’s injury of August 30, 1976, was an aggravation of the 1974 injury; that appellee had sustained a permanent partial disability of 20% to the body as a whole, as a result of the 1974 and 1976 injuries; and that the 5% rating previously awarded for the 1974 injury when taken into consideration, entitles the appellee to a 15% rating for the 1976 disability.

On October 22, 1979, the Full Commission adopted the holding of the Administrative Law Judge as its own.

Appellant argues that the 1976 injury was not an aggravation of the 1974 injury, but on the contrary, was a recurrence of the 1974 injury and, consequently, Granite State Insurance Company is liable for the additional award of 15%. On the other hand, Granite State árgues that the 1976 injury was either a new injury or an aggravation of a preexisting condition, thus, appellant is liable for the additional award.

The issue tendered is whether the holding of the Commission that appellee’s 1976 injury was an aggravation of a pre-existing condition is supported by substantial evidence. We hold that the decision is supported by substantial evidence and, accordingly, we affirm.

The medical report of Dr. Charles W. Kelley, claimant’s physician, dated October 19, 1978, states:

“The estimated permanent partial disability to the body as a whole for Mr. Caswell’s 1974 injury was 5 (five) percent. Estimated permanent partial disability to the body as a whole for Mr. Caswell’s 1976 injury was 5 (five) per cent based on January 1978 report. (Total disability of 10%). Since May, 1978, his condition has deteriorated and 1 estimate his permanent disability at 15 to 20% total. (Emphasis added)

The claimant gave the following testimony in describing his condition after he had returned to work following his 1974 injury:

Q. Did your condition ever get better or mitigate?
A. Yes, sir, it did.
Q. How much better did it get?
A. Well, it never did quit hurting, but it was a lot better than what it was when it first happened. . . .

The medical report of Dr. Kelley dated August 30, 1976, in giving the history of claimant’s 1976 injury, provides:

“5. State in patient’s own words where and how accident occurred: ‘Hurt my back again yesterday picking up heavy equipment.’ ”

Appellant contends that the evidence is insufficient to support the Commission’s finding that the 1976 injury was an aggravation of a pre-existing injury since appellee never returned to the position of equipment operator, the job he held at the time of the 1974 injury, because he never fully recovered from that injury, that appellee continued to see his physician on the average of three to four times a year, wore a back brace, took pills constantly and could do no lifting, stooping, squatting or bending; and that it is clear from the evidence that the 1976 injury was a recurrence, instead of a new injury or an aggravation, of the 1974 injury. Appellant argues that while the medical report of Dr. Kelley dated August 30, 1976, reflects a statement from appellee to the effect that he hurt his back by lifting equipment, the claimant testified that he did not lift any equipment, but simply placed his hands on a piece of equipment that was being lifted by two fellow-employees and he was simply balancing the equipment and not doing any lifting at all.

It is settled law that the Workers’ Compensation Commission, as the fact finder, has the responsibility to reconcile conflicts in the evidence offered in proceedings before it. It is not within the province of this Court to substitute its judgment for that of the Commission even if we were persuaded that the evidence justifies a conclusion different from that of the Commission. Our limited responsibility is to determine if there is substantial evidence in the record to support the holding of the Commission. Stephens & Stephens v. Logan, 260 Ark. 78, 538 S.W. 2d 516 (1976). Moreover, in testing the sufficiency of the evidence on appeal, the appellate court views the evidence in the light most favorable to the Commission’s finding and affirms where any substantial evidence exists to support its action. Westark Specialties, Inc. v. Lindsey, 259 Ark. 351, 532 S.W. 2d 757 (1976).

After carefully reviewing this record, we are unable to say that the decision of the Commission is not supported by substantial evidence.

Affirmed.


source: Caselaw Access Project

author: David Newbern, Judge.

license: Public Domain

text:
    Conley BROYLES v. Charles L. DANIELS, Director of Labor, and NAYLOR PIPE CLEANING
    E 80-14
    600 S.W. 2d 426
    Court of Appeals of Arkansas
    Opinion delivered June 4, 1980
    Released for publication June 25, 1980
    Appellant, pro se.

      Herrn Northcutt, for appellees.
   David Newbern, Judge.

The appellant has asked us to review the determination of the board of review that he is not entitled to unemployment compensation benefits. Although the appellant has not cited any specific deficiency, we will review the record to determine whether there was substantial evidence to support the board’s determination.

The appellant took a job in Texas, and he assumed, or had been told, he would be allowed to share living quarters with two other employees of the appellee company. Although the arrangement seemed to work at first, the employee whose quarters he was sharing brought his family to live there, and the appellant was thus forced to obtain separate quarters. Although the appellant stated the wages he had been promised were lower than those he received, he said that before he left the job to return to Arkansas the wages were raised to an amount higher than that which he had been promised. At every stage of the proceeding, the reason given by the appellant for his voluntary removal from the job was that he wanted to return to Arkansas, his home, because he could not earn a living in Texas, given the higher cost of living there.

The appeals referee and the board of review determined the appellant left his job for personal reasons not connected with the work, and thus he was disqualified because of Ark. Stat. Ann. § 81-1106(a) (Supp. 1979), which provides for disqualification if the employee “voluntarily and without good cause connected with the work, left his last work.”

By reading between the lines of the appellant’s testimony before the appeals tribunal, we can assume his appeal is based upon the contention that he left his last job because of a problem “connected with the work.” We agree with the board of review’s conclusion that general economic conditions which lead to seeking higher wages or lower living costs do not constitute “good cause connected with the work,” as contemplated in the statute. Thus, there is substantial evidence to support the board’s determination.

Affirmed.


author: David Newbern, Judge. Marian F. Penix, Judge,

text:
    Hettie A. JACKSON v. Charles L. DANIELS, Director of Labor, and.LADONNA SPORTSWEAR
    E 80-15
    600 S.W. 2d 427
    Court of Appeals of Arkansas
    Opinion delivered June 4, 1980
    Released for publication June 25, 1980
    Appellant, pro se.

      Herm Northcutt, for appellee.
   David Newbern, Judge.

The appellant was denied unemployment compensation benefits because it was determined that she had left her work without good cause connected with the work. Ark. Stat. Ann. § 81-1106(a) (Supp. 1979). The question is whether there was substantial evidence to support the determination of the board of review that she was disqualified in accordance with the statute.

The record shows that the appellant left her work as a sewing machine operator because of dissatisfaction resulting from her feeling that too many items were being returned to her for repair of seams she had sewn. The appellant was paid based upon the average number of seams she sewed per hour. Her contention that she was being abused was two-fold: (1) she said she felt that other operators’ mistakes were being presented to her for repair, or (2) that she should not have had to repair seams she had sewn which had previously been approved by her supervisor. She also said that she should have been allowed to resew previously approved seams without having to count those in her hourly average which determined her pay. Her contention was that she had previously been allowed to do such work .without having it counted in her average.

The president of the appellee company appeared at the hearing and testified that new procedures were being implemented in the company’s production system at the time this incident occurred. His testimony indicated the new procedures were causing some problems, and his main point seemed to be that the appellant left her job without speaking to him or following any established grievance procedure. He disputed the appellant’s testimony to the extent of saying that the repairs she was asked to do were on garments she had previously sewn. He did not, however, dispute the appellant’s contention that the seams had previously been approved by her supervisor, and he substantiated the appellant’s statement with respect to not counting the redoing of approved work against the piece average, at least to the extent of saying that, when an employee’s work must be redone because of another employee’s error, the redoing of that work will not be counted for wage purposes.

The board of review made the following determination:

The Board of Review finds that the claimant’s reasons for quitting her last job consisted of dissatisfaction with the established conditions of employment and existing agreement of hire which is not shown to have rendered her job untenable or otherwise afforded her good cause for quitting within the meaning of Section 5 (a) of the Arkansas Employment Security Law.

We cannot say there is substantial evidence in the record before us to support the board’s determination. Although we might be tempted to agree with the board’s language which seems to impose a requirement that it be “untenable” for an employee to remain on the job before we can say she left with good cause connected with the work, we cannot find that language in the statute, nor do we have any reason to suspect that was the legislative intent. It is not only in cases where the continuation of work becomes physically impossible that this statute applies. We have no doubt that the reason this employee left her job was “connected with her work.” The question then becomes whether she had “good cause.” She has met her burden of showing good cause. For us to sustain the board’s determination, we would have to find substantial evidence that there was no good cause. We find no such substantial evidence.

Although we would not approve benefits for an employee who left her work for general economic reasons not connected with some specific alleged unfairness perpetrated by her employer, an act by the employer which does economic injury to the employee may be “good cause connected with the work.” The Ladish Co. v. Breashears et al, 248 Ark. 263, 563 S.W. 2d 419 (1978). Unlike the provisions in paragraph two of the above cited section of the statute, which requires an employee to preserve her job rights if she left because of personal emergency, there is no such requirement when the voluntary departure is for other “good cause connected with the work.” Thus, we attach no significance to the testimony of the employer showing the abruptness of this claimant’s departure.

Reversed and remanded and with orders to the board of review to honor the appellant’s claim.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. I disagree with the majority. They find there was not substantial evidence to support the Board of Review determination the appellant was disqualified in accordance with Ark. Stat. Ann. § 81-1106(a).

The appellant may well have had legitimate cause for dissatisfaction with her job conditions. However, by her own admissions, she made no effort to discuss her dissatisfaction with higher supervisory or management personnel nor did she attempt to invoke the available grievance procedures established by the union for the processing of such employee compaints with higher management.

Before invoking the relief provided by the State of Arkansas, the appellant should have exhausted the initial remedies available to her. Unemployment benefits are designed to keep workers afloat when other financial avenues are closed to them. However, these avenues must have been travelled before unemployment benefits are available.

I respectfully dissent.


author: Steele Hays, Judge.

text:
    Sondra GRAHAM v. Charles L. DANIELS, Director of Labor, and INDOOR COMFORT, INC.
    CA 79-284
    601 S.W. 2d 225
    Court of Appeals of Arkansas
    Opinion delivered June 11, 1980
    Released for publication July 2, 1980

      Marsha L. Choate, for appellant.

      Thelma Lorenzo, for appellees.
   Steele Hays, Judge.

This is an unemployment insurance claim. The claimant has appealed a determination of the Agency denying benefits to her under the provisions of Section 5(a) of the Arkansas Employment Security Act, which held that she voluntarily quit her last work without good cause connected therewith. The determination of the agency was affirmed by the Appeals Tribunal and by the Board of Review.

The claimant had worked for Indoor Comfort, Inc. for approximately two years doing general office work under the supervision of Mr. R. C. Maines, President, and Mr. Kenneth Whalen, Service Manager. Claimant’s explanation for her discharge was: “My boss (Mr. Manes) and I had a mutual disagreement.” Claimant and her sister were working on July 5, 1979, having commenced work at 7:30 that morning. At approximately 1:00 PM claimant contacted Mr. Whalen by radio to ask if he was coming to the office to relieve claimant and her sister for lunch. Mr. Whalen directed claimant to lock up the office and go to lunch, whereupon Mr. Manes radioed in and instructed the two employees to go to lunch separately so that the telephone would not be unanswered during the lunch break. Mr. Manes came to the office and apparently repeated the instruction and notwithstanding the direct order for claimant and her sister to go to lunch separately, they both left for lunch. When claimant returned from the lunch break she stated that Mr. Manes did not speak with her and she and her sister wrote out their salary checks and left.

Appellant contends that under the foregoing circumstances, she did not quit her job voluntarily. However, by her own account of the events no other conclusion is possible. Claimant left for lunch with her sister against the direct and specific orders of her employer, Mr. Manes, and when she returned, instead of resuming her duties, she simply wrote out a check for her own wages and those of her sister and departed. We can conceive of no other characterization of the episode but that claimant voluntarily left her job.

Claimant argues, first, that the order was arbitrary and unreasonable and, second, that had she complied, a violation of Ark. Stat. 81-609 would have resulted. Ark. Stat. 81-609 is a section of Chapter 6, Title 81, entitled “Employment of Women” and provides that no woman shall be employed for more than six and one-half hours without a lunch or rest break. We do not agree that, the order was arbitrary and unreasonable for the reason that an employer has a legitimate interest in having telephone calls answered during the lunch hour and that interest outweighs, we think, the desires of two employees to have lunch together. As to the second point, Ark. Stat. 81-609 applies only to employers of more than three females and there is no showing that Indoor Comfort was subject to this provision of Title 81. Additionally, Ark. Stat. 81-628 (a part of the same chapter) provides penalties for employers who violate provisions of Chapter 6 and there is nothing in the chapter which even remotely suggests that an employee may voluntarily quit his job because of an isolated incident which might arguably be in violation of a section of this chapter and thereby preserve unemployment insurance benefits. We think the two acts have no co-relation.

The rather evident fact is that claimant was dissatisfied with her job for a number of unspecified reasons and by her repeated statements in the record the issue of the lunchbreaks “was not the main reason for (her) departure.’’ Claimant testified that she told Mr. Manes that he had been unfair to her for six months, and that the argument between them was “for a lot of different reasons.” Finally, claimant’s statements that she was not sure whether she had quit first or had been fired first (“I think it was a mutual departure”) lends strong support to the inference that her departure was voluntary rather than a dismissal.

Whether the claimant was justified in her belief that she was treated unfairly is not discernable from the record and whether it constitutes “good cause” is not at issue here. By her own account she simply wrote out her check and left. By no stretch of the imagination could it be said that she was discharged. Payment of unemployment insurance benefits under these circumstances would be going far beyond either the letter or the spirit of the Arkansas Unemployment Security Law.

The Board of Review is affirmed.


text:
    HENDERSON STATE UNIVERSITY and the STATE of Arkansas v. Doyle HAYNIE
    CA 80-9
    600 S.W. 2d 454
    Court of Appeals of Arkansas
    Opinion delivered June 11, 1980
    Released for publication July 2, 1980

      Jerry G. James, Public Employees Claims Division, for appellants.

      W. H. “Dub" Arnold, for appellee.
   Steele Hays, Judge.

This is a Workers’ Compensation case. Claimant-appellee, Doyle Haynie, sustained a compensable injury to his left knee on October 26, 1977. Respondent-appellant, Henderson State University, accepted a 30% anatomical disability rating to claimant’s left knee and paid benefits to claimant based on that percentage.

On April 25, 1979, a hearing was held at which claimant contended that he was permanently and totally disabled. Appellants alleged that he should only be allowed permanent partial disability benefits to the extent of 30%. The Administrative Law Judge awarded claimant permanent and total disability benefits. The Full Commission affirmed the holding of the Administrative Law Judge. Claimant brings this appeal from the Commission.

The only issue for determination is whether there is substantial evidence to support the Commission’s finding of permanent and total disability. Respondent contends that claimant has become totally disabled due not only to the injury of his left knee, but to his pre-existing physical condition and also other injuries unrelated to the injury which occurred on October 26, 1977. (Claimant had received an injury to his right knee in April of 1976 and had received a 30 permanent partial disability rating. He had also received a 10% permanent partial disability rating for an injury received in April of 1963 with another employer.) Also, respondent bases his argument on appeal, to some extent, on the report of Dr. Thomas M. Durham which stated that due to the arthritis in his “knees,” claimant would probably never turn to gainful employment. Furthermore, the doctor’s report places much of the basis of claimant’s disability on his obesity and states that if claimant lost some weight, he might consider a total knee replacement. The gist of respondent’s argument is that since the injury of October, 1977, to claimant’s left knee was not the sole cause of claimant later being awarded total disability, then respondent should not be held liable for the entire cost of total disability benefits.

It is the rule in Arkansas that a scheduled injury which results in permanent and total disability will entitle the claimant to total disability benefits. McNeely v. Clem Mill and Gin Company, 241 Ark. 498, 409 S.W. 502 (1966). Although in some jurisdictions the benefits for a scheduled injury are deemed to be exclusive, the modern trend is to treat such injuries as non-exclusive if the injury affects some other part of the body, resulting in total disability. [See 2 Larson’s Workers’ Compensation Law § 58.20 (1976)].

The case at bar is similar, in many respects, to Cooper Industrial Products v. Worth, 256 Ark. 394, 508 S.W. 2d 59 (1974). In that case, claimant sustained an injury to her right knee in the course of her employment that resulted in a disability rating of 40% of her right lower extremity. The Commission held that claimant was permanently and totally disabled as the result of her knee injury. In its opinion, the Commission stated:

It is true claimant sustained other injuries which were anatomically disabling. However, these prior injuries were not disabling in the compensation sense. Disability means incapacity because of injury to earn. Claimant testified that she was able to do her work and earn her way after her two previous injuries but could not do so after her third injury.

The Arkansas Supreme Court held that there was substantial evidence upon which the Commission could award permanent and total disability benefits.

In the instant case, claimant testified that he was able to return to gainful employment after the injury to his right knee but could not return to work after injuring his left knee.

On appeal, the Commission’s findings will be upheld if there is any substantial evidence to support the decision. Hawthorne v. Davis, 268 Ark. 131, 594 S.W. 2d 844 (1980); Clark v. Peabody Testing Services, 265 Ark. 489, 579 S.W. 2d 360 (1979). In the instant case, we believe there is substantial evidence to support the Commission’s finding that claimant was permanently and totally disabled as a result of the injury to his left knee in October of 1977. We do not dispute appellants’ assertions that claimant’s other conditions, i.e. obesity and the other injuries, contributed to his rating of permanent and total disability. However, these conditions were not disabling “in a compensation sense’’ because claimant was able to work up until the time he sustained the injury to his left knee. Cooper Industrial Products v. Worth, supra.

For these reasons, we affirm the holding of the Commission.

Pilkinton, J., not participating.


author: James H. Pilkinton, Judge.

text:
    John C. FRIERSON v. Charles L. DANIELS, Director of Labor and Roy L. SHARPE, Postmaster, U.S. Postal Service
    CA 80-19
    600 S.W. 2d 446
    Court of Appeals of Arkansas
    Opinion delivered June 11, 1980
    Released for publication July 2, 1980

      Appellant, pro se.

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

Appellant has appealed from a decision of the Arkansas Employment of Review dneying him benefits under the provisions of Section 5(b)(1) of the Arkansas Employment Security Act. It was determined by the Board of Review that appellant had been discharged from his work for misconduct in connection with his employment.

The evidence shows that the appellant had worked for the U.S. Postal Service, the employer, as a letter carrier for approximately four years prior to being discharged. Elis last day of work was on November 27, 1979- The record shows that prior to being discharged appellant had on seven occasions been issued letters of warning, had been suspended, or counselling concerning conduct which his employer considered to be unacceptable. The final instance which brought about his seventh and last disciplinary measure occurred when he failed to properly secure the Jeep he was using in making his deliveries. As a result the Jeep rolled forward while unoccupied and struck another vehicle. Although appellant had been instructed during the drivers’ training course given to all letter carriers that any vehicle accident must be promptly reported to the postal officials and to the police, the evidence shows that the appellant did not report the accident. The postal regulations also provided that under these circumstances the vehicle is not to be moved until the accident has been reported to the police and investigated. The evidence shows that the appellant moved the vehicle from the scene of the accident, and failed to notify the police or employer of the accident. The record shows that the first indication the employer had that the appellant’s Jeep had been involved in an accident was when the owner of the other vehicle contacted the employer. The employer then sent a representative to contact the claimant and to make an investigation about the accident.

Section 5(b)(1) of the Arkansas Employment Security Act [Ark. Stat. Ann. § 8R1106(b)(1) (Repl. 1976)] provides a disqualification for claimants who are discharged from their last work for misconduct in connection with the work.

The Board of Review concluded from the evidence in this case that the appellant had been discharged from his employment for misconduct in connection with the work within the meaning of Section 5(b)(1) of the act. The Board of Review specifically found that the failure of appellant to immediately advise his employer that the vehicle he was driving had been involved in an accident, together with his failure to notify the police of the accident, and his refusal to remain at the scene until the accident was investigated, demonstrated a deliberate disregard of the standards of behavior which his employer had a right to expect of him. The Board of Review found that these actions of the appellant constituted misconduct in connection with his work. A careful review of the record shows that there is substantial evidence to support the findings and decision of the Board of Review. Therefore it is the duty of this court on appeal to affirm. Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978); Terry Dairy Products Company, Inc. v. Cash. Commissioner of Labor, 224 Ark. 576, 275 S.W. 2d 12 (1955).

The decision of the Board of Review denying the claimant benefits under the provisions of Section 5(b)(1) of the Arkansas Employment Security Act is affirmed on the finding that there is substantial evidence to support the decision of the Board of Review that appellant was discharged from his employment for misconduct in connection with the work within the meaning of this section of the law. As determined by the Board of Review, appellant is denied benefits for eight weeks as defined in subsection (i) of this section of the act.


text:
    SOUTHWESTERN BELL TELEPHONE COMPANY OF ARKANSAS v. Olen L. FULMER and Mary Louise FULMER
    CA 80-54
    600 S.W. 2d 450
    Court of Appeals of Arkansas
    Opinion delivered June 11, 1980
    Released for publication July 2, 1980

      D. D. Dupre, Sandra Broirn, and Penix, Penix & Mixon, for appellant.

      Guy H.Joites, Phil Stratton, Guy Jones, Jr., Casey Jones, by: Guy Jones, Jr., for appellees.
   James H. Pilkinton, Judge.

This is an eminent domain case. Appellees Mr. and Mrs. Olen L. Fulmer as landowners were awarded $18,000 as just compensation for a right-of-way easement taken by Southwestern Bell Telephone Company, the appellant, for an underground telephone line. Southwestern Bell has appealed claiming there is no substantial evidence to support the verdict.

The petition filed in this case seeks to condemn a 16-1/2 foot right-of-way over the West 16-1/2 feet of the Southwest Quarter (SW 1/4) of Section 28, Township 6 North, Range 13 West, in Faulkner County, Arkansas. It was alleged that this right-of-way easement is necessary for the placement of buried telephone communication cables to provide additional telephone service to members of the public in Greenbrier, Damascus, Morgantown, Quitman, Rosebud, Enola, Vilonia, and Conway, Arkansas. The petitioner alleges that Mr. and Mrs. Fulmer are the owners of a part of the West Half of the Southwest Quarter (W 1/2 SW 1/4) of Section 28, and the proof shows that the Fulmers own 77 acres in that call. The easement in question runs along the West line of a portion of their property. The parties are in agreement that only 0.69 of an acre of the Fulmer property was actually taken for the easement, but they claim substantial damage to the remainder of their land. The line involved is a cross-country telephone cable which will be buried at a depth of 40 inches below the surface. Insofar as appellees are concerned, the easement covers the West 16-1/2 feet of the Southwest Quarter of the Southwest Quarter (SW 1/4 SW 1/4) of Section 28; and, as the easement continues North, it also covers the West 16-1/2 feet of the South 511 feet of the Northwest Quarter of the Southwest Quarter (NW 1/4 SW 1/4) of said secton. Therefore, the easement is located on the West 16-1/2 feet of the South 1831 feet of the property owned by the Fulmers in the West Half of the Southwest Quarter (W 1/2 SW 1/4) of said Section 28.

Only two witnesses testified for the landowners as to value. Mr. Bob Wilcox, who lives in Greenbrier-Springhill, and who said he had been in the real estate business for 16 years, testified as an expert on behalf of the appellees. Mr. Wilcox had been engaged in subdividing land, and owns an interest in adjoining property. When asked on direct examination for his opinion as to the value of “the Fulmer’s property” as of February, 1978, on the date of taking, he stated:

Well, I think it’s worth anywhere from $ 1,000 to $1,200 or $1,300 per acre at that time.

Thus his testimony as to the value of “the Fulmer property” before the taking is not very specific as it contained a spread of $300 an acre between his highest and lowest figure. Mr. Wilcox’s testimony is not specific at all as to what particular property he was valuing. Only 77 acres was involved and alleged to be affected by this easement. In an effort to establish' ownership to the property involved, the landowners introduced a series of deeds which together show that they own a total of 209 acres in the area; but, it is apparent that only a part of their land could be affected in any way by the easement in question. Mr. Wilcox did not specify what part of the Fulmer land he was valuing or how many acres were involved in his appraisal. As to the value after taking, with the easement in place, he said, “I would say it has been damaged to the tune of $100 to $150 an acre.” He does not identify, however, what land he has reference to in giving his conclusion, or how many acres were involved in his estimate of damage. Since Mr. Wilcox did not specify what land he was valuing, or how many acres of the Fulmer property were involved in his before and after value, we have concluded that his testimony cannot be considered as substantial.

The only other witness for appellees on the question of damages was Mr. Olen Fuller, one of the landowners. While a landowner is permitted to testify as to the value of his property because of his status as an owner, the weight of the landowner’s testimony is affected by his knowledge of values. Arkansas Highawy Commission v. Darr, 246 Ark. 204, 437 S.W. 2d 463 (1969). The rule that an expert need not state the basis of his opinion on direct examination does not apply to non-expert witnesses who must state the basis on direct examination. Ross v. Clark County, 185 Ark. 1, 45 S.W. 2d 31 (1932). In the case before us, Mr. Fulmer testified that before the line was put in he believed his property was worth $1,000 to $1,300 an acre. He further stated that he believed the line had decreased the value of “the land” $100 to $150 an acre. At another place in his testimony, Mr. Fulmer said that he wasn’t wanting to sell his land, and didn’t want to sell it now, but believed he could get $1,000 to $1,300 for it now. That was after the easement had been taken. The testimony of Mr. Fulmer is somewhat confusing, but in any event, like Mr. Wilcox, this witness did not specify what land he was talking about in giving his value testimony, or how many acres were involved. In addition, Mr. Fulmer gave no basis whatsoever for his opinion. As already stated, a landowner may testify as to value, but he is required to state the basis for his opinion; otherwise, it cannot be weighed in a proper light by the jury. Mr. Fulmer’s testimony on appellees’ damages and just compensation is clearly not substantial.

Appellees seek to justify the amount of the award by claiming that an eight-acre tract, with highway frontage, will be severed by the easement from the other adjoining lands to the east and southeast. Mr. and Mrs. Fulmer own a small tract of land in another Section of approximately eight acres, facing U.S. Highway 65. This eightracre tract is located directly west of the South 511 feet of the Northwest Quarter of the Southwest Quarter (NW 1/4 SW 1/4) of Section 28. Therefore, this easement is drectly behind the east side of the eight-acre tract. The appellees argued in the lower court, and claim on appeal, that all the Fulmer land east and south of the eight-acre tract, with the highway frontage, will be landlocked and deprived of access. There is no evidence to support such a contention. This case involves a right-of-way easement only for a telephone cable which will be buried 40 inches below the surface. There are no above-ground barriers involved to prohibit access to the property east and southeast of the eight-acre tract. The record shows that this case was tried by the landowners on the theory that the taking was in fee, and that the appellees had lost all rights in the 16-1/2 feet covered by the easement along the west side of a part of their land. In oral argument before this court, counsel for appellees admitted that he had argued to the jury that Southwestern Bell Telephone Company could, under this easement, if it desired, erect a “China Wall” on the easement, and that appellees would be trespassers if they attempted to cross or use this easement in any manner. As already indicated, appellant’s right-of-way is an easement only. The taking in this case was not in fee. In the case of Davis v. Arkansas Louisiana Gas Company, 248 Ark. 881, 454 S.W. 2d 331 (1970) the Arkansas Supreme Court said:

It has always been recognized in this state that a landowner from whose lands a right-of-way easement has been taken has the right to continue using the surface of the right-of-way for farming or other purposes not inconsistent with the use of the easement after the improvement is constructed. Ark.-La. Gas Co. v. Maxey, 245 Ark. 15, 430 S.W. 2d 866. We have said that a condemnor is granted exclusive possession of the condemned property only to the extent necessary for the erection, operation and maintenance of the improvement for which the easement is taken or granted, and that the landowner has the right of possession subordinate to the paramount possession of the condemnor, with the corresponding right to exercise any and all rights of ownership except such as are inconsistent with the easement. Patterson Orchard Co. v. Southwest Arkansas Utilities Corp., 179 Ark. 1029, 18 S.W. 2d 1028, 65 A.L.R. 1446. As a corollary to the recognized principle hereinabove stated, it is said that the rights of the parties are reciprocal and the respective owners must use the way in a manner that will not interfere with the other’s right to utilization and enjoyment thereof. Lindsey v. Shaw, 210 Miss. 333, 49 So. 580 (1950); Denton v. Buffalo Pipe Line Corporation, 39 N.Y.S. 2d 83 (Sup. Ct. 1939).

Of course in fixing just compensation in this case, the landowners are entitled to be paid for the easement on the same basis as if the taking was in feet; however, that rule has nothing to do with the future use of the land after the easement is in place. Appellees seem to be confused as to the proper application of these two separate rules of law. While Davis v. Arkansas Louisiana Gas Company, supra, dealt primarily with a different issue than is before us now, the law as stated above applies to the case at bar.

We find no substantial evidence in the record to support the amount of the verdict or for anything approaching that figure. At the same time, the testimony of the appellant’s expert witness is not altogether convincing. He admitted on cross-examination that he had considered 123 acres in his appraisal even though the pleadings refer to a lesser number of acres. He also admitted that he had made his appraisal, in part, on the basis of data assembled by others.

Appellate courts have on many occasions offered the landowners in eminent domain cases the opportunity to enter a remittitur. The Arkansas Supreme Court in Arkansas Highway Commission v. Darr, supra, discussed the rules governing remittiturs. In the case before us, we cannot with confidence on this record arrive at a minimum sum which the landowners should in any event recover. Since we would have to speculate to fix a remittitur, the case must be reversed and remanded for a new trial.

Penix, J., disqualified and not participating.


text:
    Warren J. GREEN v. JACUZZI BROTHERS et al
    CA 80-90
    600 S.W. 2d 448
    Court of Appeals of Arkansas
    Opinion delivered June 11, 1980
    Released for publication July 2, 1980

      Dodds, Kidd & Ryan, for appellant.

      Wright, Lindsey & Jennings, by: Wendell L. Griffen, for appellee.
   James H. Pilkinton, Judge.

This is an appeal from a decision of the Arkansas Workers’ Compensation Commission. The commission denied appellant’s claim for compensation benefits, and the question before this court is whether there is substantial evidence to support that decision. We are not at liberty to weigh the credibility of the witnesses, or to decide the preponderance of the evidence as those are the functions of the commission.

On appeal we must view and interpret the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the commission. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979). The testimony reveals that while appellant was employed as a janitorial worker for Jacuzzi Brothers, he injured his upper back and shoulder on April 10, 1978, when lifting a barrel filled with scrap metal. He was taken by automobile to Dr. Roy Harrison, the company doctor. Appellant returned to work on April 11 and worked regularly until December 8, 1978, although appellant testified that he was working in considerable pain from the shoulder injury. At the time of the hearing the appellant testified that he was unable to do any work requiring strenuous use of his right arm or hand.

The employer accepted the appellant’s claim that he was hurt on the job on April 10, 1978, and paid medical bills totaling $705.73. The claimant lost no time from work immediately after the injury but continued his regular job until December 8, 1978, when the claimant was advised by his physician, Dr. Harold G. Hutson, to refrain from work which required heavy lifting, pushing or pulling for the following two weeks. The employee allowed claimant to take sick leave during that period. When he returned for light duty, claimant was informed that the company did not have any light job for him, so his sick leave was extended. Almost immediately after he reported back for a light job, the company learned that claimant had been working for another employer doing substantially the same work during the period of time when he was given sick leave by Jacuzzi. He was confronted with this information and, when he acknowledged some of it, was terminated for cause on December 27, 1978. The employer thereafter contended the claimant was not temporarily totally disabled, and payment of any additional disability benefits was controverted.

The Arkansas Workers’ Compensation Commission found that claimant had failed to prove by a preponderance of the evidence that he is entitled to any temporary total disability benefits resulting from the compensable injury of April 10, 1978.

The evidence deals exclusively with the unusual circumstances surrounding claimant’s termination from employment at Jacuzzi Brothers on Decmeber 27, 1978. The record shows that on December 11, 1978, claimant produced a medical report to the Jacuzzi personnel office stating that claimant was physically limited to light duty because of the injury. Claimant did not return to work until December 27, when he was called in by his employer and terminated. The employer’s reason for terminating the claimant was that he was employed by Twin City Maintenance during the period that he was claiming Workers’ Compensation benefits from Jacuzzi Brothers. There is a sharp conflict in the evidence as to what claimant did and was able to do while he was working for Twin City Maintenance. At the initial hearing Mr. Virgil Huddleston, owner of Twin City Maintenance, testified that claimant performed strenuous janitorial services for him during this period of time. Claimant requested a further hearing due primarily to Mr. Huddleston’s testimony; and at the subsequent hearing the claimant produced three witnesses who testified in effect that although claimant was at work, he was very limited in what he could do and his fellow workers had to assist him in his more strenuous duties. To say the least, a review of the testimony shows a record containing sharply disputed testimony. In determining the preponderance of the evidence, the commission noted that those testifying for the claimant were the claimant himself, the claimant’s brother, and two part-time employees who worked with the claimant. The commission determined that all of the testimony in claimant’s behalf was given by interested parties. The commission had the right, just as a jury would have, to believe or disbelieve the testimony of any witness. Meyer v. Seismography Service Corporation, 209 Ark. 168, 189 S.W. 2d 797 (1945).

We have carefully reviewed the evidence before the commission. The findings of the commission are supported by substantial evidence although much of such evidence was disputed by the claimant. Under those circumstances, it is our duty to affirm the decision of the commission. The findings of fact of the commission are conclusive and binding on the courts, in the absence of fraud, and are not for de novo determination by the courts. Ark. Stat. Ann. § 81-1325(b) (Supp. 1979); Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W. 2d 408 (1971). In Clark v. Peabody Testing Service, supra, the Supreme Court stated:

The resolution of doubts and factual issues favorably to the claimant is a function of the commission, not of the courts, which must view and interpret the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the commission and give the testimony its strongest probative force in favor of the action of the commission, whether it favored the claimant or the employer.

On appeal the courts are required to resolve all doubts in favor of the commission’s findings. Bale Chevrolet Company v. Armstrong, 241 Ark. 705, 409 S.W. 2d 328 (1966). We must affirm if we find any substantial evidence to support the commission’s ruling. Clark v. Peabody Testing Service, supra.

Even though we might feel that the commission reached the wrong result in this case, we are not at liberty to upset its findings because there is substantial evidence in the record to support it. Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S.W. 2d 166 (1964). It was for the commission to determine the extent to which credit is given to testimony, disputed or undisputed. Wilson v. United Auto Workers, 246 Ark. 1158, 441 S.W. 2d 475 (1969).

Affirmed.


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

text:
    REBSAMEN INSURANCE, a Division of REBSAMEN COMPANIES, INC. v. Charles MILTON and MILTON AND PHILLIPS INSURANCE AGENCY, INC.
    CA 80-6
    600 S.W. 2d 441
    Court of Appeals of Arkansas
    Opinion delivered June 11, 1980
    Released for publication July 2, 1980

      House, Holmes & Jewell, for appellant.

      Ronnie A. Phillips, Ltd., for appellee.
   Marian F. Penix, Judge.

Rebsamen Insurance, Appellant, purchased Jim Pirtle & Co. Insurance Agency in Fordyce effective January 1, 1978. Jim Pirtle and Charles D. Milton, Appellee, were retained as employees of Rebsamen. An employment contract was executed between Rebsamen and Milton. In the contract Milton covenanted that for a period of two years following the termination of his employment he would not engage in the business of insurance or any other business in which the Employer Rebsamen is engaged. He also agreed to pay any commission earned from the insurance business to Rebsamen. The contract also provided for injunctive relief. Not long after the purchase Pirtle became ill and Milton did considerable collection work and organized accounts which he and Pirtle had brought to Rebsamen.

Milton left Rebsamen and formed an insurance agency in Fordyce October 30, 1978 called Milton and Phillips Insurance Agency, Inc. (M and P). Rebsamen sued Milton and M and P, alleging Milton had breached the terms of his employment contract by directly soliciting and accepting business from clients of Rebsamen during the prohibited two year period. The complaint asked for an injunction prohibiting violation of the employment contract and damages in an amount of the commissions received by M & P. Milton and M & P counterclaimed for . damages based on quantum meruit after an accounting of Milton’s commissions, and damages for intentional interference with Milton’s peace of mind. Claude Walters was made a third party defendant in the pleading as a joint tort feasor in the alleged tort. The Court entered its final Order October 1, 1979 finding paragraph five (5) of the employment contract broader than necessary to protect Rebsamen, therefore, holding it void as against public policy, Rebsamems complaint was dismissed and Milton’s counterclaim was dismissed.

Rebsamen contends the restrictions imposed by paragraph five (5) were reasonable and necessary for the protection of the legitimate business interests of Rebsamen and should be enforced. :

Paragraph five (5) of the employment contract reads:

(5) Employee covenants and agrees that in the event of the termination of his employment for any reason whatsoever that he will not, for a period of two years following the date of termination, either directly or indirectly, individually or as agent, engage in the business of soliciting or accepting any insurance business or other business in which Employer is engaged, from any customer or account of Employer which is at the time of severance a current account, or which has been a customer at any time within three years prior to such severance. The restrictions on time and space expressed herein are divisible and severable.

Claude Walters, office manager of Rebsamen, testified that during Milton’s employment Milton was trained in the methods and procedures used by Rebsamen. Walters also testified Milton learned policy expiration dates. He stated he discovered Milton making a list of Rebsamen customers, including policy expiration dates and amount of commissions. When confronted, Milton gave the information to Walters. Milton was told to clean out his desk. Milton admitted to Walters he was compiling the list to determine commissions he considered were due to him.

Jack Garrison, Senior Vice President of Rebsamen, testified he gave Milton personal guidance in credit procedures, applications, new business, renewal business and customer relations. He testified further that trade secrets in the insurance industry are methods and systems of business other agents don’t have. He stated Rebsamen had an economic value to protect.

Garrison learned of Milton’s resignaton and met with him. Garrison testified Milton was earning a salary of $14,-000 a year. He said he discussed a bonus with Milton and indicated he would try to arrange for one. Milton declined the tentative offer of a bonus. Garrison maintained Milton received a job and $14,00 a year pay as consideration for entering into the employment contract and covenant not to compete.

Jim Pirtle testified he considered the employment contract which he and Milton both signed to be a reasonable one. He also testified Milton didn’t get any additional compensation for the non-competitive agreement with Rebsamen. He stated he did not have such a contract with Milton.

Richard Herget, Jr. testified when he joined Atkins Insurance Corporation he signed an employment contract with a covenant not to compete. He stated the most valuable asset is the expiration list or customer file which is the basis of every insurance agency. He further stated the protection of the customer list and expiration list is the major reason for the noncompetitive agreement. He testified the only protective device is a covenant not to compete to maintain integrity of their files since an insurance company spends a tremendous amount of money in developing customer relationship through advertising, contracts and training of the employees. He testified the Internal Revenue Service has recently ascertained an agent’s expiration list is a depreciable asset thereby recognizing the list is an economic value to protect. He also stated the use of restrictive covenants in employment contracts is recognized as a standard in the insurance industry.

William Grace, Senior Vice-President of Risk Management Department of Rebsamen Insurance testified Rebsamen had exposed Milton to the markets which Rebsamen had available which the Pirtle Agency had not had prior to their purchase. He stated Rebsamen gave Milton background information, training and methods with which Milton should operate with specific accounts. He stated they are trade secrets in the insurance industry. However, Grace admitted that when Pirtle became ill on January 21, 1978 he asked Milton to relieve himself of Rebsamen business and to assist in straightening out Pirtle accounts. He testified Rebsamen has lost a little over $11,800 in accounts taken by Milton. Milton’s answers to interrogatories indicated he had solicited 35 of Rebsamen’s accounts, and has written 29 accounts. They were all former clients of Rebsamen. He testified 53 Rebsamen employees have signed a contract identical to the one signed by Milton. He stated Rebsamen writes insurance in all 75 counties in Arkansas. He testified Milton had not written enough insurance to earn his base salary of $14,000. He also testified uncollected premiums on insurnace Milton had written amounted to more than $3,400 in bad debts to Rebsamen.

Milton testified in his own behalf that Garrison had told him he had done a good job and had approximately $5,000 bonus coming. He said he was making a list to determine the money that was earned on the business he had worked on. He said he was going to present the list to Rebsamen to show them that he felt like the money he had earned was valid. He also said he was making a list of accounts which resulted from Rebsamen’s purchase of the Pirtle agency. Milton stated he felt like he understood the contract he signed but by October 8 decided it might not be a valid contract. Milton testified from his own memory he knew when customers of Rebsamen had insurance policies which were about to expire. He testified he solicited them directly. Milton handed Rebsamen’s attorney a list of present customers of P & M which consisted of fourteen names that were identified as customers of Rebsamen Insurance at the time of Milton’s termination from his employment. Milton alleged Rebsamen retained a folder containing personal information such as his income tax returns. Milton counter-claimed for $10,000 damages for interference with his peace of mind.

Wade Bratton testified on behalf of Milton. He said he had signed an employment contract with Rebsamen in 1973. He said he did not believe Milton had received any special training or any sort of unique insight from Rebsamen.

James Turner testified he manufactured file folders for Rebsamen but there is no copy-right on Rebsamen’s folders.

Stanley McNulty, Jr. testified he had been an insurance agent for twenty years but had never had his agents sign an employment contract. He said he was familliar with Louise Marrs (who had presented a course to Milton at Rebsamen) and did not consider her training as being trade secrets. He testified further the collection methods he used are not a trade secret. He testified he had looked over Milton’s employment contract and in his opinion considered it very restrictive. He further stated he would not want Rebsamen coming in and spending a month looking through his files, but he didn’t believe Rebsamen would have an advantage over him because of such endeavor.

The enforceability of a covenant not to compete depends upon its reasonableness in light of the particular facts of the case. The reasonableness of a covenant not to compete will be decided on an ad hoc basis. McLeod v. Meyer, 237 Ark. 173, 372 S.W. 2d 220 (1963). Generally, the employer must meet these three requirements: (1) the employer has a valid interest to protect; (2) the geographical restriction is not overly broad; and (3) a reasonable time limit is given.

Rebsamen cites Borden, Inc. v. Huey, 261 Ark. 313, 547 S.W. 2d 760 (1977). There the contract provided Huey would not engage in competitive business for one year in only four county seats, which had a total population of 1.3 percent of the total population of the state’s 1970 population. The Court found the territorial restriction to be reasonable. Also the Court found the one year limitation to be reasonable.

In dismissing Rebsamen’s complaint for permanent injunction and damages the learned Chancellor stated:

However, there are two areas in which this case is distinguishable from Borden Inc. v. Huey. First, Milton worked for Rebsamen less than ten months. Secondly, the testimony reflects that much of Milton’s time was spent in office and detail work in organizing and straightening out Pirtle’s business and in collections. This precluded Milton from having any significant amount of time to build up a personal relationship with customers so as to bind customer loyalty to himself instead of the agency. . .
(5) The Court finds that the provisions of paragraph 5 (of the employment contract) are much broader than necessary to protect plaintiffs legitimate business interests in this particular case and are unreasonable. Therefore, the contract is against public policy, unenforceable and void.

Milton testified he took no information with him in writing, removed no information on any of Rebsamen’s clients concerning policy coverages, expiration dates etc. This testimony was uncontradicted. The Chancellor was in a position to observe the witnesses and make a factual determination based upon their testimony. The record is replete with contradictory testimony regarding the value of the information gained by Milton. The Chancellor determined Milton possessed no information or special training which Rebsamen had an interest in protecting.

We find Rebsamen has failed to prove they have a valid interest to protect. They have failed to prove possession of trade secrets in its business. Nor have they proven Milton took any business assets with him upon termination of his employment. Further, Rebsamen has not proven Milton has become possessed of any secret formula, method or device that gives him an advantage over Rebsamen or any other insurance agency. A business cannot use a covenant not to compete to eliminate competition. “An employer cannot use this type of contract as a subterfuge to rid himself of a possible future competitor.” Bailey v. King, 240 Ark. 245, 248, 398 S.W. 2d 906 (1966).

In McCumber v. Federated Mutual Implement and Hardware Insurance Co., 230 Ark. 13, 320 S.W. 2d 637 (1959), a restrictive covenant prohibiting an insurance agent from competing for a period of two years upon the termination of his employment was held unenforceable. Since no trade secrets were involved, the employer was held to have no interest which could be protected by restrictive covenants.

We find from the record the employment contract’s provisions are broader than necessary to protect Rebsamen’s legitimate business interests in this particular case and are unreasonable. Having found the employer has no valid interest to protect, we need not discuss the remaining two requirements. The contract is against public policy, unenforceable and void.

Affirmed.

Wright, C.J. concurs.

Howard, J. and Newbern, J. dissent.

Hays, J. not participating.

Ernie E. Wright, Chief Judge.

I agree with the majority in affirming this case. However, I disagree with the holding that appellant has no valid interest to contractually protect by reasonable restrictions against an employee engaging in competition. It is my view the employer’s list of policy holders and expiration dates are proper subject matters to be protected against unfair competition. It is my opinion, however, the contract in this case restricting the employee from soliciting or accepting any insurance business or other business in which the employer is engaged, from any customer of employer or from any person who has been a customer at any time within 3 years prior to the employee’s severance, for a period of two years following termination of the employment, is too broad. The contract would prohibit the employee from doing business with the employer’s customers, both present and past, even though the business might come to the former employee through means entirely independent of any information gained by the employee in the course of his employment. Also, the contract provides no geographical limitations as to the area in which the employee is prohibited from competing.

The contract is unduly restrictive, unreasonable and therefore void.

David Newbern, Judge, dissenting. I agree with the majority opinion only to the extent of saying that each contract containing a covenant not to compete must be reviewed to determine its reasonableness based upon the context in which it is found. I find the covenant in this case completely reasonable.

The majority refers to the distinctions found by the chancellor between the facts in this case and those in Borden, Inc. v. Huey, 261 Ark. 313, 547 S.W. 2d 760 (1977). While the chancellor referred to the fact that Mr. Milton had worked for Rebsamen less than ten months and that his time was spent in the office and detail work and not with the customers, I find this distinction to be meaningless. A major factor in Rebsamen’s concern, and a major interest it seeks to protect, is the office routine or system with which Mr. Milton was intimately involved during the period of his employment.

The majority maíces too much of its inability to find that “trade secrets” had been divulged to Mr. Milton. This emphasis upon “trade secrets” apparently comes from McCumber v. Federated Mutual Implement and Hardware Ins. Co., 230 Ark. 13, 320 S.W. 2d 637 (1959), in which our supreme court said: “This case involves neither the sale of a business, nor an employment having trade secrets; so cases of those situations are not applicable.” The McCumber case does not pose a requirement that there be divulgence of “trade secrets” to hold a covenant effective, but that is merely one factor to be considered. To say the employment involved no “trade secrets” is not equivalent to saying the employer had no interest to protect. To me it is obvious that management or sales systems, which may not rise to the dignity of “trade secrets” may require protection such as was sought by the covenant in this case.

I agree that an employer should not be allowed to use the covenant not to compete as a tool to “rid himself of a possible future competitor.” However, I find no evidence whatever of any “subterfuge” on the part of the employer in this case. In Bailey v. King, 240 Ark. 245, 398 S.W. 2d 906 (1966), which provides the impetus for the majority’s expression of that thought, I find, immediately preceding the sentence quoted by the majority the following words:

Of course, if an employer obtained an agreement of this nature from an employee, and then, without reasonable cause, fired him, the agreement would not be binding. [240 Ark. at 248.]

In that case, our supreme court upheld a contract provision that an employee could not engage in the linen supply business for a period of one year within a radius of 25 miles of the city of Fort Smith, saying that agreement was reasonable.

The other case cited by the majority which bears further discussion is the McCumber case which was cited above. There, the contract of an insurance salesman provided that upon termination of his employment, he would not engage in or be in any way connected with the fire, casualty and accident and health insurance business in the territory assigned to or worked by him under his contract with the employer within a period of two years following termination of his employment. The supreme court said: “The local agent [which was the position of the employee in question] solicits business; but in servicing the policyholder the local agent is little more than a messenger boy between the policyholder and Division Office.” It was clear that the employee there was not in the least involved with or exposed to any of his employer’s management techniques which might have been considered a protectable interest. Another very important distinction between this case and McCumber is that here the agreement prohibited the employee only from:

Either directly or indirectly, individually or as agent, engage[ing] in the business of soliciting or accepting any insurance business or other business in which the employer is engaged, from any customer or account of employer u'hich is at the time of severance a current account, or ivhich has been a customer at any time within three years prior to such severance." [Emphasis added.]

Unlike the clause found in the contract in the McCumber case, this clause does not prohibit the employee from engaging in the insurance business altogether in any geographical location or at any time. It provides Ay against dealing with persons who are or. have been customers of the employer within the past three years. To me this seems a less burdensome restriction than the one approved in Bailey v. King, supra, and certainly much less burdensome than the one disapproved in the McCumber case.

I fear the majority’s misconstruction of our supreme court’s cases, albeit in an area of ad hoc decision-making, may make it virtually impossible for an employer, and employee to enter an agreement which purports to protect the legitimate interest of an employer in not having his efforts turned to his disadvantage. Just as an employer should not be allowed to use such a covenant to eliminate prospective competitors through subterfuge, an employee should not be allowed to use a subterfuge which preys upon judicial distaste for such covenants in a way that would permit him or her to take sharp advantage of an employer by taking a job with the design of learning an employer’s practices so they may thereafter be used against him. Here we have evidence of neither of these “subterfuges.” The question is the basic one of reasonableness of the requirements of the covenant. I find it reasonable.

Howard, J., joins in this dissenting opinion.


author: Marian F. Penix, Judge.

text:
    Billy L. HALL v. Charles L. DANIELS, Director of Labor and FAULKNER COUNTY ROAD DEPARTMENT
    CA 80-20
    600 S.W. 2d 436
    Court of Appeals of Arkansas
    Opinion delivered June 11, 1980
    Released for publication July 2, 1980
    Appellant, pro se.

      Herrn Northcutt, for appellees.
   Marian F. Penix, Judge.

Claimant was fired from his job by Faulkner County Road Department. He applied for unemployment benefits. The Agency allowed benefits, holding he was not disqualified under Section 5(b)(1) of the Arkansas Employment Security Laic. The employer appealed and the Appeals Tribunal held the claimant to be disqualified for misconduct in connection with the work. The decision read “is disqualified under Section 5(b)(2) of the Arkansas Employment Security Law as he was discharged from his last work for misconduct in connection with the work on account of a willful violation of the rules or customs of the employer pertaining to the safety of fellow employees or company property.” The hearing was December 28, 1979. The claimant contends he did not receive the notice of such hearing because of a mix-up concerning his address. He was not present at the hearing. The employer’s bridge foreman, Johnny Havens, was the only one to testify. A second hearing was held February 11, 1980, to afford claimant the opportunity to testify. He appeared in his own behalf and again Johnny Havens, bridge foreman, appeared for the employer. The second hearing resulted in claimant’s again being disqualified for benefits because of misconduct. The Board of Review affirmed. The Claimant appeals.

The record reveals the claimant was driving a county truck. He had worked for the county approximately 14 months. He had been sent out to unstop a tile. Not finding a stopped up tile, the claimant reported the same to the bridge foreman. The claimant was told by the foreman Havens to go back to the old shop and bust up old wooden bridges.

Claimant testified he drove back to the county shop. The foreman stated Claimant spun the truck wheels and hit a post as he went through the county shop gate. Claimant admitted spinning the truck wheels but denied hitting the post and denied doing any damage to the county property — post or truck. At the county shop the claimant told Bill Fulton, the shop foreman, Havens had told him to forget about the bridge tile because the water was too high. He also told Fulton he was going to tear up the old bridges but was going to get something to eat first. Claimant went to a cafe about a mile from the shop. He testified it was the custom to go to a cafe and get something to eat during working hours without first securing permission of the foreman.

At the second hearing before the Appeals Tribunal, the Referee asked the foreman Havens:

Q. Mr. Havens, then you are saying that you fired him, let him go because it was reported to you that he was abusive with the truck the way he drove it in the gate and also because he didn’t go over there and start doing what you told him to do when he first got there.
A. Yes sir, that’s all, I have nothing personal again — I had a job to do and I figured that was the way to get it done.

The Referee inquired of Havens if employees are told to handle county equipment with care. Havens replied that the employees are told to take care of the county equipment. He further stated that claimant’s abuse of the county truck and gate post were reported to him by Bill Fulton and he did not have first hand knowledge of such abuse.

While the testimony of Havens as to the abuse of the truck is hearsay and by itself would not support the denial of benefits, when coupled with the testimony regarding the unauthorized 9:30 a.m. lunch break there is substantial evidence to support the decision of the Board of Review. In reviewing this case our function is to determine whether there is substantial evidence in the record to support the Board of Review’s finding the claimant is disqualified from benefits because of misconduct. Terry Dairy Products Co. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955). Upon returning to the shop, Havens was informed the claimant had gone to eat. Havens stated this was a direct contravention of his orders. The foreman said he then went to the cafe, asked the claimant for the keys to the county truck, and told claimant to pick up his time. Havens said the claimant was fired for both abusing county property and failing to obey orders. The claimant’s foreman had directed him to begin tearing up old bridges. Instead the claimant went to the cafe to get something to eat. There is substantial evidence to support the denial of benefits due to misconduct on the part of the claimant.

Affirmed.


text:
    Carl Clay ANDERSON, Jr. v. Betty Jean ANDERSON
    CA 80-47
    600 S.W. 2d 438
    Court of Appeals of Arkansas
    Opinion delivered June 11, 1980
    Released for publication July 2, 1980

      Jones & Reynolds, by: Terry Jones, for appellant.

      John 'William Murphy, for appellee.
   Marian F. Penix, Judge.

Betty Jean Anderson was granted a divorce from Carl Clay Anderson on the ground of indignities, on October 11, 1979- The common property was divided and she was awarded costs of the action and attorneys fees. Carl Clay Anderson appeals.

Appellant contends the evidence was insufficient for awarding divorce on the ground of indignities in that the appellee’s testimony was not corroborated. We reluctantly agree.

The record reveals that the couple was married in June 1977 and separated March 1979- Appellee testified both she and appellant were devout Christians. She further testified her church teaches the wife is subservient to the man of the household as much as possible. According to the appellee, the couple had no television in their household prior to their first separation because the appellant strongly objected. He regarded the television as being evil. When the parties reunited the appellee brought her television, which she had purchased during the separation, and kept it in a closet. At various times when appellant was absent appellee would bring the television from the closet and view it. She testified upon one occasion, appellant became so angered he took a knife and cut and scratched the face of the set. Appellee’s father attempted to corroborate this by testifying to the fact he had seen the damaged TV.

Further testimony from appellee revealed the appellant would whip her as a religious ritual. She also testified he regarded beauty parlors as something evil. She testified that on one occasion appellant was angered by her having gone to a beauty shop and he poured a pitcher of water on her freshly coiffed hair.

Appellee testified appellant would whip her with a belt and would whip himself and his bed if he failed to arise promptly. She admitted such whippings were administered as religious rites.

The appellee’s allegations are not proven by appellant’s failure to deny them. The failure to deny the incidents or conduct does not relieve the appellee of her burden to corroborate her testimony. The rule is well-settled in this state that a decree of divorce will not be granted on the uncorroborated testimony of the plaintiff alone. Dunn v. Dunn, 219 Ark. 724, 244 S.W. 2d 133 (1951 ); Owen v. Owen, 208 Ark. 23, 184 S.W. 2d 808 (1945); Goodlet v. Goodlet, 206 Ark. 1048, 178 S.W. 2d 666 (1944).

Appellee has sought a divorce based upon indignities. The Ark. Supreme Court, in a discussion of the evidence necessary to establish indignities, said:

. . . Indignities may mean a number of things in various circumstances but in order to constitute the grounds for divorce they must be constantly and persistently pursued with the object and effect of rendering the situation of the opposing party intolerable. Gibson v. Gibson, 234 Ark. 954, 356 S.W. 2d 728 (1962).

In order to obtain a divorce based upon indignities, the plaintiff must show a habitual, continuous, permanent and plain manifestation of settled hate, alienation, and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598 (1973). Careful attention must be given to the corroborating evidence.

Corroboration has been defined as:

. . . testimony of some substantial fact or circumstance independent of the statement of a witness which leads an impartial and reasonable mind to believe that material testimony of that witness is true. Welch v. Welch, supra.

See also, McNew v. McNew, 262 Ark. 567, 559 S.W. 2d 155 (1977). The purpose of requiring corroboration is to prevent parties from obtaining a divorce by collusion. Powell v. Powell, 243 Ark. 463, 420 S.W. 2d 528 (1967). Where there is no evidence of collusion, the corroboration may be comparatively slight. LaGasse v. LaGasse, 234 Ark. 734, 354 S.W. 2d 274 (1962). In this instance, there is no corroboration, however slight the requirement.

. . . since it is for the court to say whether the alleged offending spouse is guilty of acts and conduct indicative of settled hate and plain manifestation of alienation and estrangement and whether they have been pursued in a manner and to an extent sufficient to render the complainant’s condition so intolerable as to justify the severance of the marriage bonds, the testimony may not be mere statements of generalities constituting statements of opinions, beliefs and conclusions of the witness, but must be directed toward specific language, acts, and conduct, (cites omitted). Where, however, the testimony of a sole corroborating witness discloses that he knew very little of the material issues, and his statements are based on impressions and hearsay, it will not suffice. Welch v. Welch, supra at 86-87.

The only corroborating witness for the appellee was her father. He testified he had not witnessed any of the alleged incidents. He had seen the damaged TV set but could only state he had been told it was damaged by the appellant. This testimony is insufficient to corroborate the appellant’s testimony.

In McNew v. McNew, supra, Justice Fogleman when confronted with similar problem stated:

. . . We have already indicated that we feel that the requirement of corroboration is still applicable and appropriate. We have so considered it in Adams in 1972, in Welch in 1973, and in Dunn in 1973. There is nothing that calls upon this court to engage in the judicial activism that would be, required for our nullifying that requirement. The fact the legislature has not seen fit to abolish the rule is not sufficient, particularly in view of the fact that there has been legislative amendment of the divorce statutes at least 24 times, one of which was the amendment of the pertinent section, Ark. Stat. Ann. § 34-1207 (Supp. 1975), in 1969, to eliminate the requirement of corroboration on all except one ground for divorce, in contested cases. ... It is best that changes in the divorce law be left to that branch of government which is the repository of all power of government not vested in the other two branches, and which is most representative of the people, the ultimate sovereign.

The appellee’s father attempted to corroborate her testimony in regard to her scratched television set. In reviewing all the record we find there not to be the required corroboration as is necessary to satisfy the laws of this state.

We therefore reverse the order granting divorce and modify the property disposition to show temporary possession rather than ownership.

Reversed in part and modified.


author: George Howard, Jr., Judge.

text:
    N. E. GOODE, Jr. v. FIRST NATIONAL BANK OF CONWAY, ARKANSAS
    CA 80-27
    600 S.W. 2d 436
    Court of Appeals of Arkansas
    Opinion delivered June 11, 1980
    Released for publication July 2, 1980

      William C. Brazil, for appellant.

      Larry E. Graddy, for appellee.
   George Howard, Jr., Judge.

J. W. Douglas and Gloria Jean Douglas were indebted to N. E. Goode, Jr., in the sum of $7,066.76. Goode, however, agreed to accept $3,000.00 from proceeds to be derived from a scheduled sale of real property, owned by Douglas, in full satisfaction of his claim.

Appellee, who held a judgment representing a deficiency in the sale of an automobile and farm equipment which Douglas purchased and appellee had financed and later repossessed, upon learning of the scheduled sale filed an attachment against the real estate in order to secure its deficiency judgment.

In order to avoid cancellation of the scheduled sale, appellant agreed to give appellee $1,000.00 of the $3,000.00 he was to receive from the proceeds, providing appellee would withdraw its attachment. After appellant executed a draft to appellee for $1,000.00, appellee withdrew its attachment. But appellant immediately stopped payment on the draft.

Appellee instituted an action on the draft and recovered a $1,000.00 judgment against appellant.

For reversal, appellant argues that die executed the draft under economic duress in that he did*not execute the draft voluntarily. Consequently, argues appellant, the judgment should be set aside and held for naught.

The issue of economic duress is raised for the first time at the appellate level. Appellant did not plead economic duress as a defense below. It is universally recognized that an affirmative defense must be pled at the trial level, otherwise it is waived. The trial court was never afforded an opportunity to consider economic duress as an issue. See: Rule 8(c) of Arkansas Rules of Civil Procedure.

Affirmed.


text:
    FARM BUREAU MUTUAL INS. CO. OF ARKANSAS v. Bruce L. SHAW
    CA 80-31
    600 S.W. 2d 432
    Court of Appeals of Arkansas
    Opinion delivered June 11, 1980
    Released for publication July 2, 1980

      Hodges, Hodges & Hodges, by: David Hodges, for appellant.

      Harkey, Walmsley & Beleiv, by: John M. Beleiv, for appellee.
   David Newbern, Judge.

The circuit court held that a 12% penalty and the appellee’s attorney’s fee were to be paid by the appellant pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1966). The main question with which we are presented is whether an insured may be entitled to the statutory penalty and attorney’s fee if the insurer has paid the claim to the insured for payment. The appellant has raised subsidiary questions which will also be addressed. We hold in favor of the appellee because the statute applies regardless whether the late payment is made to the insured or insured’s mortgagee.

On August 8, 1975, the premium became due on the appellee’s policy of insurance issued by the appellant covering fire loss to a large poultry house and its contents. The appellant sent a notice to the appellee that his premium was due. The wife of the appellee testified that the notice she and her husband received granted a 10-day “grace period.” The parties have stipulated for purposes of this appeal, although it does not appear in the record, that an employee of the appellant testified that the notice mailed to the appellee did not extend any grace period. The appellee presented as an exhibit a premium notice, addressed to him and to the mortgagee, which said “we are extending the protection for ten (10) days from the due date as shown.” On the morning of August 18, 1975, the insured’s structure and contents were totally destroyed by fire. On that same date, the appellee filed a proof of loss document with the appellant.

The poultry house and its contents were mortgaged to the Farmers Home Administratin (FHA) in an amount exceeding $29,000. The insurance policy was for a maximum amount of $24,000.

Although the appellee made no formal or written demand for payment upon the appellant, he testified that he spoke with appellant’s local agent about the matter, and at one point informed the agent he planned to get a lawyer in connection with his claim. The testimony of the appellant’s agent confirms that such a statement was made by the appellee. Formal demand for payment was made to the appellant by FHA on January 7, 1976. On March 12, 1976, the appellee filed suit against the appellant and named FHA as a second defendant for the purpose of assuring protection of “any interest they have in said insurance policy.” The case was removed to a United States District Court upon petition for removal by FHA. On December 13, 1976, the appellant paid $24,000, the maximum coverage, to FHA. FHA then withdrew from the case and was dismissed as a defendant in the Federal Court which then remanded the case to the circuit court for Sharp County where the penalty and attorney’s fee were awarded.

We agree with the appellant’s position that where the policy issued to a mortgagor contains a loss payable clause in favor of a mortgagee, as in this case, the parties have effected a “pre-appropriation” of the insurance proceeds to payment of the mortgage debt. Sureck v. U.. Fidelity and Guaranty Co., 353 F. Supp. 807 (WD Ark., 1973); Sharp v. Pease, 193 Ark. 352, 99 S.W. 2d 588 (1937). We also agree with the appellant’s position that the payment of insurance proceeds to a mortgagee pursuant to such a clause when the mortgagee’s interest exceeds the amount of the proceeds satisfies the obligation of the insurer to insured. However, these propositions do not address the question of liability for the statutory penalty or fee in the event payment to a mortgagee is late.

The appellant contends the appellee is prohibited from taking advantage of the statutory penalty and fee because he did not comply with that portion of the statute which requires demand upon the insurer. However, the only cases cited on this point are ones holding that formal demand is not necessary. Phoenix Ins. Co. v. Fleenor, 104 Ark. 119, 148 S.W. 650 (1912); Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132, 135 S.W. 836 (1911). The appellant says these cases do not apply because the appellee did not make a demand, and because the appellee had not paid the premium. The latter contention seems relevant only to a question of coverage and thus not relevant to the question whether sufficient demand was made. The cases cited by the appellant on this point are relevant in that they provide that no “formal” demand need be made, and there was evidence in the record before us from which the court could have concluded that an informal demand was made.

We agree with the appellant’s argument that an insurer should have a reasonable time to investigate the circumstances of a loss after a demand for payment has been made. Clark v. New York Life Ins. Co., 245 Ark. 763, 434 S.W. 2d 611 (1968); Clark Center v. National Life and Accident Ins. Co., 245 Ark. 563, 433 S.W. 2d 151 (1968). In this case, however, there is neither a contention by the appellant nor evidence in the record from which we could conclude that the reason for the delay was investigation of the claim. The reason for the delay was the inability of the appellant to come to terms with FHA with respect to the appellant’s rights in the mortgaged property upon payment to FHA. The appellant expected a release or assignment of the appellee’s note and mortgage to FHA upon payment ot FHA of the $24,000, FHA was understandably unwilling to release the note and mortgage which were for an amount over $29,000 upon receiving payment of only the substantially lesser figure. The problem was ultimately solved when the appellant and FHA entered a simple subrogation agreement by which the appellant became subrogated to the note and mortgage rights of FHA to the extent of the value of its payment ($24,000).

This delay was not caused by the appellee. It is equally apparent the appellee benefitted from the ultimate payment in that its principal obligation to FHA was very substantially reduced with a concurrent reduction in interest. We find no justification for the delay in payment, as we can find no evidence showing that the appellant and FHA could not have entered their subrogation agreement on the day the loss occurred as easily as they did some sixteen months later. Even if such evidence were before us, we have been cited to no authority holding an excuse for late payment would therefore exist.

The only remaining contention of the appellant to be discussed is based upon cases which say that when an insurer has not refused to pay the claim an insurer is not liable for penalty and attorney’s fee when the insured filed suit and the insurer confessed judgment and paid the amount sought by the insured. We need not review those cases here because they deal only with the demand for payment problem, and in circumstances such as those before us, we find the controlling law to be stated in Federal Life and Casualty Co. v. Weyer, 239 Ark. 663, 391 S.W. 2d 22 (1965), where the court said:

It is well settled that attorney’s fee and penalty attach if the insured is required to file suit, even though judgment is confessed before trial. Demand was made and liability under the contract established. The requirement of the statute being thus satisfied, it follows that in the absence of a showing by the insurance company that its actions come within the many exceptions to liability for the statutory penalty and attorney’s fee, the judgment is affirmed. [Citations omitted, 239 Ark. at 666-667.]

None of the authorities cited by the appellant seem to come to grips with its real argument which is that the appellee should not be entitled to the penalty and fee because the appellant had no obligation to pay the appellee any money, as all of it was to go to FHA. Although it does not directly say so, the appellant would have us conclude that the appellee obtained no benefit from the payment and had no interest which should be protected by the statute. Neither of those conclusions is correct.

The trial court awarded fees to two attorneys, each of whom represented the appellee at a different time in the proceedings. The appellant complains that only one fee should have been allowed and that the fees were excessive. We need not consider these arguments as no authority is cited to support them. Nor does the appellant even refer to any evidence bearing upon its claim of excessiveness. We can find no reason to hold the fees, $1,000 and $1,500, were unreasonable. Equitable Life Assur. Soc. of the United States v. Rummel, 257 Ark. 90, 514 S.W. 2d 224 (1974).

Affirmed.


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

text:
    Artist MILNER v. Charles L. DANIELS, Director of Labor, and KROGER COMPANY
    CA 80-58
    600 S.W. 2d 429
    Court of Appeals of Arkansas
    Opinion delivered June 11, 1980
    Released for publication July 2, 1980

      Appellant, pro se.

      Herrn Northcutt, for appellees.
   David Newbern, Judge.

The appellant was denied unemployment compensation benefits pursuant to Ark. Stat. Ann. § 81-1106(b)(1) (Repl. 1976), which disqualifies employees who are discharged from their employment For misconduct. At a hearing beFore an appeals referee, statements made by the claimant at the time he filed his initial claim with an employment security agency were read into the record. The claimant appeared at the hearing and testified. No representative appeared on behalf of the respondent, Kroger Company.

From the statements introduced and the testimony of the claimant, it appears that during one particular week the claimant was involved in several disputes with management personnel at the grocery store at which he worked. One dispute arose over his coming to work without a name tag. He refused to go to the back of the store to discuss the matter with a supervisor without witnesses being present. The claimant said he was wary of what might happen or what might later be said by the supervisor about such a private discussion. After witnesses were summoned, he did go to the back of the store where the matter was discussed. The claimant also alleged in his testimony that he refused to accompany the supervisor because she had used racial and profane language in instructing him to go to the back.

The other incident, which occurred some days later, concerned a dispute over the reason the claimant was not scheduled for Sunday work. He and the store manager on duty engaged in a heated discussion of the matter, and the claimant’s testimony is that the manager began walking away from him but turned suddenly and grabbed the claimant by the arms whereupon the claimant pushed the manager away. The manager then ordered the claimant to leave the store. The claimant refused to leave until police officers were summoned, and he was instructed by them to leave. The reason given by the claimant for his refusal to leave the store when told to do so by the manager was that he felt the contract between the Company and the union of which he was a member required that before he be temporarily discharged, a union representative be present.

The claimant’s explanation of his conduct, although of course and understandably biased, is the only evidence in this record. His explanation makes his conduct appear to be reasonable in response to the situations with which he was confronted. In the latter and more serious incident, he obviously felt entitled to Sunday employment, and felt entitled to the union representation before disciplinary action, such as temporary discharge, could take place. His physical response seems to have been justified by the action of the store manager.

The only reason given by the appeals referee for his decision was that the claimant’s refusal to leave the store was “unreasonable.” We are not convinced of its unreasonableness, in view of the claimant’s undisputed understanding of his union’s contract with the Company. Nor are we willing to equate unreasonableness, even if we could find it in this record, with “misconduct.” In B. J. McAdams, Inc. v. Charles L. Daniels, et al., 269 Ark. 693, 600 S.W. 2d 418 (Ark. App. 1980), a case we decided June 4, 1980, we quoted with approval the following definition of misconduct found in Boynton Cab Co. v. Neubeck, 237 Wisc. 249, 296, N.W. 636 (1941).

. . . the intended meaning of the term “misconduct” . . . is limited to conduct evincing such wilful or wanton disregard of standards of behavior which the employer has a right to expect of his employee, or in clarelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute.

See also, Williams v. District Unemployment Compensation Board, 383 A. 2d 345 (D.C. 1978); Barnett v. Commonwealth of Penn. Unemployment Compensation Board of Review, 408 A. 2d 195 (Pa. 1979); Demech v. Board of Review, 167 N.J. Super. 35,400 A. 2d 502 (1979).

In its decision approving the determination made by the referee, there is no discussion by the board of review of the facts in this case. That decision simply recites and adopts the referee’s findings and conclusions. If we could find substantial evidence of misconduct from the testimony of the claimant, we would affirm although no evidence was presented by the employer. We find no such substantial evidence of misconduct as defined above, and thus we remand this case to the board of review with instructions to honor the claimant’s claim.

Reversed and remanded.

Pilkinton, J., dissents.

Howard, J., not participating.

James H. Pilkinton, Judge,

dissenting. I would affirm this case. I cannot agree with the majority that there is no substantial evidence of misconduct in this record. As I view it, the appellant’s own statement to the Agency, together with his testimony before the Appeal Tribunal, contains substantial evidence of misconduct connected with his work within the meaning of the statute.

The fact that the employer, Kroger Company, did not appear for the hearing or contest the claim should not be decisive of the matter. The public has an interest in all unemployment insurance claims. The Employment Security Administration owes a duty to the public to protect the unemployment insurance fund from claims by persons who are disqualified to receive benefits, and this is so whether the employer involved contests the application or not.

Arkansas Statutes § 81-1107(d)(7) states:

“. . . In any proceeding under this subsection the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said Court shall be confined to questions of law.”

That has been amplified by case law:

“. . . In a proceeding of this kind the Board’s findings of fact are conclusive if supported by evidence; which of course means substantial evidence. [Ark. Stats. 1947, § 81-1107 (d)(7)].” Terry Dairy Products company, Inc. v. Cash, 224 Ark. 576, 577.

Like the decision of any other administrative tribunal, a decision of the Board of Review is reversible on appeal to the courts only if found to be arbitrary, capricious, unreasonable, and without substantial evidence to support it or in cases of fraud or corruption. City of Fort Smith v. Southwestern Bell Tel. Co., 274 S.W. 2d 474, 220 Ark. 70, 77-78.

In the recent case of Harris v. Daniels, et al, 263 Ark. 897, 567 S.W. 2d 954, 957 (1978), the Arkansas Supreme Court stated:

“In appellate review ... we must give the successful party the benefit of every inference that can be drawn from the testimony, viewing it in the light most favorable to the successful party, if there is any rational basis for the board’s findings based upon substantial evidence, (cases cited). Even though there is evidence upon which the Board of Review might have reached a different result, the scope of judicial review is limited to a determination whether the board could reasonably reach its results upon the evidence before it and a reviewing court is not privileged to substitute its findings for those of the board even though the court might reach a different conclusion if it had made the original determination upon the same evidence considered by the board, (cases cited). Even if the evidence is undisputed, the drawing of inferences is for the board, not the courts. Kessler v. Industrial Commission, 21 Wis. 2d 398, 134 N.W. 2d 412 (1965).”

Section 5(b)(1) of the Employment Security Law is codified at Ark. Stat. Ann. § 81-1106(b)(1) and reads as follows:

“81-1106. Disqualification for benefits — For all claims filed on and after July 1, 1978, if so found by the Director, an individual shall be disqualified for benefits:
# # *
(b) Discharged for misconduct. (1) If he is discharged from his last work, for misconduct in connection with the work, such disqualification shall be for eight (8) weeks of unemployment as defined in subsection (i) of this section . . .”

In this case, the Agency, the Employment Security Appeal Tribunal, and the Arkansas Employment Security Board of Review all found that appellant was not eligible for benefits because he had been discharged from employment with Kroger for misconduct connected with his work within the meaning of the law. Our duty as a court is to determine only if there is substantial evidence in the record to support the, decision of the Board of Review. Harris v. Daniels, supra. We are not to determine what parts of appellant’s statements are reasonable and to be believed, or what parts are to be rejected. That is the duty and function of-the Board of Review.

Considering the record in the light most favorable to the decision of the Board of Review, as this court must do, I think there is substantial evidence to support the determination made by the Board of Review. Therefore, I respectfully dissent.