author: Richard L. Mays, Justice.

text:
    FIRST AMERICAN NATIONAL BANK OF NASHVILLE, TENNESSEE, and Stanley M. HUGGINS, Trustee v. Boyd L. BOOTH and SHERWOOD FORREST, Inc.
    80-128
    606 S.W. 2d 70
    Supreme Court of Arkansas
    Opinion delivered October 13, 1980

      Winchester, Marshall, Huggins, Carlton, Leake & Brown, Memphis, Tennessee, and Barrett, Wheatley, Smith & Deacon, for appellants.

      Bradley & Coleman, by: Douglas Bradley, for appellees.
   Richard L. Mays, Justice.

This is the second appeal arising from a suit by appellees on a purchase money loan to impress an equitable lien upon land on which appellants’ predecessor had also made a construction loan. In the first appeal, we reversed the trial court’s judgment which voided the construction loan on the basis of usury. First American National Bank of Nashville, Tennessee v. McClure Construction Co., et al, 265 Ark. 792, 581 S.W. 2d 550 (1979). Appellants now seek to reverse a subsequent decision on remand by the trial court granting appellees’ judgment lien priority over appellants’ construction mortgage. We do not reach the merits of appellants’ argument since we find that appellants’ failure to raise the priority of claims issue in the first appeal is conclusive of their claim in this appeal.

Appellee, Sherwood Forest, Inc., conveyed three lots in Greene County, Arkansas, to John C. Watkins in consideration of his oral promise to pay $2,000 per lot. Watkins then obtained construction loans secured by deeds of trust on each lot in the total amount of $57,700 from Guaranty Mortgage Company of Nashville, Tennessee, the predecessor of the appellant, First American National Bank of Nashville, Tennessee. Approximately 2 months later Watkins conveyed the three lots to Gary McClure for consideration of three promissory notes in the amount of $2,000 each, which were immediately endorsed by Watkins to Sherwood Forrest. When McClure defaulted on payment of the notes, appellees brought suit against Watkins, McClure and appellants to recover the $6,000 purchase price of the three lots, to impress an equitable lien on the lots and to have the lien declared to be prior to the mortgage lien held by appellants. Although the trial court entered a judgment for $5,234 against McClure and granted the equitable lien, it did not reach the priority of lien question because it held that appellants’ construction loan was usurious and, therefore, unenforceable. The finding of usury was reversed on appeal, and on remand, based solely on the record which had been made before the first appeal, the trial court held that appellees’ judgment lien was prior to the deed of trust lien of appellants. Arguing that the trial court’s ruling is contrary to the law, appellants again seek relief from this court.

We have a well established rule that all matters which were or might have been determined in a former appeal may not be presented in a subsequent appeal of the same case. Storthz v. Fullerton, 185 Ark. 634, 48 S.W. 2d 560 (1932), Moore v. Robinson, 244 Ark. 837, 427 S.W. 2d 796 (1968). The rule is grounded on a policy of avoidance of piecemeal litigation and is invoked by appellees to preclude this court’s examination of the correctness of the lower court decision subordinating appellants’ lien to the judgment lien of appelless. Although appellants point out that the trial court did not expressly rule on the issue of priority until after the first appeal, we find appellees’ contention persuasive. The issue of lien priority was ripe for presentation in the first appeal and should have been argued. Essentially the same parties, pleadings, testimony, and exhibits which were before this Court on the first appeal are before this Court today. There is no reason why this Court could not have determined the issue had it been properly raised. Since, in the course of orderly procedure, appeals will not be allowed by piecemeal, no further relief is available.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    Royce LOVELESS, Sr., Commissioner of the CLARENDON HOUSING AUTHORITY v. CITY OF CLARENDON
    80-182
    606 S.W. 2d 568
    Supreme Court of Arkansas
    Opinion delivered October 13, 1980
    Rehearing denied November 17, 1980

      E. L. Schieffler, Harvey L. Yates and Raymond Abramson, for appellant.

      Moore & Serio, by: Robert G. Serio, for appellee.
   PER CURIAM

The City Council of Clarendon attempted to end a longstanding dispute between the council and a commissioner of the Housing Authority for the City of Clarendon by removing one of the commissioners. The finding by the city council was taken to the circuit court for review by a writ of certiorari, and the circuit court remanded to the council for additional action. The city reaffirmed its prior action by amendings its findings of fact. The circuit court then approved the action taken by the council.

Many points are argued on appeal, but we do not reach any of them because we affirm the trial court pursuant to our Rule 9(d). The appellant failed to abstract the charges and findings made against him by the city and also failed to abstract the exhibits. These items should have been abstracted as they were necessary for an understanding of all questions presented to this Court for decision.

The appellee could have called appellant’s error to our attention or abstracted the missing items itself. However, this was not done, and we are left with an abstracted record which is insufficient to enable us to understand the case. Reliable Finance Company v. James H. R. Rhodes et al, 252 Ark. 1077, 483 S.W. 2d 187 (1972); Dyke Industries v. Johnson Const. Co., 261 Ark. 790 (1977); Hirrill v. L. R. Civil Service Comm’n., 259 Ark. 226 (1976); Tudor v. Tudor, 247 Ark. 822, 448 S.W. 2d 17 (1969); Davidson v. Messing, 214 Ark. 227, 215 S.W. 2d 138 (1949).

Affirmed under Rule 9(d).


text:
    Darlene WILLS et al v. Polly PENNINGTON, Clark County Clerk
    80-222
    606 S.W. 2d 75
    Supreme Court of Arkansas
    October 15, 1980

      Henry Morgan, for appellants.

      John H. Jackson, Deputy Pros. Atty., for appellee.
   PER CURIAM

The judgment of the circuit court is affirmed upon the authority of McFerrin v. Knight, 265 Ark. 658, 580 S.W. 2d 463; Dixon v. Hall, 210 Ark. 891, 198 S.W. 2d 1002. Appellant has failed to demonstrate a clear entitlement to a writ of mandamus. Wells v. Purcell, 267 Ark. 456, 592 S.W. 2d 100 (1979).

Purtle, Stroud & Mays, JJ., dissent.


author: Ernie E. Wright, Chief Judge.

text:
    Billie L. TAYLOR v. B. J. McADAMS and COMMERCIAL UNION INSURANCE CO.
    CA 80-196
    606 S.W. 2d 141
    Court of Appeals of Arkansas
    Opinion delivered October 15, 1980

      Michael Redden and Chales Grethen, Purcell, Oklahoma, by: Michael Redden, for appellant.

      Thurman & Capps, Ltd., by: Paul D. Capps, for appellees.
   Ernie E. Wright, Chief Judge.

Appellant sought an award for total disability and related benefits under the Workers’ Compensation Statutes, and his claim was controverted by appellees. He appeals from the decision of the Workers’ Compensation Commission denying the claim on the ground appellant failed to meet the burden of proof establishing the claim as compensable.

The sole issue on appeal is whether there is substantial evidence to support the decision of the Commission. In essence the Commission found the evidence failed to establish appellant’s myocardial infarction, which occurred in the course of appellant’s work for Appellee McAdams, was caused by or precipitated by an accidental injury in the course of work.

Appellant suffered a heart attack while driving a truck in the State of Pennsylvania hauling freight for Appellee McAdams. Appellant owned the truck and was paid on a trip-lease basis a sum to cover the equipment and compensation for appellant and an alternate driver. The cargo was to be transported from Pennsylvania to the West Coast. Shortly before the heart attack appellant had stopped the truck and he and his relief driver drained some fuel from the trailer tank and transferred it to the truck engine tank. The weather at the time was several degrees below zero. The heart symptoms developed a few miles after appellant resumed driving. He was hospitalized for a time promptly after the heart attack, and has been readmitted to the hospital for his heart condition some four additional times. Appellant is apparently permanently and totally disabled as a result of his heart condition.

The heart of the issue is whether there is a causal relationship between appellant’s work for Appellee McAdams and the myocardial infarction. This is a question of fact to be decided on the basis of the evidence. The Commission found a causal relationship was not established. On review, the question is whether there is any substantial evidence to support the finding of the Commission, and if so, we affirm. In reviewing the evidence we consider it in the light most favorable to the finding of the Commission, whether the finding favors the claimant or employer. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979).

The evidence shows appellant and an alternate driver had driven his truck from the West Coast to Pennsylvania via New Jersey. This was not pursuant to any contract or employment with Appellee McAdams. He picked up a load of chemicals for appellee at Landover, Pennsylvania on the morning of January 7, 1977, for the purpose of hauling same to the West Coast.

The heart attack occurred a little more than an hour after appellant and alternate driver left Landover. Appellant did not do the loading of the truck. When asked in what way he felt the trip-lease work for McAdams contributed to or cause the heart attack, the appellant answered:

Well, I honestly can’t answer that. A heart attack just comes at the time it’s supposed to come. I don’t know. My health had been good, I had been sleeping and all that. So I really don’t know how to answer that.

Dr. Honick, claimant’s treating physician, upon being asked if he could say with a reasonable degree of medical certainty what precipitated the myocardial infarction, answered as follows:

The primary cause of the myocardial infarction is due to coronary heart disease. However, no one can definitely prove or disprove possible aggravating factors.

When Dr. Honick in a hypothetical question, which assumed the facts in evidence as to what appellant was doing prior to and at the time of the heart attack, was asked if he could give an opinion based on a reasonable degree of medical certainty as to the possible cause of the mycardial infarction, answered as follows:

I think the cause was coronary artery disease, but I cannot say that any of the mentioned factors definitely was the precipitating event that led to the myocardial infarction.*** We cannot rule them out, but I don’t feel that we can say that these factors caused the infarction.

Dr. Honick further stated the heart condition could have been aggravated but he could not say the work factors were the probable cause.

The evidence did not disclose any trauma or unusual physical stress suffered by appellant during the brief course of work for Appellee McAdams on January 7, 1977.

There was in evidence a report by Dr. Siegel stating:

### The harci hours driving probably did have a precipitating effect upon the myocardial infarction. This, of course, is supposition. Coronary artery disease is not caused by hard work, although stress can help accelerate the disease.

It was the prerogative of the Commission to weigh the evidence, and after considering all of the evidence in the record we are persuaded there is substantial evidence to support the finding of the Commission that the claim was not established as compensable on the ground causation linking the heart attack to work for Appellee McAdams was not established by a preponderance of the evidence. Franks v. Amoco Chemical Company, 253 Ark. 120, 484 S.W. 2d 689 (1972).


text:
    GUERIN CONTRACTORS, INC. v. John REAVES, d/b/a REAVES FOOD CENTER
    CA 80-217
    606 S.W. 2d 143
    Court of Appeals of Arkansas
    Opinion delivered October 15, 1980

      Highsmith, Gregg, Hart & Farris, by: John C. Gregg, for appellant.

      Hodges, Hodges & Hodges, by: Kaneaster Hodges, Jr., for appellee.
   Ernie E. Wright, Chief Judge.

This appeal is from a judgment against appellant pursuant to a jury verdict in an action for damages in the Jackson County Circuit Court.

Appellee owns a grocery store in Newport, and appellant was the contractor in the reconstruction of a segment of a state highway upon which appellee’s store is situated. As a result of the road construction by appellant under contract with the Arkansas State Highway Department, the highway providing access to appellee’s store was closed from July 15, 1977, until noon July 22, 1977, and for several days thereafter the road was in poor condition for travel. No advance notice was given to appellee of the road closing. There was an alternate access to appellant’s store from a street to the rear, but the access was inadequate, inconvenient and the store was without reasonable customer parking while the normal access to the store via the highway was closed. As a result of the closing of the highway the evidence shows appellee suffered substantial damages from loss of sales and profits, loss of customers for several weeks after reopening of the road and spoilage of perishables. The amount of damages is not an issue on appeal.

Appellant contends the trial court erred in refusing to give appellant’s requested instruction No. 11 which is as follows:

A contractor’s compliance with the plans and specifications prepared by the highway department cannot be deemed to constitute negligence.

The court gave numerous other instructions to which no objection was made, and among the instructions was one that told the jury the plaintiff below had the burden to prove he sustained damages, that appellant was negligent and that such negligence was a proximate cause of the damages.

The issue was not whether the final construction was in compliance with plans and specifications of the highway department, but rather whether appellant was negligent in failing to pursue a method of construction that would have avoided closing the road. The court did not err in refusing to give appellant’s instruction No. 11. The instruction is abstract and is incomplete in that it fails to explain appellant is liable for damages resulting from negligence in performing the contract.

If damages are suffered as a result of the performance of a construction contract for the state or a political subdivision, and the damages result from something inherent in the design and specifications required by the public agency, the contractor is not liable unless he is negligent or guilty of a wrongful tort. Southeast Construction Co. v. Ellis, 233 Ark. 72, 342 S.W. 2d 485 (1961). The theory is that a contractor for a public agency shares the sovereign immunity of the public body from liability for incidental damages necessarily involved in the performance of the contract. 64 Am Jur. 2d Public Works and Contracts, § 135. However, this rule does not protect a contractor who performs work in a negligent manner resulting in damages to others.

Appellant further contends the trial court erred in fading to direct a verdict in favor of appellant and that there is no substantial evidence to support the jury verdict.

The evidence shows the segment of road in front of appellee’s store and customer parking lot was old concrete, and the job required removal of the old road surface. Removal of the old surface was started on July 13, 1977. It was promptly discovered the base under the old surface was mucky and unstable, and the highway department directed that the old base be cut out and the area backfilled with a new base of gravel and other stable material. This was deemed extra work under the contract for which appellant would be compensated.

The contract contained a provision requiring the contractor to keep the highway open to all traffic during construction and to maintain in a safe condition temporary approaches and intersections with streets, businesses and parking lots. At the instance of appellant this provision was excluded from consideration by the jury, and the case was submitted upon the issues of negligence and damages. However, we point out the provision clearly called appellant’s attention to his responsibility to keep the road open to traffic during construction, and this requirement was doubtless a factor considered in submitting the contract bid. It would no doubt be less expensive to rebuild the road if the road was closed to traffic during reconstruction.

The evidence shows a common method for keeping a road under reconstruction open to traffic is to perform the construction on one side of the road while leaving the other side intact for travel. When one side of the road is reconstructed so that travel can be resumed upon it, the remaining side of the road can then be rebuilt. Appellant, although not required by the contract to do so, elected to remove the old hard surface the full width of the road in one operation. The contractor then began removing the exposed unstable base. Traffic was still flowing on Friday, July 15. However, that night when only a small amount of backfill for the road was installed, a substantial rain filled the cutout areas of the road and the water and unstable base prevented use of the road. The contractor closed the road on July 16 and it was not reopened for traffic until noon July 22. Under the conditions that existed on the morning of July 16, the Highway Department’s engineers agreed the road should be temporarily closed to traffic. A detour was arranged allowing traffic to detour via a street behind appellee’s store, but there was no feasible access to parking for store customers.

Upon considering the evidence as a whole we conclude a jury could reasonably believe appellant could have avoided the road closure and resulting damages to appellee by exercising proper care and skill in the method pursued in rebuilding the road, that appellant was negligent and appellee suffered damages as a result of appellant’s negligence.

If the weather had continued dry after July 15, perhaps appellant could have rebuilt the road by the method it chose to use without closing it to traffic, and appellant might well have saved money by removing the full width of the old pavement in one operation. However, the possibility of rain and the results that might follow were matters reasonably foreseeable and should have been considered in determining the method to be followed in performing the contract. It is the province of the jury to pass on the weight of the evidence, and when the sufficiency of the evidence is challenged on appeal we will not disturb the finding of the jury if there is any substantial evidence to support it. Oliver v. Fletcher, 239 Ark. 724, 393 S.W. 2d 775 (1965).

From a review of the record we. conclude there is substantial evidence to support the jury verdict for appellant.

Affirmed.


author: Steele Hays, Judge. Marian F. Pendí, Judge,

text:
    APCO OIL CORPORATION v. Harvey B. STEPHENS, d/b/a APCO MARINE
    CA 80-168
    606 S.W. 2d 134
    Court of Appeals of Arkansas
    Opinion delivered October 15, 1980

      Martin, Vater & Karr, by: Richard L. Martin and Charles Karr, for appellant.

      Garnett E. Norwood and Smith, McClerkin, Dunn & Nutter, by: Charles A. Morgan, for appellee.
   Steele Hays, Judge.

For a number of years, APCO Oil Corporation has owned an automobile service station at DeQueen, Arkansas, for the retail sale of gasoline and petroleum products. In 1970, their operator terminated his lease, so APCO approached Harvey B. Stephens about taking over the station. Stephens agreed to do so and the parties entered into a “Service Station Consignee Agreement,” dated December 29, 1970. Stephens bought certain unspecified merchandise, stock and equipment from the withdrawing operator. On August 25, 1971, the parties executed a “Motor Fuel Consignment Agreement” and on September 1, 1971, a “Consignee Service Station Lease.” These instruments comprised the written contracts between the parties. All agreements were signed by Harvey B. Stephens as a lessee-consignee and by P. J. Merchant on behalf of APCO Oil Corporation and were witnessed by Ben F. Harrison, APCO Representative. A provision in the lease provided that after October 30, 1971, the lease would continue from month to month and that either party could terminate by giving the other written notice thereof ten days or more prior to the date such termination would become effective. The Service Station Consignee Agreement and the Consignee Service Station Lease contained provisions that the entire agreements were contained in the written contracts and that no obligation, agreements or understandings would be implied, unless expressly set forth therein.

At the time. Stephens took over the service station from the previous operator, the station was being used by Jefferson Bus Lines as a bus station and was also providing a telephone answering service for the DX Propane distributor. Both of these services provided additional income to the service station operator and continued after Stephens took over. APCO was aware of these outside business activities and had no objection to them, though APCO received no direct benefit.

At some time prior to January, 1978, APCO began negotiating with Kerr-McGee Refining Corporation for the sale by APCO of a number of service stations in Arkansas and Oklahoma, including the station at DeQueen. In contemplation of the consummation of that sale, on January 13, 1978, APCO gave written notice to Stephens of termination of the lease and Motor Fuel Consignment Agreement to take effect on February 15, 1978. The notice was received by Stephens on January 17, 1978.

Stephens called APCO to request additional time to relocate his operation and was told that Bill Gary and Richard Morava, APCO representatives, would come to talk to him. Stephens also talked to Kerr-McGee about continuing in the station as a Kerr-McGee operator. Stephens was contacted by Morava and Gary and by representatives of Kerr-McGee, but no specific understanding was reached with either. It appears that on February 17, 1978, a Kerr-McGee distributor from Poteau, Oklahoma, came to DeQueen to discuss with Kerr-McGee representatives the possibility of operating the station as a Kerr-McGee outlet. Negotiations between the distributor and Kerr-McGee did not materialize and the Kerr-McGee distributor informed Stephens that Kerr-McGee wanted too high a price and that he was not interested. On the same day Kerr-McGee representatives locked the gasoline pumps, effectively terminating Stephens’ operation. As a consequence of the closing of the station, Jefferson Bus Lines and the DX Propane distributor moved to other locations.

On March 22, 1978, APCO filed suit to eject Stephens from the station. Stephens responded with a counter-claim, alleging that: (1) APCO had not returned a contingency deposit of $2,000.00 due him; (2) that APCO had forced him out of business with no means of disposing of the stock of goods and fixtures due to the “short notice” given him on February 17, 1978; (3) that he was entitled to be paid for certain improvements to the station; and (4) that he had lost his contract with Jefferson Bus Lines due to the “hasty manner” that APCO took over the station. Stephens sought damages of $100,000.00.

After a request for admissions, written interrogatories and discovery depositions, APCO moved for summary judgment, which was denied. The suit was tried on the issues raised in the counter-claim and over objections from APCO, Stephens was permitted to testify that Ben Harrison had told him APCO would purchase his stock and equipment if someone else took over the station. At the conclusion of the evidence, the trial court directed a verdict for Stephens for the $2,000.00 contingency deposit (which was not disputed) and directed a verdict for APCO on the allegation of the counterclaim for the cost of improving the real property. The trial court denied APCO’s motion for a directed verdict relative to the loss of the Jefferson Bus Line and the answering service and, further, denied APCO’s motion for a directed verdict on Stephens’ claim for recovery of the value of his inventory of stock, merchandise and equipment. APCO’s motion was based on the fact that Stephens’ had not alleged an oral reformation of the written contract in his counter-claim and there was insufficient evidence of oral reformation. On its own initiative, the court treated the counter-claim as amended to conform to the proof, namely, that the written contract was reformed by the oral agreement by APCO to purchase Stehens’ inventory.

The jury returned a verdict in the sum of $7,515.00. APCO moved for judgment notwithstanding the verdict, which the court denied and APCO has appealed, contending that it was error for the court to permit Stephens to testify about oral agreements allegedly entered into with APCO representative, Ben Harrison, prior to the signing of the first contract on December 29, 1970. APCO contends that under the express provisions of the written contracts, any oral agreements were merged into the written contracts and parol evidence is inadmissible to contradict, vary or enlarge the terms of an unambiguous, written contract. Further, APCO contends there was not evidence that Harrison had any authority to bind APCO.

We think appellant’s position is well taken. The law in Arkansas and elsewhere is that before the terms of a written contract can be altered or reformed by oral agreement the evidence thereof must be clear, unequivocal and decisive. Realty Investment Company v. Higgins, 192 Ark. 423, 91 S.W. 2d 1030 (1936); Davidson v. Peyton, 190 Ark. 573, 79 S.W. 2d 734 (1935); Barton Mansfield Company v. Wells, 183 Ark. 174, 35 S.W. 2d 337 (1931). The rule is that any oral agreements between the parties prior to the written agreement become merged in the subsequent written agreement and parol evidence intended to vary the terms of the writing is incompetent and inadmissible. Wright v. Marshall, 182 Ark. 890, 33 S.W. 2d 43 (1930); Beck v. Neal, 228 Ark. 186, 306 S.W. 2d 875 (1957).

It is clear beyond question that the testimony in this case with respect to the repurchase of the inventory falls significantly below anything that could aptly be termed “clear, unequivocal and decisive.” More than that, evidence that would hold APCO legally responsible for the loss of the Jefferson Bus Lines contract and the DX Propane answering service is non-existent. Appellee’s counter-claim makes no mention of the answering service and no motion to amend the pleadings to conform to the proof was made. Nor does the counterclaim state any actionable cause relative to the Jefferson Bus Lines, only that this business was lost to appellee because of the “hasty manner” in which the premises were taken. However, it is clear that APCO gave Stephens sufficient notice of termination under the agreement and breached no legal duty owing to the appellee, either contractual or tortuous, in connection with the sale of its property at DeQueen to Kerr-McGee Refining Corporation.

Appellee concedes in its brief that APCO had a right under its contracts to terminate the lease with Stephens and that it gave the required notice, but submits that APCO, through its agents, either withdrew the notice to terminate or encouraged appellee not to remove the properties or relocate the business. We are unable to find evidence on which either argument will stand and appellee has cited nothing in its argument on this point except testimony by Stephens that he called APCO to ask for more time to relocate and was told that Gary and Morava would contact him. These two men did contact him, though not until the night before Kerr-McGee locked the pumps, but only to say that APCO had sold to Kerr-McGee, though he was told, he says, by Richard Morava that “The way it looks right now, you’ll just continue to operate” as Kerr-McGee. Morava’s estimate of that likelihood appears reasonable, as it was not until the following day that the distributor from Poteau rejected Kerr-McGee’s terms. But aside from that, Stephen’s testimony falls short of providing any verbal withdrawal of the notice to terminate or anything else of substance upon which Stephens had a right to rely. The court clearly should have granted the motion for directed verdict on the basis of the evidence.

Turning to the inventory, here, too, the evidence fails to meet requirements of the law; see, Beck v. Neal, Supra. A number of factors substantiate this conclusion: (a) appellee’s testimony, rather than being unequivocal and decisive as the law requires, is more nearly the reverse (record, page 225):

Q. Let me back up. Ben Harrison assured you that if you bought this stock and bought further stock, if you had to get out of there, APCO or somebody would buy your stock?
A. I had mentioned, you know, to Ben, I said, “Hey, what if you all decide, you know, in two months that you don’t want me in here, or I don’t even want to be in here, am I going to be stuck, you know, with this?” And he said, “No, this is our policy, you know, we do this with all stations, that we don’t try. . .”
Q. . . .let me ask you right here, at the final determination here, whichever one that was, did they finally buy your stock?
A. No, sir.

This was the extent of Stephens’ testimony on this issue on direct examination, obviously wholly inadequate to create a duty of any kind, even a verbal contract, and certainly nothing in derogation of a written contract. On cross examination, appellee came nearer to meeting the requirements (record, page 242):

Q. I believe you also testified about the time that you had these negotiations with Mr. Harrison that you bought some equipment and inventory from the operator who was there before you took it over, is that correct?
A. Yes, sir.
Q. Did you buy that direct from the operator?
A. I bought it from Ben. I paid Ben the money, and Ben paid the. . .1 guess gave it to the operator, it did belong to the operator, yes, sir.
And at page 243:
Q. Did he tell you that APCO would buy it, or did he tell you that the next operator would buy it like you did?
A. He said that APCO would buy it, yes, sir.
Q. Why would he tell you that APCO would buy it from you, when APCO didn’t buy it from the man that you were taking over from?
A. I don’t know, sir, he was probably referring to that he would see that it got bought but, you know, I took it that he meant APCO.

Giing such testimony all the credence possible, it cannot measure up to the high standards required by the language of the law: clear, unquivocal and decisive.

We are impressed, too, with the fact that appellee’s counter claim makes no mention of any oral reformation or modification, although the pleading expressly deals with the inventory by alleging that Stephens was left with a stock of goods that he had no means of disposing of due to the short notice given on February 17, 1978. While the court cured this issue on its own, we think if appellee had been convinced of the merit of this part of his claim, it would not have been overlooked in the counter-claim.

Finally, it is noteworthy that although present and available (having been subpoenaed by appellee) Ben Harrison was not called to testify. The only inference to bé drawn from that is that Harrison’s testimony would not corroborate the appellee. National Life Co. v. Bennecke, 195 Ark. 1088, 115 S.W. 2d 855 (1938); U.S. Bond & Mortgage Co. v. Reddick, 199 Ark. 82, 133 S.W. 2d 23 (1939).

We need not deal with the argument of appellant that evidence was lacking as to any authority by Harrison to bind APCO, . except to observe that the burden of proof was on the appellee to prove that Harrison had either the express or the implied authority to bind APCO by oral agreements, and there was no pleading and no proof relative to his authority. Taylor v. Connell, 233 Ark. 440, 234 S.W. 2d 4 (1961); Southern Hotel Company v. Zimmerman, 84 Ark. 373, 105 S.W. 873 (1907).

Reversed and dismissed.

Penix, J., dissents.

Marian F. Pendí, Judge,

dissenting. I would affirm the trial court decision with respect to contractual liability but order a remittitur with regard to damages.

I believe the majority, in reversing this jury verdict, has mistakenly applied the parol evidence rule to this contract. While I readily admit parole evidence could not be introduced to alter or vary the terms of the written agreement, I find the evidence to be of an oral agreement supplementing the standard industry or adhesion contract signed by the parties. The Majority, in accepting APCO’s position the agreements were meged into the subsequent written contracts and that parol evidence is inadmissible to contradict, vary, or add to the terms of a valid and unambiguous written contract, has failed to recognize and apply the collateral agreement rule. Stephens testified an agent of APCO, Ben Harrison, as an inducement to encourage Stephens to locate his business in the APCO station, agreed APCO would repurchase Stephens’ inventory. This was in the event APCO should sell its property while Stephens occupied it. Stephens testified an additional inducement was the continued successful operation of an agreement with Jefferson Bus Lines. There was nothing in the written agreements about repurchase of inventory nor mention of the bus station operation.

A subsequent written contract supercedes previous agreements and expressions which directly relate to the same subject matter as the writing. However, promises which are collateral to an agreement, that is promises which are auxiliary to the main agreement are not merged into the written agreement. Stephens contends, and the jury so found, there were two sets of promises or transactions between him and APCO — one set oral, the other written. The determination whether the final writing is designed to supplant the oral agreement or to merely supplement it is a finding for the fact finder to make only after comparing the two.

John Lane d/b/a Fortune Cattle Co. v. Pfeifer, 262 Ark. 162, 568 S.W. 2d 212 (1978) held parol evidence to be admissible when offered to prove an independent collateral act about which a written contract is silent. See also, Lonoke Production Credit Association v. Pfeifer Milling Co. 268 Ark. 639, 595 S.W. 2d 223 (Ark. App. 1980). Stephens testified that he and APCO’s agent agreed APCO would repurchase Stephens’ inventory, stock and equipment; that Stephens would maintain the bus franchise, and that APCO induced Stephens to make improvements when APCO knew the sale of the property was imminent. The written agreement was silent as to whether APCO would repurchase inventory, stock, and equipment. Also it was silent as to the continued operation of the bus line. The written contract was a standard printed form prepared by APCO. Nothing in the oral agreements contradicted the terms of the written agreements. I believe there was evidence from which the jury could have concluded there was a collateral agreement. Hence, I would affirm the trial court’s allowance of the testimony regarding the collateral agreement.

While I would affirm the jury’s finding as to the collateral agreement, I do believe Stephens has not met his burden of proving damages. The question not only was whether there was an oral agreement to repurchase Stephens’ stock, inventory, fixtures or equipment, but whether Stephens had in fact suffered any damages resulting from the breach of the oral agreement. Stephens testified the stock which APCO refused to purchase was worth $4,525.00. Stephens introduced into evidence a detailed list of the stock and value of these items. The jury obviously believed there to be a collateral agreement:. This agreement required APCO to repurchase the stock from Stephens. The failure of APCO to repurchase the stock was a breach of contract. Stephens testified as to the value of the stock. This is evidence of the value or the damages sustained by the breach. An owner is permitted to testify as to value. This evidence can be accepted or rejected by the trier of fact. Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S.W. 2d 1 (1966).

APCO argues the figure given by Stephens does not reflect the salvage value of the stock. Since Stephens has failed to mitigate his damages, he can recover nothing. I might be inclined to agree with this position had APCO produced any evidence tending to show this. The Restatement, Contracts, § 336 states: (1) “Damages are not recoverable for harm that the plaintiff should have foreseen and could have avoided by reasonable effort without undue risk, expense, or humiliation.”

It is not infrequently said that it is the “duty” of the injured party to mitigate his damages so far as that can be done by reasonable effort on his part. Since there is no judicial penalty, however, for his failure to make this effort, it is not desireable to say that he is under a “duty”. His recovery against the defendant will be exactly the same whether he makes the effort and mitigates his loss, or not; but if he fails to make the reasonable effort, with the result that his injury is greater than it would otherwise have been, he cannot recover judgment for the amount of this avoidable and unnecessary increase. The law does not penalize his inaction; it merely does nothing to compensate him for the loss that he helped to cause by not avoiding it. 5 Corbin on Contracts, § 1039, p. 242-243.

Perhaps Stephens could have avoided some of his loss on the value of the stock, but who has the burden of proving he did not mitigate his damages? Once Stephens introduced his evidence with regard to damages, the burden shifted to APCO to prove the figure given did not reflect his true loss or what his loss might have been.

... If, on the other hand, the action is where a recovery of nominal damages may be had, even though no actual damage is recovered (as in trespass or breach of contract), then, if the defendant eliminates all the plaintiffs claims for actual damages by showing that the plaintiff by reasonable care could have avoided them, this does not go to the destruction of the cause of action nor prevent a recovery of nominal damages. . . . the doctrine of avoidable consequences is not considered a defense at all, but merely a rule of damages by which certain particular items of loss may be excluded from consideration. Being thus a matter in “mitigation,” it need not be specifically pleaded at all by the defendant.
Nevertheless, though by the better view the defendant need not plead it, he does have the burden of proof. He must bring forward evidence the plaintiff could reasonably have reduced his loss or avoided injurious consequences, and he must finally convince the jury of this in order to succeed on this issue. McCormick, Damages, § 34, p. 129-130 (1930).

The “duty” to reduce or minimize damages goes only to the amount of recovery. It is not an absolute defense to the injury.

The burden is on plaintiff to establish the elements measuring the amount of recovery. . . . The burden is on the defendant to establish his plea of recoupment or set-off or matters in reduction of damages. 17A C.J.S., Contracts, § 591, p. 1149-1150.
In accordance with the general rule, as to avoidable consequences, in case of breach of contract, defendant in an action for breach of contract is entitled to show any matters which go to reduce the amount of loss actually suffered by plaintiff. 25 C.J.S., Damages § 96, O. 1003.

APCO produced no evidence to dispute the damages figure given by Stephens. They did not even cross-examine him as to the figure or ask if he had attempted to mitigate the loss. We could not speculate as to the salvage value of the stock. Many of the stock items listed an APCO brand product. We could not automatically say this has a salvage value. There is simply no evidence the figure of $4,525.00 could have been reduced by reasonable effort by Stephens. Therefore, I would not say there was no substantial evidence from which the jury could have found the damages to be that stated by Stephens.

I might at this time point out that the majority makes much of the fact that Ben Harrison was in the courtroom and was never called to testify by the plaintiff. Ben Harrison, who was under subpoena, did not arrive at the hearing, until after the plaintiff had rested. Plaintiff had called all his other witnesses and rested subject to calling Mr. Harrison when he arrived. APCO agreed to proceed with its case and did so. After APCO rested its cases, the plaintiff made a decision not to call Harrison. The plaintiff evidently believed, as does this opinion writer, that he had adequately proven his case. At no time did APCO request they be allowed to reopen their case and call Mr. Harrison. It might be noted he was in the courtroom subject to being called to the witness stand by either party. One might infer APCO knew Harrison’s testimony would not supports its contentions.

I do find error, however, in the court’s submission to the jury on the issue of Stephens’ loss of the bus station and the answering service, and the issue of whether Stephens relied upon APCO’s agents’ statement he would work out arrangements for Stephens to have more time to find another location. The question is not whether APCO had the right to terminate the written agreements with Stephens. This is apparent from the written contract. Rather, the question is did APCO, or its agent, verbally withdraw the notice to terminate or make statements which encouraged Stephens not to remove his property or to relocate his business thereby resulting in his losing the bus franchise and answering service business. From the record, I find Stephens called APCO’s agent Hammett and told him he had to have more time to look for another place to locate the bus station. Hammett asked Stephens how much time he needed and told him he would send two men to talk to Stephens about the problem. I find this to be a far cry from establishing liability in APCO in causing any damages resulting from the loss of the bus franchise. I find the evidence was insufficient to go to the jury and the Court erred in not directing a verdict for APCO. St. Louis I. M. & S. Ry. Co. v. Coleman, 97 Ark. 438, 135 S.W. 338 (1911).

I do not believe Stephens proved to what extent he was damaged by APCO. The only evidence I find as to the cause of Stephens’ loss of the bus franchise and the answering service was the locking of the pumps by Kerr-McGee representatives — not by APCO. I find no evidence going to show that agents of APCO caused the loss of the bus franchise. There is no evidence establishing APCO’s liability in this matter. I believe the Court erred in submitting this matter to the jury.

Finding there to be error with regard to the bus franchise and the answering service, I would reverse the denial of the directed verdict in favor of APCO with regard to these elements of damage. The only element of damage remaining is the repurchase of the stock. I would affirm the finding of liability on the condition Stephens accept a remittitur to $4,-525.00.

For the reasons stated above, I respectfully dissent.


author: James H. Pilkinton, Judge.

text:
    Wayne PYLES, Employee, v. TRIPLE F. FEEDS OF TEXAS, INC., Employer, and CRAWFORD AND COMPANY, Insurance Carrier
    CA 80-210
    606 S.W. 2d 146
    Court of Appeals of Arkansas
    Opinion delivered October 15, 1980

      Boyett & Morgan, P.A., by: Comer Boyett, Jr., for appellant.

      Bailey, Trimble & Pence, by: Rick Sellars, for appellees.
   James H. Pilkinton, Judge.

Wayne Pyles was an employee of Triple F. Feeds of Texas, Inc., when he suffered a back injury on October 22, 1976. The injury is admittedly compensable. The carrier paid temporary total disability benefits from the date of the injury until December 31, 1976. The Commission found that claimant’s healing period did not end until January 3, 1978, and fixed his degree of permanent disability as of that date. The Commission, however, failed to order the carrier to pay temporary disability of any amount during the period from December 31, 1976, to January 3, 1978, the end of the healing period when the degree of permanent disability was fixed.

The decision of the Arkansas Workers’ Compensation Commission was affirmed by the Circuit Court of White County, Arkansas; and claimant has appealed from that part of the circuit court order denying claimant compensation during the entire healing period.

After the injury appellant saw Dr. Olen Bridges and took ultrasonic treatments. Several days later, Dr. Bridges referred him to Dr. Thomas Fletcher. Appellant was then hospitalized for one week and received physical therapy, traction, further ultrasonic and other treatments. He continued physical therapy on an out-patient basis. After some treatment appellant testified that he felt better and sought employment with Helena Chemical Company, even though he still had some numbness in his leg. He said that he tried the job with Helena Chemical, but it required travel in his car and that his condition gradually deteriorated. Appellant testified that he had made up his mind he would not continue in the employment with Helena Chemical and, almost simultaneously with that decision on his part, Helena Chemical terminated its activities in Arkansas and he was out of a job witout having to actually quit. Appellant testified that during this period of time he was taking medication prescribed by Dr. Bridges. He also admitted signing up for unemployment compensation because, as he put it, “I thought there was some type of job I might be qualified for but there was nothing that I was able to do, and in August (1977) I attempted to go into the real estate business.” Appellant further testified that during this period of time he made inquiries for placement in other agricultural concerns but no potential employer would hire him after learning of his injury. He continued home exercises on doctor’s instructions and was still taking drugs at the time of the hearing. For several years appellant has held a salesman’s license in real estate. He testified that he made approximately $850.00 gross during his real estate career but his expenses exceeded the amount earned. Appellant said that he had been living off the equity of the sale of his home and on loans from his family. He testified that as a result of his back injury he was unable to work in any type of job in line with his training. He said that the lower part of his back was numb and this numbness increases when his activities increase. He testified that he could not lift anything of substantial weight, bend over, turn or twist without pain.

The carrier controverted temporary total disability payments to appellant during the time from December 31, 1976, to January 3, 1978, on the ground that he was employed or seeking employment during that period of time. The permanent partial disability benefits were determined as of January 3, 1978, and are not involved in this appeal. Therefore, the sole issue presented for our determination concerns the extent to which the appellant is entitled to temporary total disability compensation during the healing period.

It is the appellant’s position that his eligibility for temporary total disability benefits is solely a medical fact question. The Commission found that the healing period did not end until January 3, 1978, and the uncontradicted medical testimony is to that effect. Appellees, to the contrary, take the position that temporary total disability benefits are intended for actual wage losses, and point to the statutory provision of the Workers’ Compensation Act, Ark. Stat. Ann. § 81-1302(d) (Repl. 1976), which provides:

Disability means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.

The Arkansas Supreme Court, in dealing with a somewhat similar question, but involving a scheduled injury, construed our Workers’ Compensation Act in International Paper Company v. McGoogan, 255 Ark. 1025, 504 S.W. 2d 739 (1974). It is well settled that courts must construe the applicable portions of the Workers’ Compensation Act liberally in favor of the claimant, resolving doubtful cases in favor of the employee, and in keeping with the' beneficial and humane purposes of the act. Temporary total disability for the entire healing period was found to be due, although claimant in International Paper Company v. McGoogan, supra, was a student and was in school during a part of the healing period. We think that the case now before us is controlled by the rationale of International Paper Company v. McGoogan, supra.

Appellee argues that § 81-1313 (c) which was involved in the McGoogan case dealt with a scheduled injury and that the subsection on scheduled injuries specifically provides that an injured employee (who sustains a scheduled injury) shall receive compensation during the healing period. Appellee points out correctly that subsection (d) of § 81-1313 does not contain language specifically referring to the healing period. The language contained in subsection (d) states:

A permanent, partial disability not scheduled in subsection (c) hereof, shall be apportioned to the body as a whole, which shall have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.

Appellee thus argues that since subsection (d) does not specifically provide that compensation shall be paid to the injured employee for the healing period, the Commission correctly refused compensation to appellant for the period of December 31, 1976, through January 3, 1978. The reasoning of appellant in this regard is difficult to follow. In reviewing subsection (f) of § 81-1313 which relates to second injury, under subsection (2)(ii) we find that the Act presently provides:

If the subsequent injury is one that is not scheduled under Section 13(c) of this Section, the injured employee shall be paid compensation for the healing period and for the degree of disability which would have resulted from the subsequent injury if the previous disability had not existed. (Emphasis supplied)

It is not logical to believe that the Arkansas General Assembly under the provisions at the time of this hearing intended to treat unscheduled first injury cases differently from unscheduled second injury cases. Since subsection (d) refers back to subsection (c), and uses the word “compensation,” it obviously refers to compensation within the same meaning as previously used. This would include benefits to be paid during the healing period. While the wording of the act is not entirely clear, it seems more logical to ascribe to the Legislature an intent that an employee in Arkansas, suffering an unscheduled first injury, is to be paid compensation for the healing period as is done in case of a second injury or for a scheduled injury. As pointed out in City of Fort Smith v. Brewer, 255 Ark. 813, at 819, 502 S.W. 2d 643 (1973), even though it is not for us to pass upon the logic or wisdom of a clearly expressed legislative intention, we should never construe an act, which does not state the intention in clear and unambiguous terms, to reach an illogical result. The act clearly does not prohibit the controverted payment. Had the drafters of our Workers’ Compensation Act intended such a result, as claimed in the case at bar, appropriate language could have easily removed any doubt by so stating.

Temporary disability is defined as the healing period following an injury. It exists until the employee is as far restored as the permanent character of his injury will permit. Blair, Workmen’s Compensation Law, § 11:02 (1974). Temporary disability is a separate and distinct disability from any permanent disability and may be compensated separately. See McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W. 2d 440 (1962), which was cited with approval in International Paper Company v. McGoogan, supra, where the Tennessee court held that temporary total disability benefits are payable without interruption from the time of the injury to the time at which the degree of permanent disability is ascertainable.

We recognize that subsection (b) of § 81-1313 of the Arkansas act provides for temporary partial disability, and it might be argued that this subsection may also apply during the healing period. There are cases in other jurisdictions which hold that if an employee is able to do some work in gainful employment while still suffering from the effects of his injury, his total disability is regarded as partial. However, if during the period while the body is healing, the employee is unable to perform remunerative labor with reasonable consistency and without pain and discomfort, his temporary disability is deemed total. See Blair, Workmen’s Compensation Law, supra, and cases cited therein. The evidence in this case clearly shows that whatever work appellant did during the period in question for Helena Chemical, he experienced pain in the performance of his work. There is no substantial evidence here which would justify the turning of appellants’ determined efforts to overcome his physical handicaps into a forfeiture of compensation during the healing period.

We are convinced that it was error to deny appellant compensation for the entire healing period. The judgment is therefore reversed and remanded with instructions to the circuit court to further remand the case to the Arkansas Workers’ Compensation Commission with directions to award appellant temporary total disability for the entire healing period.

Reversed and remanded.

      Appellant went to work for Helena Chemical Company in January, 1977, and was employed for about six weeks.


author: James H. Pilkinton, Judge. Steele Hays, Judge,

text:
    Medora S. JENNINGS v. NATIONAL BANK OF COMMERCE OF PINE BLUFF, Executor of the Estate of Dorothy L. SIFFORD
    CA 80-213
    606 S.W. 2d 130
    Court of Appeals of Arkansas
    Opinion delivered October 15, 1980
    Rehearing denied November 5, 1980

      Wright, Lindsey & Jennings, for appellant.

      Brockman & Brockman, for appellee.
   James H. Pilkinton, Judge.

This case involves the construction of a will. Mrs. Dorothy Sifford of Pine Bluff, Arkansas, died on November 29, 1978. Her will, dated March 29, 1976, was admitted to probate on December 1, 1978. On June 25, 1979, appellant Medora S. Jennings filed a petition to construe paragraph X of the will, which provides:

I give, devise, and bequeath 18 1/6 shares of common stock of the Gloster Lumber Company, of Gloster, Mississippi, and also any right, title or interest which I may have in the Lester Land Company, Inc. of Camden, Arkansas, including any real or personal property owned by the corporation in the State of Arkansas, and any and all real or personal property passing to me pursuant to the Last Will and Testament of J. Gaylord Sifford, my deceased husband, his estate having been probated in Jefferson County, Arkansas, to Medora Sifford Jennings, TO HAVE AND TO HOLD the same absolutely and in fee simple.

J. Gaylor Sifford had been a stockholder in Lester Mill Company, which was dissolved in 1932 and all of its assets were conveyed to Lester Land Company, Inc., of Camden, Arkansas. Mr. J. Gaylord Sifford received and owned 23.33 shares of stock in Lester Land Company, the successor corporation. Upon his death in 1934 this stock passed under his will to Dorothy Sifford, his wife. In 1944 the Lester Land Company was dissolved and the land owned by it was transferred to a trust for the individuals who had been the former stockholders. Mrs. Dorothy Sifford then held a 23.34/406 interest in the trust.

On October 13, 1978, Mrs. Sifford assigned all her rights, title and interest in the trust (which had succeded to the assets of the former Lester Land Company, Inc., consisting of land or an interest in land) to Mary Daniel of Camden and to Medora S. Jennings, the appellant here, for the cash consideration of $66,825. Appellant’s pteition requested that the court construe paragraph X of the will of Dorothy Sifford, deceased, to vest the ownership of the $66,825 cash proceeds in her.

This appeal is from a decision of the Jefferson County Probate Court finding that paragraph X of the will provided for a specific bequest to appellant which was adeemed by the sale by Mrs. Sifford of her trust interest on October 13, 1978.

The common stock of the Gloster Lumber Company is not involved in this appeal. The question involved on this appeal is what effect should be given to the language in paragraph X pertaining to the Lester Land Company, Inc., and more specifically the following language:

. . . including any real or personal property owned by the corporation in the State of Arkansas, and any and all interests which I may own in any and all real or personal property passing to me pursuant to the last will and testament of J. Gaylord Sifford, my deceased husband ... to Medora Sifford Jennings, TO HAVE AND TO HOLD the same absolutely and in fee simple.

The issue here is whether the aforesaid specific bequest to appellant was adeemed by the sale of the trust interest during the lifetime of the testatrix. In our opinion the issue presented is controlled and must be resolved against appellant under the principles announced in Mee v. Cusineau, Executrix, 213 Ark. 61, 209 S.W. 2d 445 (1948). In that case the Arkansas Supreme Court said:

At § 341, 28 R.C.L. 345, appear statements of the law to the following effect. The distinctive characteristic of a specific legacy is its liability to ademption. If the identical thing bequeathed is not in existence, or has been disposed of so that it does not form a part of the testator’s estate, at the time of his death, the legacy is extinguished or adeemed, and the legatee’s right are gone.

The Court then set out the basis for the above rule of law:

The reason for this rule as stated in the numerous cases cited in the note to § 543, 68 C.J. 844, is that as the testator no longer owns the property specifically devised, there is no property for the devisee to take, and also that subsequent conveyance of the property by testator after having made a specific devise of it indicates conclusively a change of testimentary intent as to that property.

The above reasoning is applicable to the facts of this case because the thing bequeathed at the time the will was made was an interest in land, subject to a trust. The wording of paragraph X of the will does not include the proceeds. Mrs. Sifford did not own the land specifically devised at the time of her death. It had been sold by her for a cash consideration before her death, and she took no actions whatsoever to indicate that she intended for the cash proceeds, which represented a change in form, to go to appellant under the terms of her will. Mrs. Sifford died, of course, without having made any change in her will. She permitted the trustee bank, in handling her affairs, to invest the money without any indication from her that it was intended to go to appellant at her death. The proceeds had been commingled with other funds.

There is a thorough discussion of ademption in the case of Pepka v. Branch, 155 Ind. App. 637, 294 N.E. 2d 141 (1973), and the applicable rules. Some of the Arkansas cases have not made it clear what rule was being applied, and have discussed at length In re Estate of Brown v. Schaffer, 145 Ind. App. 591, 252 N.E. 2d 142 (1969). However, it seems clear to us that the Arkansas Supreme Court, except for one case, has actually applied the more modern rule involving the form and substance test, discussed in Pepka v. Branch, supra, in determining whether there has been ademption, by extinction, of a specific legacy. It is also our opinion that the “Modern Rule” is more logical, less cumbersome, and easier to apply. Be that as it may, the result reached in the case before us would be the same regardless of which test was applied. Mrs. Sifford had a very substantial interest in the trust real estate at the time she made the will, and devised her interest in this realty to the named beneficiary, the appellant here. After she sold her interest in the trust land, she owned no interest whatsoever in the property; and, therefore owned no interest or equity in the property devised at the time of her death. The wording of the will did not include the proceeds from the land, and Mrs. Sifford took no action to indicate in any way that she intended the proceeds to pass to appellant under the will. Appellant correctly points out that the proceeds, i.e., the amount of money received from the land, are readily traceable into a certificate of deposit purchased by the trustee bank. We conclude, however, that this is immaterial under the facts here because there had been a change in the form of the devise, from land to money, and Mrs. Sifford did nothing subsequently to show that she intended to pass the proceeds to the original devisee. It follows that there was an ademption as to the bequest in question, and that the probate judge was correct in so holding.

The decree of the court below is therefore affirmed.

Hays, J., dissents.

Steele Hays, Judge,

dissenting. I am unable to arrive at the conclusion reached by the majority and must respectfully dissent. It is clear, as I view it, that the intention of the testratrix was that all property which had come to her under the will of her deceased husband should go to his nearest heir, the appellant. This is a natural and rather common testamentary motive of persons who, like the testatrix, have no lineal descendants.

This desire was expressed unequivocally in her will and was verbally affirmed a few weeks before her death, according to the testimony of a close friend of the testatrix, a witness who had no apparent pecuniary interest in the result.

When a clear testamentary intention is manifested, is reinforced by oral expression from the testatrix, and has the added virtue of being a natural and understandable testamentary disposition, as opposed to an extraordinary one, why should such an intention be circumvented by the application of an arbitrary rule of law? The guiding principle of construing wills is determining the intent of the decedent and that principle is paramount to all other rules of construction of testamentary instruments. McLane v. Chancey, Adm’r., 211 Ark. 280, 200 S.W. 2d 782 (1947); Lockhart v. Lyons, 174 Ark. 703, 297 S.W. 1018 (1927).

The majority has decided that an ademption occurred when the assets of the trust were sold and converted into a Certificate of Deposit, via a pre-existing savings account. But that conclusion puts form above substance and ignores the strong evidence of the testatrix’s intent on the one hand and the very purpose behind the venerable rule of ademption on the other. The purpose and design of the doctrine of ademption was to resolve the dilemma of dealing with legacies that had become nonexistent or so greatly altered as to have virtually disappeared.

Admittedly, there is considerable confusion in this area of the law, but when the texts and decisions are examined it is possible to state that it is where the property has lost its identity that ademption should be applied and where it still exists in traceable form then whether the rule of ademption applies becomes a question of determining the intention of the testator. Corpus Juris Secundum, Vol. 95, WILLS, § 177 (2) supports such interpretation:

While it is commonly held that, granted the disappearance of the subject matter by reason of some conduct of the testator, it is immaterial whether he intended to operate as an ademption, yet, where the conduct relied on is some change in its form or location, the property not having been altogether lost or extinguished as a separate and distinct item of his estate, the testator’s intention is recognized as being of significance on the question of what the property was that was intended to go by the will and consequently whether the change has so affected the substance of the gift as to cause an ademption, since it is a question of intention, determined in the light of rules of construction, what property forms the subject matter of a devise ... or legacy . . . Whether the form or location in which the property exists at the time of the will is merely descriptive or is so far linked with the existence of the gift that a change therein will work an ademption depends on such intention.

The doctrine of ademption, therefore, is an arbitrary means to disposing of a specific legacy in those instances where intention cannot be reliably determined and the legacy has undergone such a transformation that its indentity is lost. Where, as here, the property has undergone only minimal transformation and the evidence of an abiding intent is present and reasonably apparent, I can see no just basis for employing the technical rule of ademption to frustrate a clear testamentary desire. By concentrating on the complexity of whether the rule of ademption does or does not apply, attention is thereby diverted from the larger issue, namely, what did the testatrix intend? Her intention, quite obviously was to first provide funds readily available to meet the expenses of her illness; but equally obvious was the intention that whatever remained should go to the appellant under her will.

It might be possible to agree with the majority if the bequest in this case had been limited to the Lester Land Company, Inc. But the testatrix went further and added “... and any and all interest which I may own in any and all real or personal property passing to me pursuant to the last will and testament of J. Gay lor Sifford, my deceased husband ...” Thus, the language of the testatrix indicates a clear intention respecting the disposition of the Sifford property. The Supreme Court of Arkansas has shown its own disposition to treat the intention of the decedent as the crucial consideration, irrespective of ademption. The court considered words of similar import in Mitchell v. Mitchell, 208 Ark. 478, 187 S.W. 2d 163 (1945) and Mee v. Cusineau, Executrix, 213 Ark. 61, 209 S.W. 2d 445 (1948). In Mitchell, the court considered this language: “I ... bequeath all my stock and interest in E. E. Mitchell’s Company ... to my son . . .” The testator sold his stock in the E. E. Mitchell Company and bought other corporate stocks, the appellants arguing that the sale adeemed the bequest. The trial court reasoned that had the legacy been limited to “all my stock” an ademption would have occurred, but by adding the words “and interest in” the testator showed an intent to bestow the property upon his son, “irrespective of its physical form when the will became effective, provided indentity could be made definite . . Affirming the Chancellor, the Supreme Court stated:

Generally speaking, a change in the form of a security bequeathed does not of itself work an ademption. It must be shown that the testator intended to give specific securities of the form or nature mentioned in the will. See Corpus Juris, v. 69, p. 1012, and cases cited in Note 89- See, also, King v. Sellers, 194 N. C. 533, 140 S.E. 91; Wiggins v. Cheatham, 143 Tenn. 406, 225 s.W. 1040, 13 A. L. R. 169.

Similarly, in Mee v. Cusineau, Executrix, supra, on which the majority relies, the court carefully examined the language of the legacy to determine the intent and while an ademption was upheld with respect to a part of the legacy, it was rejected as to a part, based upon the court’s interpretation of the intention of the testatrix. The will made specific devise of real property “in which I have an equity or an interest ...” The court stated that had the testatrix devised the real property and nothing more had been said, an ademption would have occurred where the property was sold by her, but by adding the words “or interest in ...” the testatrix indicated broader intentions. Citing the Page on Wills, Vol. 2, Section 1336, Chapter on Ademption, the opinion states:

“If the terms of the will show that testator contemplates some change in the form of the gift, or even a sale and reinvestment of the proceeds, and that he intends to pass the proceeds, or the property in which the proceeds are reinvested, to the original beneficiary, full effect will be given to such provision. ... If testator gives the ‘proceeds’ of certain property, and it appears, from the terms of the will, that he gives such proceeds even if the property is sold in his life time, the beneficiary may have the proceeds as far as they can be traced.”

What seems to have been overlooked here is that the decision in Mitchell v. Mitchell, supra, places a two-fold burden upon the proponent of ademption, namely, to show a change in the form of the property bequeathed and a showing that the testator intended to give specific securities of the form or nature mentioned in the will. There is no showing by the appellees with respect to the second element of proof and the language of the will itself is convincing evidence that the testatrix intended the Sifford property, whether real or personal, to go to the nearest Sifford heir, the appellant.

I regret the result reached in this case as I believe the law gives strong support to achieving the intent of the testator and is loath to take liberties with that intent by technical rules of construction. I believe that has occurred in this instance.

      This case overruled In re Estate of Brown v. Schaffer, supra, in Indiana, and adopted the form and substance test.

        Williamson v. Merritt, 257 Ark. 489, 519 S.W. 2d 767 (1975), is the exception.


author: Marian F. Penix, Judge. Steele Hays, Judge,

text:
    ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT v. Billy Paul GODWIN, Deceased
    CA 80-281
    606 S.W. 2d 127
    Court of Appeals of Arkansas
    Opinion delivered October 15, 1980

      Robert L. Wilson, for appellant.

      Jones, Gilbreath & Jones, by: Kendall B. Jones, for appellee.
   Marian F. Penix, Judge.

This case involves' a determination of when the assessment of the twenty percent penalty for failure to pay an award may be imposed.

Billy Paul Godwin, deceased, was employed as a weight inspector by the Arkansas State Highway and Transportation Department. His duties required him to weigh trucks, collect taxes, issue permits, and check the registration of trucks. On July 29, 1977, the decedent noticed a truck turning around on the median near the station. The decedent got into his vehicle and pursued the truck. Upon stopping the truck, the decedent became ill and fell to the ground. He was taken to the Crawford County Hospital where he was pronounced dead on arrival.

Subsequently, Shirley Godwin filed a claim with the Arkansas Workers’ Compensation Commission seeking benefits for herself and two minor children. The respondent controverted the claim in its entirety. A hearing was held before an Administrative Law Judge on May 17, 1978 to determine compensability. The Administrative Law Judge decided the deceased had sustained an injury arising out of and in the course of his employment. The respondent appealed to the Full Commission. By an opinion dated March 23, 1979, the Full Commission upheld the decision of the Administrative Law Judge and awarded benefits to the claimant. No appeal was taken from this decision. Claimant received her first payment from the respondent on April 28, 1979 some 36 days after the Full Commission’s decision was rendered.

Claimant petitioned the Commission for a twenty per cent penalty for benefits accrued because the respondent had not made a payment within fifteen days of the award. At a hearing held on July 18, 1979 the Administrative Law Judge imposed the twenty percent penalty on the respondent for failure to make a timely payment. On appeal, the Full Commission adopted the Administrative Law Judge’s opinion. Respondent appeals.

Ark. Stat. Ann. § 81-1319(f) states:

Failure to pay award. If any instalment, payable under the terms of an award, is not paid within fifteen (15) days after it becomes due there shall be added to such unpaid instalment an amount equal to twenty (20) percentum thereof, which shall be paid at the same time as, but in addition to, such instalment unless review of the compensation order making such award is had as provided in section 25 [§ 81-1325].

The respondent argues to this Court, as it did to the Commission, the benefits do not become due until the order is final. The fifteen days within which the benefits must be paid does not begin to run until the order is final. The respondent contends the order did not become final until thirty days after the Full Commission’s opinion. In all, forty-five days are allowed to pay the award. Thus, the fifteen day period in which to pay the award had not elapsed when the claimant received her first instalment. In fact, there were nine days remaining. Cited as authority for this argument is Ark. Stat. Ann. § 81-1325(b) which reads:

A full compensation order or award of the Full Commission shall become final unless either party to the dispute shall, within thirty (30) days from the receipt by him of the order or award, petition in writing for an appeal to the Circuit Court in the county in which the accident occurred. .. . [Emphasis Supplied].

The fallacy of respondent’s argument is in the fact that it, as a state agency, was prohibited by statute from appealing the decision of the Full Commission.

From the effective date of this Act (March 19, 1963), the Workman’s Compensation Commission shall have exclusive jurisdiction, as herein limited, of all claims against the State of Arkansas and its several agencies, departments, and institutions, for personal injuries and deaths of employees and officers of the State of Arkansas and its agencies, departments and institutions, arising out of and in the course of employment or service, and occurring on or after the effective date of this act (March 19, 1963).
Awards for such injuries and deaths shall be made by the Workman’s Compensation Commission in the same amounts and on the same terms and conditions as if such injuries and deaths had arisen out of and in the course of private employment covered by the Workman’s Compensation Act (§ 81-1301 — 1349), and a procedure to be followed in the presentation, hearing and determination of such claims shall in all respects be the same as in claims for compensation for injuries and deaths arising out of and in the course of private employment covered by the Workman’s Compensation Act, except that the action taken by the Workman’s Compensation Commission with respect to the allowance or disallowance of any claim, in whole or in part, shall be final and binding upon all parties thereto, and shall not be subject to judicial review . . . Ark. Stat. Ann. § 13-1407 [Emphasis Supplied].

This ^respondent could not appeal the determination of the Full Commission. Ark. Stat. Ann. § 81-1325(b) does not state the award becomes final only after thirty days, but rather that it shall become final unless some action is taken by either or both parties to the dispute to prevent the order from becoming final. By law, the parties to this dispute were not able to take the action required to prevent the order from becoming final upon receipt. Hence, the respondent had fifteen days within which to pay the first instalment.

Finding there to be an untimely payment of an instalment, the twenty percent penalty must be imposed. The imposition of Ark. Stat. Ann. § 81-1319(f) is mandatory. Hence, the penalty is imposed on all benefits awarded by the Workers’ Compensation Commission order of March 23, 1979.

Finding the Full Commission to be correct as a matter of law, we affirm.

Affirmed.

Hays, J., dissents.

Steele Hays, Judge,

dissenting. The effect of the majority opinion is that workers’ compensation claimants in private employment must wait 45 days before the penalty provisions of Ark. Stat. Ann. § 81-1319(f) attaches, whereas claimants employed by the State of Arkansas must be paid within 15 days. While it is possible to arrive at this result by a literal reading of Ark. Stat. Ann. § 81-1325(b) and § 81-1319(f), both the letter and the spirit of Ark. Stat. Ann. § 13-1407, stand in opposition to such an interpretation. The latter statute provides that (with the exception of the right of appeal) the awards for injuries to State employees shall be “on the same terms and conditions” as private employment and, further, that the procedures shall “in all respects” be the same as in claims of private employment. This wording means the awards to public employees shall be paid at the same time as private employees and shall be in all respects identical, saving the right of appeal. I believe, therefore, that applying the penalty provision as has been done in this case is making a distinction between private claimants and public claimants that was never foreseen nor intended by the legislature.

      Ark. Stat. Ann. § 13-1407 was amended to delete the words: “except that the action taken by the Workmen’s Compensation Commission with respect to the allowance or dis-allowance of any claim, in whole or in part, shall be final and binding upon all parties thereto, and shall not be subject to judicial review . .This amendment became effective July 1, 1979. The prior version, however, governs the facts in this case.


author: Marian F. Penix, Judge.

text:
    Carol HARTSON v. CITY OF PINE BLUFF
    CA CR 80-40
    606 S.W. 2d 149
    Court of Appeals of Arkansas
    Opinion delivered October 15, 1980

      Brockman & Brockman, by: C. Mac Norton, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Marian F. Penix, Judge.

On October 25, 1979 Carol Hartson was in her car parked at the Pine Bluff Jefferson Square shopping center. She was parked in a space designated for parking. Mr. Brown was in his car moving in the through lane between the rows of parked cars. Ms. Hart-son moved forward in her car, pulling out of the parking space directly into the path of Mr. Brown’s car, causing his car to strike her car. Ms. Hartson was issued a traffic citation by the Pine Bluff Police Department. She was charged with the violation of failure to yield the right of way with accident. Ms. Hartson appeared in Municipal Court and pled not guilty November 7, 1979- The case was tried December 17, 1979. Ms. Hartson was found guilty and fined $25.00. Mr. Brown and a police officer appeared as witnesses. Ms. Hartson appealed the conviction and the Circuit Court affirmed. She appeals.

Ms. Hartson contends the Pine Bluff Police Department had no authority to issue her a traffic citation. Ms Hartson contends that under the Arkansas statutes dealing with traffic violations there is simply no authority for the issuance of citations on private parking lots. Ms. Hartson also contends there is no city ordinance authorizing citations on private parking lots. Basically, her contention is the parking lot is private property and therefore the statutes relating to the operation of vehicles upon highways could not apply.

The State argues the precise offense did not need to be stated prior to trial. A summons naming or briefly describing the offense is sufficient in the case involving violations of ordinances of cities or towns prosecuted in police or city courts, and that no written information or pleadings are required in prosecutions in which an indictment is not required. The State cites Ark. Stat. Ann. § 44-105 as support for this argument. It states:

Indictment Unnecessary — No indictment shall be necessary in prosecutions for violation of the by laws or ordinances of a city or town, nor in other prosecutions in police or city courts.

Therefore, the traffic citation which cited Ms. Hartson for failure, to yield the right of way served to apprise her of the nature of the change against her. The State then argues there are two other statutes dealing with driving a car with safety which would apply. While the argument with regard to an indictment being unnecessary may well be correct, there is a major fallacy in the State’s position. We can find no violation with which appellant can be charged. While there may well be civil liability on the part of Ms. Hartson for the accident, there is no criminal liability.

Ms. Hartson is charged with failure to yield the right of way. Ark. Stat. Ann. § 75-419 defines right of way as: “The privilege of the immediate use of the highway.” [Emphasis supplied] Ark. Stat. Ann. § 75-412 defines a highway as:

(a) STREET OR HIGHWAY. The entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public, as a matter of right, for purposes of vehicular traffic. [Emphasis supplied].

While the parking lot at the shopping center is open to the public for purposes of vehicular traffic, it is not open as a matter of right. This is a parking lot belonging to the owner of the shopping center. The public is there by permission of the owner. The definition of a private road is contained in Ark. Stat. Ann. § 75-4l2(b). It states:

(b) PRIVATE ROAD OR DRIVEWAY. Every way or place in private ownership and used for vehicular traffic by the owner and those having express or implied permission from the owner but not by other persons.

The parking lot would come under this definition, not that of a highway or street. Ms. Hartson was not on a highway. Therefore she cannot have failed to yield to one who had the privilege of immediate use of the “highway.”

The State argues the traffic citation served as notice to Ms. Hartson that her activity was a violation of the traffic laws of this state. More specifically she was on notice of what activity was the subject of the violation. The State argues Ark. Stat. Ann. § 75-617 was violated. This statute states it is a violation to “start a vehicle which is stopped, standing or parked unless and until such movements can be made with reasonable safety.” This argument must fail in light of Ark. Stat. Ann. § 75-420 which provides:

Provisions of act refer to vehicles upon the highways — Exceptions. — The provisions of this act relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except:
1. Where a different place is specifically referred to in a given section.

Since § 75-617 does not refer to a place other than a highway or street, we must assume it only applied on a highway or street. Once again, we note the private parking lot does not come under the definition of a highway or street.

While we agree with the State Ark. Stat. Ann. § 43-414.1 allows a police officer to enter the parking areas of private business establishments to “discover, investigate and effect the arrest of persons thereon violating any state or local law to the same extent as if such person or persons were upon the public streets or highways,” there must first be a violation for which an arrest can be made.

Finding no statute to have been violated, we must reverse and dismiss.

Reversed and dismissed.