text:
    Robert Mark HIGGINS v. ELLIOTT’S FEED, SEED & FERTILIZER CO.
    5-5160
    451 S. W. 2d 884
    Opinion delivered April 6, 1970

      Rieves & Rieves, for appellant.

      Schieffler ir Murray, for appellee.
   J. Fred Jones, Justice.

A truck and trailer rig belonging to Elliott’s Feed, Seed & Fertilizer Co., Inc. was damaged in a collision with a vehicle belonging to Robert Mark Higgins. Elliott’s, Inc. sued Higgins in the St. Francis County Circuit Court for $2,686.43 in damages based upon the difference in the market value of the vehicle immediately prior to and immediately after the collision. Elliott’s, Inc. subsequently amended its complaint alleging and praying as follows:

“That as a direct and proximate result of the defendant’s negligence, the plaintiff sustained damages in the amount of Three Thousand Seven Hundred Twenty and No/100 Dollars ($3,720.00) as a result of the lack of business earnings due to the out of service time for the tractor and trailer being out for repairs. That the Three Thousand Seven Hundred Twenty Dollars ($3,720.00) is in addition to the Two Thousand Six Hundred Eighty-Six and 43/100 Dollars ($2,686.43), which represents actual property damage to the tractor and trailer.”

Higgins demurred to so much of the amended complaint as pertains to the loss of earnings as an element of damage and the demurrer was overruled by the trial court. Elliott’s, Inc. conceded in its brief that the trial court was correct in overruling the demurrer, so the question on demurrer is no longer involved in this case. At the close of the evidence offered by Elliott’s, Inc., Higgins filed a motion for directed verdict as to the elements of alleged damages because of loss of use of the truck, and this motion was also overruled by the trial court. The case was submitted to the jury on interrogatories and over the objection of Higgins the court gave to the jury instruction 18, as follows:

“If an interrogatory requires you to assess the damages of Elliott’s, Inc., you must then fix the amount of money which will reasonably and fairly compensate Elliott’s, Inc., for any of the following elements of damages sustained:
1. The difference in the fair market value of its 1964 International trac tor-trailer immediately before and after the occurrence. In determining this difference you may take into consideration the reasonable cost of repairs.
2. The value of any earnings or profits or working time lost. Whether any of these elements of damages have been proved by the evidence is for you to determine.”

On special interrogatories the jury found that Elliott’s, Inc. had suffered total damages in the amount of $4,936.43; that Higgins was guilty of 85% of the negligence causing the damage and that Elliott’s, Inc. contributed 15%. The trial court diminished the total amount of damages by 15% and entered judgment in favor of Elliott’s, Inc. against Higgins for $4,195.96 and costs. Higgins has appealed to this court and relies on the following point for reversal:

“The court erred in refusing to direct a verdict on that portion of the complaint pertaining to a loss of business earnings and in giving instruction numbered 18 (2) over appellant’s objection.”

Higgins argues in his brief that when the actual cost of repairs in the amount of $2,686.43 is subtracted from the total amount of damages found by the jury in the amount of $4,936.43, the resulting amount of $2,-250 was obviously awarded by the jury for lost business earnings; and, Higgins contends that this court on appeal, should reduce the judgment by that amount. In support of the error alleged in overruling his motion for a directed verdict, Higgins only argues that the testimony relating to loss of use is too speculative and conjectural to support a verdict including that element of damage. We agree with Higgins that the trial court erred in refusing to grant the motion for a directed verdict on the record of evidence presented here, and we are also of the opinion that the record requires a reduction in the amount of the judgment if it is to be affirmed.

Mr. Elliott testified that he owns and operates the corporation bearing his name and that the damage to the truck was repaired at a cost of $2,686.43. He testified that the corporation owned another truck besides the one that was damaged and that he had a verbal contract with Riviana Foods to use both trucks in hauling rice from Carlisle, Arkansas, to Memphis, Tennessee. He testified that because of the damage to the truck, half of his “fleet” was put out of business. He says that the damaged truck was grossing $100 per day; that it was out of operation for a period of 45 days while being repaired, and that his net loss in business profits during this period, including his loss in hauling his own rice, amounted to $3,720.

Mr. Brown, who was in charge of the repairs on the truck, testified that the repairs were delayed “possibly three weeks at least” because a part needed in repair of the truck was ordered from Michigan and the wrong part was sent. No one would seriously contend that Higgins should be liable for the negligence of whoever was responsible for the delay caused by the wrong part being sent from Detroit.

As we view the evidence, Mr. Elliott’s testimony as to loss of business, stated a conclusion not supported by competent substantial evidence. To permit such conclusion to stand as evidence substantial enough to support a judgment, would be giving the injured party an unfair advantage over a tort feasor amounting almost to blank check authority, which the law could not long tolerate nor industry long endure.

The insubstantial nature of Mr. Elliott’s testimony as to lost profits, is most evident from his answers on cross-examination, so we quote rather liberally therefrom. On cross-examination Mr. Elliott testified, in part, as follows:

“Q. Mr. Elliott, what was the terms of your contract with Riviana Foods?
A. I was to haul all their rough rice from Carlisle to Memphis that I could, and then if they needed any extra trucks, or I couldn’t get it there quick enough, or enough, they would hire a few extra trucks to help until we got caught up.
Q. Now, were you to do this every day of the year?
A. Well, anytime they wanted me to haul; usually that time of year we was real busy, because it was right after harvest, and they was needing to move rice into Memphis, into the mill.
Q. Do you have an accurate record of the number of days you hauled for Riviana in 1967?
A. Well, no; I do have it in my office, but I do know we are real busy hauling in December, January, and February.
Q. You are busy hauling, but have you consulted those records before coming in here today?
A. Yes, sir, I looked at them, but I can’t remember just what it was.
Q. Well, then, if you will, tell us how you arrived at this figure of $3,720?
A Well, my truck was grossing, one day we would haul one load, and next day we would get two, and my truck was averaging grossing $100.00 a day, and my truck was out 45 working days, besides the hauling that I missed for my own business.
Q. Now, over that period of 45 working days, how many loads did you turn down for Riviana, how many days did they request you to haul grain for them that you had to say you could not do it?
A. During this time?
Q. Yes.
A. Well, I just told them I couldn’t run this one rig, I run my other rig, and they hired more trucks and put on the haul.
Q. Where did they hire those trucks?
A. I don’t remember; I think Stuttgart, maybe over at Hickory Ridge; they hired some out of both areas.
Q. But, you have really no idea, with no degree of certainty, can you tell us how many actual loads you had to turn down as a result of this truck being out of commission?
A. Well, no, sir, but my truck, I have the record to prove that my other truck run most all of this time.
Q. Where are those records?
A. They are in my office.
Q. And those records have what you have used to come in here and testify with today?
A. Well, yes, sir.”

As to the truck operating expense, in arriving at net profit, Mr. Elliott testified on cross-examination as follows:

“Q. Now, if you will, I believe you testified that you arrived at this on the basis of grossing $100.00 a day fo$ 45 working days; now, that is a total of $4,500; you have testified that you lost $3,720; that is $780 difference; tell the jury how you arrived at that $780.
A. Well, that was my expenses, plus I figured in there what I lost because I was running the truck for myself on Saturdays, and sometimes Sundays, that I lost; I had to have it hired.
Q. Well, give us a breakdown on the $780.00.
A. Well, that’s the driver, gas, plus this other that I lost, that I couldn’t haul for my own firm.
Q. How much does it cost for fuel on this run from Memphis to Carlisle and back?
A. Well, off-hand I don’t know.
Q. How much do you have to pay for a driver from Carlisle to Memphis and back?
A. Well, that depends, too; you have to pay $1.60 an hour; it’s hard to tell, sometimes if they get unloaded they are not gone near so long.
Q. Well, what was your average driver expense per trip from Carlisle to Memphis and back?
A. I don’t remember.
Q. You don’t know?
A. No, sir, I don’t.
Q. Okay. Now, how much did your truck depreciate, that truck from Carlisle and back?
A. I don’t know, I really don’t.
Q. Well, then,, will you tell us how you have come in here and told us it cost you $780.00?
A. Well, I took a pencil and piece of paper and figured it out, but I don’t remember.
Q. Can’t you tell us how you figured it out?
A. Well, I figured my fuel, my driver, my expenses on it.
Q. But, you don’t remember what it takes for fuel, what it takes for driver?
A. No off-hand I don’t.
Q. When did you do this figuring?
A. Oh, I’ve done it several times off and on.
Q. Since the lawsuit was filed?
A. Well, I’ve done it before that.
Q. You have?
A. Yes, sir.
Q. And yet, this being your business, you can’t give us any idea as to what any of these items cost?
A. Not off-hand I can’t.”

Harmon v. Frye, 103 Ark. 584, 148 S. W. 269, was a suit on a breach of contract and the appellee was allowed to show lost profits as an element of damage. In that case, quoting from- 13 Cyc. 53-54, this court said:

“Such damages ‘must be certain both in their nature and in respect to the cause from' which they proceed. It is against the policy of the law to allow profits as damages, where such profits are remotely connected with the breach of contract alleged, or where they are speculative, resting only upon conjectural evidence, or the individual opinions of the parties or witnesses.’ 13 Cyc. 53, Spencer Medicine Co. v. Hall, 78 Ark. 336; Beekman Lbr. Co. v. Kittrell, 80 Ark. 232; Hurley v. Oliver, 91 Ark. 433.”

In Sumlin v. Woodson, 211 Ark. 214, 199 S. W. 2d 936, there was an attempt to recover lost profits as an element of damage in an unlawful detainer case, and in that case this court said:

“. . . When a party embarks on the enterprise of recovering anticipated profits, he must present a reasonably complete set of figures, and not leave the jury to speculate as to whether there would have been any profits.”

See also Missouri & Arkansas Railway Co. v. Treece, 210 Ark. 63, 194 S. W. 2d 203; Eagle Properties v. West & Co., 242 Ark. 184, 412 S. W. 2d 605. .

The only testimony offered in support of . a showing of lost profits in the case at bar was the testimony of Roy Elliott, owner and operator of Elliott’s, Inc. Mr. Elliott’s testimony is based on computation and business records, which were not introduced into evidence, but which form the basis for his conclusion as to the amount of his lost earnings. By quoting at length from Mr. Elliott’s testimony, we justify our failure, and avoid the necessity, of attempting to analyze it. We are of the opinion that the evidence as to loss in profits from the loss of use of Elliott’s truck and trailer, rested on speculation and conjecture and a verdict of damages rendered thereon cannot stand.

Elliott’s, Inc. has shown damage in the actual cost of repairs to its diesel tractor-trailer rig in the amount of $2,686.43. It is, therefore, entitled to judgment for that amount diminished by 15%, attributable to its own negligence. Elliott’s, Inc. is entitled, therefore, to a net judgment in the amount of $2,283.47. The judgment rendered by the trial court was for $4,195.96, which amounts to $1,912.49 more than Elliot’s, Inc. is entitled to under the evidence of record in this case. If Elliott’s, Inc. wishes to remit the sum of $1,912.49 within 17 days, the judgment for the remaining $2,-283.47 will be affirmed, otherwise this case will be remanded to the St. Francis County Circuit Court for a new trial.

Affirmed on condition of remittitur.


source: Caselaw Access Project

author: Conley Byrd, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Sam R. FLOYD v. ARKANSAS STATE BOARD OF PHARMACY
    5-5225
    451 S. W. 2d 874
    Opinion delivered April 6, 1970

      Harper, Young & Smith, for appellant.

      Warren & Bullion, for appellees.
   Conley Byrd, Justice.

Appellant Sam R. Floyd was charged by appellee, the Arkansas State Board of Pharmacy, with a violation of Ark. Stat. Ann. § 82-1115(k) (Repl. 1960), and Ark. Stat. Ann. § 82-2107 (Supp. 1969), in that he sold to Mrs. Ethel Draper of Ferndale, Arkansas, thirty tablets of Equanil without a valid prescription and also Dexamyl, a drug covered by the terms of the Arkansas Drug Abuse Control Act, without a valid prescription. The Board found, “[T]hat Sam R. Floyd is guilty of the violation of the pharmacy laws of the State of Arkansas. ...” and suspended his license to practice pharmacy for sixty days.

A review of the suspension was sought in the circuit court pursuant to the Administrative Procedures Act, Ark. Stat. Ann. § 5-713 (Supp. 1969). The circuit court found that the order of the Board failed to separately set forth its findings of fact and conclusions of law, contrary to the provisions of Ark. Stat. Ann. § 5-710 (Supp. 1969), and remanded the matter to the Board to reduce to writing its findings of fact and of law, specifically stated.

For reversal appellant here contends that the circuit court erred in attempting to remand this cause to the Board to correct its void order. We do not reach the merits of appellant’s contention. As we pointed out in Nolan Lbr. Co. v. Manning, 241 Ark. 422, 407 S. W. 2d 937 (1966), the circuit court’s order of remand for further proceedings is not an appealable order— i. e., it is not a final disposition of the case for purposes of appeal.

The appeal is dismissed.

Jones, J., not participating.

FIarris, C. J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent because I think that the order of the circuit court is appealable. I agree that not every order by a circuit court remanding a case to an administrative agency is appealable. The peculiar circumstances which obtain here make this particular order a final one, in my opinion.

It was stipulated in the circuit court that the scope of review there was controlled by Ark. Stat. Ann, § 5-713(h)(l) through (6) (Supp. 1969). These sections authorized the court to reverse or modify if substantial rights of the petitioner seeking judicial review had been prejudiced because the administrative findings, inferences, conclusions or decisions of the State Pharmacy Board were in violation of constitutional or statutory provisions, were made upon unlawful procedure, or were arbitrary, capricious or characterized by abuse of discretion. The order of the board was attacked upon those grounds in the circuit court.

The Arkansas Administrative Procedure Act, Ark. Stat. Ann. § 5-701 — 714 (Supp. 1969), governs the proceedings of the State Board of Pharmacy. That act requires the inclusion, and separate statement, of findings of fact and conclusions of law in every final decision of the board. It also requires that findings of fact in statutory language be accompanied by a concise and explicit statement of the underlying facts supporting them. Ark. Stat. Ann. § 5-710(b) (Supp. 1969). The pertinent findings of the board were:

“* * * The Board further finds that Sam R. Floyd is guilty of the violation of the pharmacy laws of the State of Arkansas and that such violation of the pharmacy laws of the State of Arkansas is sufficient to justify the suspension or revocation of Sam R. Floyd’s license to practice pharmacy in the State of Arkansas.”

The circuit judge, as a basis for his remand of this case to the State Board of Pharmacy, found that the board’s order was “not in conformity with, and it therefore is in violation of, within the meaning of subsection [Ark. Stat. Ann. § 5-713] (h)(1), Art. 5-710 subsection (b), which requires findings of fact and conclusions of law separately stated.” He also held that the order on its face stated conclusions only. The circuit judge also found that this deficiency in the order constituted unlawful procedure. Appellant argued that the deficiency rendered the order void and required outright reversal of the board’s action rather than remand in order that the board might reduce its findings of fact and law to writing, specifically stated.

As pointed out by the circuit judge, the board proceedings were had under a penal statute. Ark. Stat. Ann. § 72-1040 (Supp. 1969). Deprivation, even temporarily, of the right to engage in an occupation, for which one must be licensed and registered, is certainly penal in nature. The thrust of appellant’s argument is that the board’s failure to find that there was a “wilful violation” of pharmacy laws by Floyd, as required for suspension by Ark. Stat. Ann. § 72-1040 (Supp. 1969), shows that its action was not based on legal requirements. Appellant also urges that the want of such a finding actually constituted a finding that there was no wilful violation. Thus, says appellant, the order was not only void because it was in excess of the board’s authority, it was in violation of appellant’s constitutional “due process” rights. Further, argues appellant, because the order is void, it is not now subject to correction, and the circuit court was without power to remand it for curative purposes.

While it may be said that the circuit court’s judgment is not final in the sense that it has not yet affirmed or reversed the board action, still it has, so far as that court is concerned, finally foreclosed the argument made by appellant, i. e., that he is entitled to have the proceedings declared void and his suspension lifted. In this respect the court’s judgment is a final disposition of that phase of the case, and as such appeal-able. In Parker v. Murry, 221 Ark. 554, 254 S. W. 2d 468, we held that a chancery court’s allowance of an intervention was appealable because it finally disposed of a distinct and severable branch of the case, even though the suit was not ended. See also Davie v. Davie, 52 Ark. 224, 12 S. W. 558; Flanagan v. Drainage District No. 17, 176 Ark. 31, 2 S. W. 2d 70.

There is another and, in my opinion, more cogent reason why this order is appealable. We have long recognized that a judgment is final and appealable if it, in form or effect, operates to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term. City of Batesville v. Ball, 100 Ark. 496, 140 S. W. 712; Johnson v. Johnson, 243 Ark. 656, 421 S. W. 2d 605; Allred v. National Old Line Ins. Co., 245 Ark. 893, 435 S. W. 2d 104. It is now beyond the power of any court to restore Floyd to his position at the time of the circuit court hearing, insofar as the objection he has made and now makes to the remand of the proceedings. His position is analagous to that of one who moves for dismissal of a criminal charge because of failure of the state to bring him to trial without the prescribed time or upon the grounds of double jeopardy. In those circumstances, we have said that orders denying such motions are appealable because no order or judgment that any court could have made thereafter would have placed the movant in the position or given him the rights he was entitled to at the time the order was made by the trial court. Ware v. State, 159 Ark. 540, 252 S. W. 934; Jones v. State, 230 Ark. 18, 320 S. W. 2d 645. Appellant is in a like position.

I would pass upon the merits of appellant’s argument now. I do not agree that the obvious deficiency renders the order void. It is merely not in conformity with the governing statute. That statute authorizes a reviewing court to remand a case for further proceedings. Ark. Stat. Ann. § 5-71S(h) (Supp. 1969). The deficiency here is not one relating to the board’s jurisdiction. Its proceedings were simply incomplete in that its order was incomplete, for lack of specificity in findings. The drafting and entry of its order of adjudicadon in any matter before the board is a part of its proceedings. The completion or correction of that order constitutes “further proceedings.” We have recognized the broad discretion of trial courts to remand proceedings to administrative boards and to set out particular deficiencies in their proceedings. C. H. Nolan Lumber Co. v. Manning, 241 Ark. 422, 407 S. W. 2d 937. I would sustain the action of the trial court because it is appropriate whenever an administrative body has made invalid or inadequate findings. See such cases as: Pennsylvania State Athletic Commission v. Bratton, 177 Pa. Super. 598, 112 A.2d 422 (1955); Love v. Mississippi State Board of Veterinary Exam., 230 Miss. 222, 92 So. 2d 463 (1956); Federal Power Commission v. Idaho Power Co., 344 U. S. 17, 97 L. Ed. 15, 73 S. Ct. 85 (1952); Federal Trade Commission v. Carter Products, Inc., 346 U. S. 327, 98 L. Ed. 4, 74 S. Ct. 2 (1953), vacating order by Court of Appeals which failed to remand order of Federal Trade Commission set aside for failure to accord a fair hearing and directing remand to commission in Carter Products v. Federal Trade Commission, 201 F.2d 446 (9th Cir. 1953); Secretary of Agriculture v. United States of America, 347 U. S. 645, 74 S. Ct. 826, 98 L. Ed. 1015 (1953). Securities and Exchange Commission v. Chenery Corp., 318 U. S. 80, 87 L. Ed. 626, 63 S. Ct. 454, cited by appellant in support of his argument that the courts cannot uphold or correct board action on findings which might have been made rather than those which were made, also supports remand where the grounds for board action are not clearly disclosed and adequately sustained.

Harris, C. J., joins in this dissent.


author: Frank Holt, Justice.

text:
    Mrs. Wallace VOSS, Widow of Wallace Voss, deceased v. WARD’S PULPWOOD YARD and American Mutual Lia. Ins. Co.
    5-5203
    452 S. W. 2d 629
    Opinion delivered April 6, 1970
    [Rehearing denied May 11, 1970.]

      McMath, Leatherman, Woods & Youngdahl; By: Silas H. Brewer, Sr., for appellant.

      Smith, Williams, Friday & Bowen; By: William H. Sutton and Frederick S. Ursery, for appellees.
   Frank Holt, Justice.

In this workmen’s compensation case the only issue is whether the deceased was an employee of Ward’s Pulpwood Yard or an independent contractor at the time of his death. The referee conducted a hearing and dismissed appellant’s claim on the basis that the decedent was an independent contractor and not Ward’s employee. The dismissal of the claim was affirmed by the Workmen’s Compensation Commission and by the circuit court from which comes this appeal.

Appellant first contends for reversal that the circuit court erred in affirming the commission’s dismissal of this claim on the ground that the deceased was not Ward’s employee. We review the evidence to determine if there is substantial evidence to support the findings of the commission, inasmuch as we are committed to the rule that the findings of the commission, like that of a jury, will be upheld if there is any substantial evidence to support its action. Herman Wilson Lbr. Co. et al v. Lester Hughes, 245 Ark. 168, 431 S. W. 2d 487 (1968).

Appellee Ward had a written contract with International Paper Company to cut and haul timber to its mill from a tract of land owned by the paper company. By this contract Ward was to cut and haul all of the merchantable pine timber that measured four inches or larger in diameter. Appellee Ward entered into an oral contract with Wallace Voss to perform Ward’s contract obligations to the paper company. It was agreed that Ward would pay Voss a certain sum of money for each cord of wood he cut and hauled from the paper company’s land to the mill. Mr. Voss suffered a fatal heart attack when he and his helper attempted to free Voss’s loaded truck which had become “stuck” or mired in the woods as they were hauling a load to the mill. Voss, the decedent, owned all the equipment, including saws and truck, necessary to perform his contract with Ward. He had two employees which he hired, controlled, and paid per load by the week. Voss had worked primarily for Ward for about three years. During this time he also hauled timber for others. Sometimes Voss himself would buy timber and sell it to Ward, as would other haulers. There was no requirement that Voss work any particular time. The cutting, loading, and hauling of the pine timber were entirely within the discretion of Voss, except that Ward would occasionally examine the cutting operation to determine if the size of the logs being cut met the terms of the agreement. Ward made no deductions of any kind whenever he paid Voss.

We must agree with the appellees that there is substantial evidence to support the commission’s finding that Mr. Voss, the deceased, was not an employee of appellee Ward. Lockeby v. Ozan Lbr. Co., 219 Ark. 154, 242 S. W. 2d 115 (1951); Marceline Pearson et al v. Lake Lawrence Pulpwood Co. et al, (Dec. 8, 1969) 447 S. W. 2d 661. Nor can we agree with the appellant that Hale v. Mansfield Lbr. Co., 237 Ark. 854, 376 S. W. 2d 670 (1964), is applicable. In that case the company agreed to pay workmen’s compensation insurance premiums upon the claimant as a part of his remuneration. No such agreement exists in the case at bar. Neither can we agree with the appellant that Ark. Stat. Ann. § 81-1306 (Repl. 1960) is applicable.. That statute provides that the prime contractor shall be liable for compensation to the employees of a sub-contractor when the sub-contractor fails to secure the required workmen’s compensation insurance.

The appellant next contends that the appellees are estopped from defending this claim upon the basis that Mr. Voss was an independent contractor. This is predicated upon the fact that Ward had turned in a claim for Voss about a year previous and it had been paid. Ward testified that he thought Voss was an independent contractor. However, the insurance carrier was never made aware that Voss was considered an independent contractor. The appellant relies upon Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S. W. 2d 270 (1963), and Hale v. Mansfield Lbr. Co., supra, where the doctrine of estoppel was applied. We do not consider these cases controlling in the case at bar. In each of those cases there was a contractual agreement that the payment of workmen’s compensation insurance premiums by the company was a part of each claimant’s pay and these premiums were deducted from the payments made to the claimant. No such agreement or deduction appears to exist in the case at bar. Nor is there sufficient evidence adduced as to the exact relationship between the parties and the present appellee carrier when this previous claim was paid. See Marceline Pearson et al v. Lake Lawrence Pulpwood Co. et al, supra.

The appellant next asserts that regardless of the decedent’s employment status and the availability of the doctrine of estoppel, the appellees are contractually obligated to pay workmen’s compensation benefits in the circumstances of the case at bar. We find no merit in this contention. Appellant relies upon Ward’s compensation insurance policy which provides that the policy premium is to be computed on the basis of the annual remuneration paid to persons engaged in: “Logging or lumbering — pulpwood exclusively — including transportation of logs to mill . . . drivers.” And paid to: “# # # (a) all executive officers and other employees of the insured engaged in operations covered by this policy, and (b) any other person performing work which may render the company liable under this policy for injury to or death of such person in accordance with the workmen’s compensation law . . .”

It is appellant’s argument that what Ward paid to Voss must have been considered in the computation of the annual premiums which Ward paid on his policy of workmen’s compensation insurance and, furthermore, that it is clearly inferable that Ward procured insurance coverage for Mr. Voss and his helpers. There is no evidence that insurance premiums were being paid by appellee Ward based upon remuneration to claimant’s decedent or that there was an obligation to do so. As indicated, there is an absence of proof of any contractual agreement between the parties as to the payment of premiums such as existed in Stillman v. Walter, supra, and Hale v. Mansfield, supra. The burden of proof rests upon a claimant to establish his claim for compensation. Brooks v. Wage et al, 242 Ark. 486, 414 S. W. 2d 100 (1967).

The finding of the commission was based upon substantial evidence, therefore, the judgment of the circuit court is affirmed.

Affirmed.


author: Carelton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    Collier WENDEROTH and Nancy Wenderoth v. Jack FREEZE, Mayor of the City of Ft. Smith Ark. et al
    5-5188
    452 S. W. 2d 328
    Opinion delivered April 13, 1970

      Harper, Young & Smith, for appellants.

      Shaw, Jones & Shaw and Jack Rose, for appellant.
   Carelton Harris, Chief Justice.

This is a zoning case. Collier Wenderoth and Nancy Wenderoth, appellants herein, own a home in Fort Smith which abuts a tract that the City of Fort Smith, on the application of Grand Investments, Inc., one of the appellees herein, rezoned from Open 1 (0-1) to Residential 3 (R-3). The tract of land rezoned is approximately 8.3 acres, and lies west and abutting to Interstate 540, between the streets Grand Avenue and Kinkaid Avenue. The purpose of Grand Investments in seeking the rezoning was to sell the tract of land owned by them to Henderson Corporation, Henderson proposing to build an apartment complex consisting of approximately 225 units. The petition for rezoning was filed with the Planning Commission of the City of Fort Smith, heard by the commission, and approved on April 8, 1969. Appellants were not present at that time, and this fact will be hereafter discussed. On April 21, 1969, the Board of Directors of the City of Fort Smith considered the petition for the requested rezoning, and Collier Wenderoth appeared before the board with his attorney in opposition thereto. However, the board approved the rezoning, and passed an ordinance to that effect. Thereafter, appellants instituted suit in the Sebastian County Chancery Court, seeking an injunction to prohibit the proposed zoning change. After the taking of evidence, the court found that the only abutting property owners complaining as to the rezoning were the petitioners; that they had notice of the hearings and were afforded an opportunity to be heard; that it had not been shown by appellants that the rezoning was unreasonable and arbitrary. The complaint was dismissed for want of equity, and from the decree so entered, appellants bring this appeal. For reversal, two points are asserted, first, "The lower court erred in holding that the action of the Planning Commission and Board of Directors was not arbitrary.” It is also contended that “The lower court erred in finding that the notice of public hearing was given in accordance with the ordinances of the City of Fort Smith, Arkansas.

We have held that the Chancellor should sustain the city’s ruling unless he should find that it acted arbitrarily. Olsen v. City of Little Rock, 241 Ark. 155, 406 S. W. 2d 706. However, we agree with appellants that the action of the City Planning Commission, under the circumstances hereafter enumerated, was arbitrary, and resulted in a denial of appellants’ rights.

The record reflects that the Wenderoths received notice by post card, dated March 18, that a hearing on the rezoning petition filed by Grand Investments, Inc., would be held by the Planning Commission on Monday, April 15, 1969. No objection to this date was raised by the Wenderoths, and as far as the record reflects, they apparently planned to be present to voice their opposition to the petition at that time. Another notice, postmarked March 28, was received by appellants, advising that the hearing would be held on April 8, 1969. According to the testimony, Mr. Wenderoth had previously arranged for dental surgery for his wife at Tulsa, Oklahoma, on that date, a gingivectomy operation having been arranged with a Doctor Hall of that city. Mr. Wenderoth’s attorney was Thomas Harper of Fort Smith, and Mr. Harper was also committed for another meeting at that time. A partner of Harper, who, according to the evidence, was not familiar at that time with any of the facts upon which the Wenderoths based their protest to the rezoning, went to the Planning Commission meeting on April 8 to request a continuance of the hearing, the associate giving the reasons why the Wenderoths could not be present. Counsel for appellees objected to a continuance, and the chairman stated, “I think we will go ahead and hear the case and after Mr. Ledbetter finishes, I’ll ask if there is any opposition. At that time you can get on the record what you want.” The request for rezoning was then presented and at the conclusion of the presentation, the chairman inquired if anybody desired to speak in opposition. Harper’s associate counsel then stated:

“* * * I once again renew my request for continuance to permit Mr. Harper, Mr. Wenderoth and Mrs. Wenderoth if he should desire to present your objection to the granting of this zone change. I am not familiar, I have not talked to Mr. Wenderoth about this, and we let the opposition know, the opponents of this last weekend, what the complications were. I think in order to have the full and complete hearing these people should be heard and those matters taken up only after both sides have been presented.”

After hearing some other cases, the chairman then asked if the commission desired to postpone or defer action for a month in order to give Mr. Wenderoth and Mr. Harper, his attorney, an opportunity to be heard. An unidentified member of the commission moved that this be done, and another member, identified as Dr. Shermer, stated:

“Well, I just want to say they knew this meeting was to be held today and they had ample time to prepare for it. I’m not one way or the other, but I don’t think going to the doctor or going to a dentist is enough reason to excuse a man from being present in a meeting when he’s known about it for a month.”

When another unidentified member mentioned that Harper was in another meeting being held simultaneously, Shermer replied:

“Well, I knew, but I think he could have sent his representative because this meeting is just as important as that.”

A vote was taken on whether to take action on the petition immediately, and six voted, “Aye;” three, against. The petition for the rezoning was approved, and the recommendation made to the Board of Directors of the City of Fort Smith that same be granted. On April 21, the Board of Directors held its regular meeting, and the matter was presented for its approval. At that time, Mr. Wenderoth made a statement opposing the rezoning. A Mr. Mooney stated he had not been contacted, and that he would like to ascertain how rezoning would affect his property. He said that he bought his property under the assumption that “all of that would remain residential. Now, I am just making my point. I’m involved, all my savings are there and I don’t believe that it is being done in a democratic way.” After a motion was made to approve the rezoning ordinance, and the rules were suspended for a second and third reading, the ordinance was approved by a vote of five to one.

Appellees point out that appellants’ counsel was given an opportunity to present objections to the proposed zoning at the meeting of the Planning Commission; that they were given a hearing at the meeting of the Board of Directors, and that again, in Chancery Court, appellants had an opportunity to present all of their evidence at a de novo trial. It is apparently the view of appellees that, since they (appellants) had the opportunity to present their case to the Board of Directors, and to tíre Chancery Court, the failure to have that opportunity before the City Planning Commission is really immaterial.

We cannot agree with this argument, and if it is sound, then there is no reason for a hearing to be held at all before the City Planning Commission. If a hearing is of no value, it can only be characterized as a waste of time for members of the commission, the petitioners, and the opponents. The general purpose of a Planning Commission is set out in Ark. Stat. Ann. § 19-2827 (Repl. 1968) as follows:

“The general purpose of the planning commission is to prepare or have prepared a plan or plans of the municipality, to receive and make recommendations on public and private proposals for development, to prepare and administer planning regulations, to prepare and transmit to the legislative body recommended ordinances implementing plans, and to advise and counsel the city government and other public bodies. The planning commission shall have the duty and function of promoting public interest in and understanding of the long-term coordinated municipal planning.”

The importance of a hearing before that body is shown by the fact that Fort Smith has an ordinance, No. 2639, requiring notice of any hearing of a change or authorization in zoning to be published in a newspaper of general circulation in the city at least one time 15 days prior to the hearing. Mr. Bob McCann, Secretary of the Planning Commission, testified that, in addition to the legal description of the property sought to be rezoned, the commission also requires that the street address be given, the commission realizing that many people would not be able to identify property simply by the legal description. Certainly, hearings affecting vital property rights are important, particularly so, when they involve an individual’s home, the place where he contemplates spending the rest of his life. The Chancellor commented on the request for continuance as follows:

“Further, it is indicated that there was a request for a continuance before the Planning Commission, but that this body which has authority to promulgate its own rules and regulations for conducting its affairs (Arkansas Statutes Annotated, Title 19-2830) did, within its discretion, deny the request for continuance. Had the matter stopped here, this may have been considered an indiscretion, but this body is only an advisory body and merely, after denying the request for a continuance and after having heard the evidence presented before it in connection with the rezoning application, did approve and recommend granting the change to the Board of Directors of the City of Fort Smith, which is its primary function.”

We have already pointed out that we attach much more importance to this primary hearing than is indicated by the appellees, and the trial court. It certainly appears that the Board of Directors attached importance' to the recommendation of the commission, as well they might, and any attorney is aware of the advantage of prevailing in the first engagement. It is no answer to say that appellants could not have been prejudiced because they received a de novo hearing before the Chancery Court. Actually, such a hearing is not de novo, for the court is only permitted to reverse the city’s legislative body if it finds that that body acted arbitrarily. We, in turn, only reverse if the findings of the Chancery Court are against the preponderance of the evidence. Olsen v. City of Little Rock, supra. Of course, it has been held that this court hears all Chancery cases de novo. Harris v. Harris, 236 Ark. 676, 370 S. W. 2d 121. But despite that fact, we have held many times that we will not reverse a Chancellor unless his findings are clearly against the preponderance of the evidence, and this is actually the rule that is followed. Hampton v. Hampton, 245 Ark. 579, 433 S. W. 2d 149.

We have endeavored, in the remarks of the last several paragraphs, to show that a hearing before the Planning Commission is much more than perfunctory, i. e., it is not a mere formality. The next question is: “Did the Planning Commission act arbitrarily in refusing to grant a continuance in order that the Wenderoths might be heard” We think the answer is a solid “yes,” and we disagree with Dr. Shermer when he said, “I don’t think going to the doctor or going to a dentist is enough reason to excuse a man from being present at a meeting when he’s known about it for a month.” In the first place, the Wenderoth’s had not known about this hearing for a month. Mr. Wenderoth testified that he received the second notice (advising of the new date) on March 31, or nine days before the hearing. The record reflects that the notice was not sent out until March 28, so he could not have known about it for more than eleven days. This is some three weeks less than a month. Mainly, however, Wenderoth had already been advised that the hearing was set a week later (April 15), and he cannot be blamed for having made arrangements for his wife to receive dental surgery on the 8th — nor do we think it reasonable to require Wenderoth’s regular attorney, who had another meeting, to cancel that meeting for the purpose of appearing before the commission. For that matter, an attorney can hardly capably or efficiently handle any matter in the absence of his client.

There is not one line of evidence that Wenderoth prevaricated in stating the reason for his inability to be present, and likewise, there is no reason given for the change of dates for the hearing, other than it appears a mistake was made when the card was sent out advising that the hearing would be held on the 15th. Still, Wenderoth should not be held responsible for someone’s mistake in sending the notice. We think the commission acted arbitrarily in refusing to continue the hearing.

As to the second point, we agree that proper notice in conformity with the city requirements was not given, Mr. McCann admitting that the description used in the notice could include several square miles, but under the circumstances herein, this is not grounds for reversal. It is true that several people (not abutting property owners) testified in Chancery Court against the rezoning, stating that they did not know about the hearing before the Planning Commission, and it is entirely probable that, with such knowledge, at least some would have been present for the purpose of being heard. However, these persons are not parties to this litigation, and accordingly are not asking for any relief. Only the Wenderoths are appellants, and they were aware that a hearing would be held.

In accordance with what has been said, we find that the Chancellor’s holding that the city did not act arbitrarily is against the preponderance of the evidence, and the decree is accordingly reversed.

It is so ordered.

Fogleman and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. Perhaps the fundamental basis of my disagreement with the majority stems from a difference in concept as to the importance of the role of the Fort Smith City Planning Commission in this matter. After adoption, a zoning plan, which may be recommended by a city planning commission, is effectuated by a zoning ordinance adopted by the city governing board. Ark. Stat. Ann. § 18-2829 (Repl. 1968). Such an ordinance may be altered or amended by the council either with or without the recommendation of the city planning board. Ark. Stat. Ann. §§ 19-2829, -2830 (Repl. 1968). The action of the city council may be appealed to the circuit court of the county wherein the city lies for a trial de novo according to the same procedure which applies to appeals in civil actions. This appeal, like the appeal from a- municipal court or county court, requires a complete new trial as if the city governing board and the planning commission had never acted. Ark. Stat. Ann. § 19-2830.1 (Repl. 1968). City of Little Rock v. Leawood Property Owners Assn., 242 Ark. 451, 413 S. W. 2d 877; Arkansas Power & Light Co. v. City of Little Rock, 243 Ark. 290, 420 S. W. 2d 85; Ark. Stat. Ann. §§ 44-504, -509 (Repl. 1964); Ark. Stat. Ann. §§ 27-2006, -2007 (Repl. 1962); Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706; Gocio v. Harkey, 211 Ark. 410, 200 S. W. 2d 977.

On such a trial de novo, the circuit court tries the cause upon its merits, and determines the same by the exercise of its own judgment and discretion to the same extent that the agency from which the appeal was taken might have done. Thornton v. Allen, 101 Ark. 106, 141 S. W. 499; Stephens v. School Dist. No. 85, 104 Ark. 145, 148 S. W. 504. It is the duty of the circuit court to hear any admissible evidence that either side desires to present. Garland County Board of Election Commissioners v. Ennis, 227 Ark. 880, 302 S. W. 2d 76. Objections to procedures in the tribunal from which the appeal has been taken are futile and unavailing. Arkansas Cotton Growers Co-op Assn. v. Brown, 179 Ark. 338, 16 S. W. 2d 177; Martin v. State, 46 Ark. 38. The circuit court does not pass upon any question as to an erroneous ruling made by the agency from which the appeal is taken. Stephens v. School Dist., supra; Thornton v. Allen, supra; Batesville v. Ball, 100 Ark. 496, 140 S. W. 712. Irregularities in procedure in the tribunal from which appeal is taken are immaterial, where appellate trial in circuit court is de novo. Nooks v. City of Van Buren, 206 Ark. xix, 174 S. W. 2d 443; Mayfield v. State, 160 Ark. 474, 254 S. W. 841; Simpson v. State, 193 Ark. 623, 101 S. W. 2d 795. Error in the sustaining of a demurrer by a court of limited jurisdiction has been held not to justify remand by the circuit court on appeal, rather than trial of the case on its merits. Dean v. Bush, 193 Ark. 1179, 97 S. W. 2d 429. We have heretofore called attention to the fact that even denial of constitutional right to counsel is not invaded, where an accused has the right to trial de novo on appeal where he is represented by counsel. Cableton v. State, 243 Ark. 351, 420 S. W. 2d 534.

Instead of taking their appeal to the circuit court, appellants chose to apply to the chancery court for relief. In their original petition there, appellants alleged that the city’s Board of Directors (not the planning commission) abused its discretion in allowing the zoning change. Appellants further stated in this pleading and repeated in an amended petition that “This peti-, tion is in the form of an appeal from the action of the hoard of Directors. . . .” (Emphasis mine.) By their amended petition appellants alleged that the abuse of discretion of the board of directors was in granting the zoning change, with knowledge of the improper and arbitrary manner of the hearing conducted by the planning commission, the decrease in value of surrounding property that said grant would cause and the increase in traffic which would endanger children attending Echols School. Appellees answered and the record discloses that appellant Collier Wenderoth and his attorney were present and participating at the meeting at which the rezoning action was taken by the board of directors and were given and availed themselves of an opportunity to present any objections or evidence concerning the matter.

The chancery court proceeded to determine the issue raised by appellants’ petition, i. e., whether the action of the City of Fort Smith was arbitrary, unreasonable and an abuse of discretion. In setting out his findings, the chancellor stated that, had the matter stopped with the planning commission action, it might well have been an abuse of discretion, but continued, saying that the commission only recommended the change to the board of directors, and that, at a full and complete hearing by that board, appellants’ objections (which were the same as those made in the chancery proceedings) were considered. The court held that appellants had failed to show that the action of the board was arbitrary, unreasonable or in abuse of its discretion. The court then proceeded to make these findings:

“Comment should be made with reference to the traffic conditions and noise, as well as. the project itself proposed upon the property concerned. While these complaints are speculative at this stage, testimony pro and con was taken and considered both by the City and this Court. The project proposal concerned would open an avenue not presently opened between Kinkead and Grand Avenue for handling traffic, as well as afford sidewalks not presently existing according to the testimony and evidence. Further, the proposed apartment complex project would act as a buffer for noise from Interstate No. 540, and there is substantial evidence that one of the highest and best uses of the property sought to be rezoned is the proposed project and that it would not, of itself, devalue the property of the Petitioners or the surrounding area. These matters were all presented to and considered by both the Planning Commission and the City Board of Directors and are supported by substantial if not the preponderance of evidence in this case on trial before the Chancery Court in support of the City’s action.”

The record discloses that Collier Wenderoth testified at length on the merits of the rezoning. He also presented five witnesses who testified on the merits. No evidence offered by appellants was rejected. One of the owners of the company seeking the rezoning and two real estate experts also testified as to the propriety of the zoning.

Appellants had the opportunity to and did present to the board, the agency having the power to act in the premises, any and all evidence that they could have presented to the planning commission. They could have presented to a circuit court for a de novo determination any and all such evidence and all the evidence presented to the chancery court. They do not seek to show here that the chancery court’s review was not broad enough. They merely argue that it erred in holding that the action was not arbitrary.

In the first place, it seems to me that the chancellor was correct when he held that even if the commission’s action was an abuse of discretion, appellants had a full and complete hearing by the city’s governing board. Furthermore, appellants cannot say that they were prejudiced by their inability to present any objection or evidence to the planning commission, because they had a right to trial de novo in the circuit court. Under these circumstances it seems illogical to me to say that a procedural error, even if an arbitrary one, can have the effect given it by the majority. If so, it behooves one objecting to planning commission action to bypass his right of hearing before the city governing board and his appeal to the circuit court in favor of an effort to have the city’s action held invalid as arbitrary. This does not seem rational to me.

The scope of chancery court review and the limitations on its relief have been clearly defined. A chancery court may declare a zoning ordinance void when, and only when, it can say that the action of the authority having power to zone, is clearly unreasonable, arbitrary and capricious or an abuse of discretion. Economy Wholesale Co. v. Rodgers, 232 Ark. 835, 340 S. W. 2d 583; Herring v. Stannus, 169 Ark. 244, 275 S. W. 321; City of Little Rock v. Garner, 235 Ark. 362, 360 S. W. 2d 116; Olsen v. City of Little Rock, 241 Ark. 155, 406 S. W. 2d 706; City of Little Rock v. Joyner, 212 Ark. 508, 206 S. W. 2d 446; City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883. In the sense used in these cases, we have said that “arbitrary” means “decisive but unreasoned,” or “arising from unrestrained exercise of the will, caprice or personal preference, based on random or convenient selection or choice, rather than on reason or nature” and that “capricious” means “not guided by steady judgment or purpose.” City of North Little Rock v. Habrle, 239 Ark. 1007, 395 S. W. 2d 751; City of Little Rock v. Parker, 241 Ark. 381, 407 S. W. 2d 921.

It is the application of the ordinance to the property in question that must be unreasonable and arbitrary, not the procedure by which the result was reached. City of Little Rock v. Hunter, 216 Ark. 916, 228 S. W. 2d 58. I have made an exhaustive search, but have been unable to find any case where any question except the end result of city action, i. e., the classification actually made by the city or its application to the property involved, has been considered as determinative of the validity of the municipal action. I have likewise been unable to find any case where the determination was made by this court upon purely procedural errors which were not jurisdictional. On the other hand, a decree holding that city council zoning action was reasonable was sustained even though there was testimony, apparently by an alderman, that the council members had a “gentleman’s agreement” to follow, or vote according to, the recommendation of the councilman from the ward involved on the premise that the alderman in a ward was in close touch with the situation. McKinney v. City of Little Rock, 201 Ark. 618, 146 S. W. 2d 167.

It has also been held that before the courts will invalidate a zoning ordinance, the property owner must first exhaust his administrative remedies before he can seek equitable relief. City of Little Rock v. Hunter, supra. While' appellants did so in this case, that rule would be meaningless, if the property owner could seek relief from the city governing board and still ask judicial relief because of improper or erroneous action on the part of the planning commission. If a property owner can do this, then the courts should pass upon the planning commission action without first relegating a property owner to his administrative remedies.

Abuse of discretion on the part of the planning commission in refusing the continuance is at least questionable. Appellants had notice of the meeting of the planning commission in ample time that they could see that a representative appeared to seek a continuance of the hearing. Even though the messenger who appeared on this mission was not appellants’ regularly retained attorney, he was the partner of that attorney. The attorney who appeared was unable to state the Wenderoths’ objections to the commission. No reason is given for the failure to communicate to him the basis .of appellants’ objections so that the commission might be apprised of it. Certainly, the commission was entitled to know the basis of the objections being made in order to determine the propriety of the request. It could not even know whether the presence of appellants or their regularly retained attorney was essential to presentation of the objections they were urging. Since it was being called upon by appellants to exercise its discretion to grant a continuance, it was entitled to have adequate information. Any other rule would make conduct of the business of a city planning commission difficult, if not impossible, because few meetings involving such matters of community interest can be scheduled without conflicting with other important appointments of an interested party or attorney.

I see no need to outline the testimony before the trial court. It seems to me that it cannot be said that the chancellor’s finding was clearly against the preponderance of the evidence.

Byrd, J., joins in this dissent.

      That the commission performs important functions is recognized by the fact that in certain instances, the commission’s disapproval of a submitted proposal can only be overruled by a recorded vote of 2/3 of the full membership of the municipal legislative body that created the commission. See Sub-section f of Section 19-2827.

      Emphasis supplied.

      For an application of a virtually identical rule to proceedings of an administrative agency, see State v. Pollock, 251 Ala. 603, 38 So. 2d 870, 7 A. L. R. 2d 757 (1948).

      Árkansas Statutes Annotated § 19-2830.1 (Repl. 1968) certainly does not enlarge the scope of chancery court review, and appellants do not so contend. In spite of the language giving the right of appeal in addition to existing remedies provided by law, it may well be that trial de novo on appeal would deprive the equity court of jurisdiction because of adequacy of the remedy at law, if proper objection was made. See Rockefeller v. Hogue, (April 21, 1969), 439 S. W. 2d 805; McGehee v. Mid South Gas Co., 235 Ark. 50, 357 S. W. 2d 282. Since the chancery court is not wholly incompetent to grant the relief sought by appellants, appellees waived the question by answering without reserving any objection on this ground. Reid v. Karoley, 232 Ark. 261, 337 S. W. 2d 648.

      The same attorney who appeared before the planning commission also tried this case in the chancery court and argued the case orally here.


author: George Rose Smith, Justice.

text:
    BATESVILLE FUNERAL HOME, Inc. et al v. Orville Lee BARNETT
    5-5239
    452 S. W. 2d 656
    Opinion delivered April 13, 1970

      Griffin Smith, for appellants.

      McMath, Leatherman, Woods <h Youngdahl, for appellee.
   George Rose Smith, Justice.

In this action for personal injuries the appellee obtained a verdict and judgment for $38,500, the defendants’ liability being admitted. The only issue here is whether the award is excessive.

Barnett suffered severe neck and back injuries on August 28, 1968, when his car was struck from behind by a vehicle owned by the appellant Batesville Funeral Home and being driven by its employee, the other appellant. For a few months Barnett was able to continue his work as a security officer or watchman, but eventually he was forced to give up his employment, which required him to walk extensively and to climb stairs. At the trial Barnett testified that he was unable to work: “I couldn’t work if my life depended on it.” That testimony was corroborated by Dr. Williams, who stated that Barnett cannot do extensive walking or climbing, that the patient is not going to get any better, and that normally he will get progressively worse. It is enough for us to say, without detailing the proof, that there is substantial evidence from which the iury could have found that as a result of the accident Barnett is totally and permanently disabled.

Before Barnett was injured he had been earning $519 a month, or $3,828 a year. By the date of trial he had lost some seven months’ work, amounting to more than $2,000. It was stipulated that his life expectancy was 15 years, which would represent total future earnings of $57,420. In Strahan v. Webb, 231 Ark. 426, 330 S. W. 2d 291 (1959), we used a 5 percent interest factor in reducing the plaintiffs’ loss to its present value. Such a calculation, according to the table given at page 332 of the American Jurisprudence (2d) Desk Book (1962), would fix the present value of Barnett’s loss at $39,734.64. Even with a 6 percent interest factor the same table would fix the present value of the loss at $37,177.53. The verdict, it will be remembered, was for $38,500.

It is conceded that Barnett’s injuries aggravated a disc condition that had not previously given him any trouble. In view of that fact the appellants make this argument: “Reality does not permit the substantial likelihood that a 61-year-old man suffering from degenerative disc disease at the time of an injury would complete his life expectancy in good health and with earning capacity unimpaired.” We appreciate the logical force of that reasoning, but in the absence of any proof touching upon the extent to which the plain tiff’s life expectancy might have been affected by his pre-existing condition, such an argument properly addresses itself to the jury rather than to this court. Moreover, the court gave without objection AMI 2203, which permitted the jury to consider the full extent of Barnett’s injuries even though his existing condition might have been aggravated thereby. We have no basis for saying that the jury should have awarded a smaller amount than the figure to be reached by a conscientious adherence to the court’s instructions.

Finally, by no means does the verdict depend solely upon Barnett’s loss of future earnings or earning capacity. We have mentioned his loss of $2,000 as a result of his having been out of work before the trial. In addition, his medical expenses before the trial amounted to $948.89. We need not narrate his testimony about his pain and suffering, except to say that it was substantial. Before the trial Barnett had received 45 therapy treatments, including traction, and was expected to need additional treatment in the future. On the record as a whole, it will be seen that we cannot declare the award to be excessive without infringing upon the jury’s exclusive right to weigh the evidence.

Affirmed.


author: Lyle Brown, Justice.

text:
    Tommy R. WILLIAMS and Vela Iretha WILLIAMS v. Troy L. FEARS
    5-5211
    452 S. W. 2d 642
    Opinion delivered April 13, 1970

      Frierson, Walker, Snellgrove <lx Laser, for appellants.

      Kirsch, Cathey ir Brown, for appellee.
   Lyle Brown, Justice.

This suit was brought by Troy L. Fears to close a road running across his forty acres and serving as a passageway to adjoining acreage owned by Tommy R. and Vela Iretha Williams. Fears contended that the use of the road was permissive in its inception and so continued. The Williamses countered with the plea that the roadway was established under an oral easement in about 1945 and by continued maintenance and use had ripened into a prescriptive easement. The chancellor held that Fears was entitled to have the road closed. The Williamses appeal on the ground that the trial court’s decision is not sustained by a preponderance of the evidence.

For many years and until his death in 1957, Jesse Fears, appellee’s father, owned the southeast forty acres in Sec. 10, Twp. 17 North, Range 3 East, Greene County. He also owned other adjoining acreage to the north and east and the entire tract constituted the Jesse Fears homestead. The Fears forty with which we are concerned is the southeast forty acres and we shall refer to it as the SE SE. In about 1935, Johnny Houston acquired forty acres to the southwest of the SE SE. The northeast corner of the Houston forty joined the southwest corner of the SE SE. Roughly eight acres of the Houston forty were cut off from the balance of his forty by Swan Pond Ditch which ran east and west. Houston had no public way to reach that isolated acreage. After using for a time a rather unsatisfactory entrance across a private way, Houston, in about 1944, came to some type of agreement with Jesse Fears. As a result of that understanding, a gap was cut in Jesse Fears’s fence at the southeast comer of Fears’s SE SE and adjacent to Evening Star Road running north and south. Beginning at the gap a passageway was constructed westerly across the SE SE extending to Houston’s northeast corner. At the end of the road Houston built a tenant-type house. We do not know to what extent the house was occupied through the years, but we do know occupancy was abandoned some years ago. Appellants, the Williamses, and a partner, purchased the Houston forty in 1959, and the Williamses bought out the partner in 1965. Johnny Houston and Tommy Williams used the access road during planting and harvesting time each year since it was constructed.

In 1961 appellee purchased the forty acres which joins on the south his SE SE. That meant that the combined eighty acres is cut almost in half by the access road which is the subject of this litigation. In 1967 appellant Tommy Williams approached appellee about their joining together to construct some drainage under the road. Appellee informed Williams that the former desired that the road be discarded because it hindered the economical operation of his two eighty-acre tracts as a unit. Williams disagreed and this lawsuit followed.

We have examined the pleadings and the testimony to determine precisely the issues before the chancellor. It was appellee’s theory that his father, as a convenience to Johnny Houston, permitted a passageway to be constructed but that there was no conveyance of a dominant estate made — in other words, permissive use was all that Jesse Fears granted. Appellant answered by asserting that “such roadway was established by an oral easement granted by the owner of súch property about the year 1945, on the basis of which easement the defendants’ predecessors in title took possession of the property, opened the road and have continuously maintained the roadway to the present time.” By their testimony appellants endeavored to show that Johnny Houston bought a perpetual easement, that Houston exercised use and dominion over the road from 1944 until 1959, and that control was continued by appellants from that date until the present. We agree with the chancellor that he properly defined the issues in these words:

The testimony shows there is no question about it that Mr. Jesse Fears did give some sort of a right for Johnny Houston to have a road over his land as it existed at that particular time. Now the question I must decide is whether or not it was by permissive use or it was by granting of an easement by this oral method whereby it would be binding on Mr. Troy Fears or any of those who might succeed him in his title from here on.

As to the history of the road, four witnesses testified for appellee. Houston Holland homesteaded the Johnny Houston forty (and an adjacent forty on the east) in 1982. He was the grantor, Holland-to-Houston. He testified that at the time he sold to Houston the latter had no access on that part of the forty acres north of Swan Pond Ditch; that subsequently Jesse Fears permitted Houston to cut a gap in Fears’s fence to make a road; and that thereafter Houston built a house at the end of the road. Appellee Troy Fears testified that he acquired his father’s farm after the latter’s death in 1957; that he was born and reared in a farmhouse a short distance from the road in dispute, leaving home in about 1940; and that his father gave Houston permission to use the disputed area as a road. Appellee has lived in St. Louis for the past twenty years but explained that he personally supervises his farming operation, making numerous trips to the farm each year. His reasons for wanting to close the road are to develop the total acreage to a fuller potential, utilize larger equipment, and probably install irrigation. The instigation of the present controversy arose in 1967 when Tommy Williams approached him about Williams placing a tile across the access road, at which time he informed Williams of his plans to close the road. Appellee did not profess to personally know anything of the details of the transaction whereby his father granted access to Houston. He characterized it generally as a neighborly act of accommodation and as a purely permissive use. He testified that he had talked with Johnny Houston many times through the years and that no mention had ever been made of Houston having obtained a vested interest in the road.

Weldon Jetton testified for appellee. For some eight or nine years he lived in proximity to the access road. He related that Tommy Williams had used his heavy equipment to improve the county road but had never used it on the access road. Finally, William Stringer testified for appellee. He owned and cultivated forty acres just west of the Fears SE SE from 1939 through 1949. He recalled Jesse Fears making the statement: “I let Uncle Johnny have a road.” The witness described Mr. Fears as being very accommodating to those he liked.

Johnny Houston was the principal witness for appellants. He impressed the chancellor as being “rather senile,” and we reach the same conclusion after studying the testimony. He testified that he gave Jesse Fears $30.00 for the road and “if I traded the place off or sold it, this road fell heir to the fellow that bought the land off me, whichever way it was.” He said he obtained nothing in writing. Additionally, the witness testified to the same figure of $30.00' with respect to purchasing some fencing to be erected on the north side of the road. The chancellor could not discern whether the $30.00 attributed to the alleged purchase of the road actually went for that purpose or was used to purchase fencing. In one instance Houston said he bought the fencing from Jesse Fears and later he stated he bought it at Paragould. Here is another example of his frustrating testimony:

Q. It was just $30.00?
A. $30.00 for the fence.
Q. $30.00 for the fence or the road?
A. $30.00 for the fence and that’s when I was supposed to have got the road. I went traveling up and down through there. That road cost me $30.00.

Mr. Houston was quite frank about his loss of memory. He was asked to recount the year in which he bought the property and he answered: “No, really I don’t. There has been so much water run under the bridge and some of it went over that I can’t recall. It has been a long time back.”

The chancellor, after commenting on the contradictory nature of Mr. Houston’s testimony, concluded that he could not “give it sufficient weight to establish an oral easement.”

Appellant Tommy Williams testified that he was familiar with the access road when he bought the Houston forty; that at that time there was a fence on the north side, extending from the west end about 250 feet eastward; that appellee removed the fence about 1967; that he used the road in crop time but not during the winter months; that he had pulled some dirt up on the road with a dozer blazer, cleaned out brush, and back-dragged; and that it was the most feasible way into the north side of his property. He did not testify that he received information from anyone concerning Houston’s precise interest in the road.

Everett Rice, who lived in the same community for many years, described the road as having a ditch on the north side and a long row of trees on the south side. He described an incident which occurred in 1953 when he was working nearby on a tractor. Jesse Fears and Houston were at the road and a dispute arose between them. Houston is said to have gone to his house, obtained a shotgun and reappeared outside but did not return to the point where the argument arose. Rice said the noise of the tractor prevented him from hearing the conversation.

Calvin Cooper testified that he was working for the county in 1946 or 1947, running a motor grader. At that time, and at the request of Jesse Fears, tie said he cut the first ditch on the north side of the access road. He described the road as then being nothing more than a footpath with a narrow bridge across the entrance. In his opinion the ditch was helpful to both Johnny Houston and to Jesse Fears; it aided in keeping water off the road and helped to drain the Fears property. He said he reminded Mr. Fears that the grader operation would stop up one end of the bridge and Fears explained that he would “shovel it out.”

Former decisions are of little value on a factual issue of whether Houston’s original entry was permissive rather than prescriptive. See Stone v. Halliburton, 244 Ark. 392, 425 S. W. 2d 325 (1968). Looking at the facts here from their four corners, and giving considerable credence to the chancellor’s evaluation of Houston’s testimony, we are unable to say that the chancellor’s finding of an original permissive use is against a preponderance of the evidence. It was of some significance that Jesse Fears was said to be a man who readily accommodated his friends. Of much more significance is the fact that Johnny Houston conceded that he obtained absolutely nothing in writing to support his claim of a perpetual right-of-way. The chancellor attached significance, and properly so, to a claim made by Houston which was inconsistent with an unlimited grant. On cross-examination Houston said he thought at the time of the transaction if he used the road seven years it would be his property. The manner in which Jesse Fears conducted himself with respect to the road is very indicative that he granted only a permissive use. In 1946 or 1947 it was Jesse Fears who had a ditch dug on the north side of the road; in 1953 Houston was engaged in doing some type of repair to the road and Fears ordered Houston away and took over the task; then at some unknown date while Houston still owned his forty the north fence was reduced in length to some 250 feet, presumably to give Fears a more unrestricted access to the road. Finally, appellee testified, and it was not contradicted, that neither Houston nor Williams ever claimed to him that they had obtained a dominant interest in the road.

Appellant contends that open and continued use of the road over occupied lands for a longer period than seven years created a presumption of a claim of right and shifted the burden of proof to appellee. Appellant cites Boullioun v. Constantine, 186 Ark. 625, 54 S. W. 2d 986 (1932). That rule does not apply here because it is shown that entry was gained for permissive use.

Appellants next contend that their utilization of the road ripened into a prescriptive right. On this point appellants carry a heavy burden. Since the use was initiated as permissive it cannot ripen into a prescription, irrespective of the lapse of time, until positive notice of adverse or hostile claim is conveyed to the owner and holding continues thereafter for the statutory period. Harper v. Hannibal, 241 Ark. 508, 408 S. W. 2d 591 (1966). As previously pointed out, we find no evidence that either Houston or Williams ever did anything to bring such notice home to appellee or his predecessor in title; in fact the evidence is to the .contrary. Appellants point out, and correctly, that long and continued use and without objection, may couple with other circumstances to become a deciding factor as to whether original permissive use has been converted to prescriptive use. See Fullenwider v. Kitchens, 223 Ark. 442, 266 S. W. 2d 281 (1954). Yet all those circumstances must combine to bring home to the servient owner a clear notice of hostility. Those circumstances are not in proof in this case. As stated by appellants, a permissive user may so change the usage as to bring home to the owner an adverse claim. For example, Houston used the road as a passageway to his house, while appellants did not use the house. On the other hand both Houston and appellants utilized the passageway principally for transporting implements of farming and for bringing out their products. We see no drastic difference in the utilization of the road proper. We do not think appellants met their burden of establishing a conversion from permissive use to a prescriptive right.

The charge against appellee of laches is without merit. Permissive entry and absence of notice of any claim of prescriptive right, both of which have been discussed, make laches inapplicable. The first notice of any claim of vested right we find was the occasion in 1967 when Troy Williams and appellee conferred about needed improvements on the road.

Affirmed.