text:
    ST. VINCENT INFIRMARY et al v. Deborah A. CARPENTER
    CA 79-369
    597 S.W. 2d 126
    Court of Appeals of Arkansas
    Opinion delivered April 2, 1980
    Released for publication April 23, 1980

      Barber, McCaskill, Amsler, Jones & Hale, for appellants.

      McHenry, Skipper & Choate, for appellee.
   Ernie E. Wright, Chief Judge.

This is an appeal by the respondents from a decision of the Workers’ Compensation Commission awarding benefits to the appellee.

For reversal appellant contends there is no substantial evidence to support the Commission’s finding the claimant suffered an injury arising out of the course of her employment with respondent, and that the Commission erred in failing to find as to when, where and how the injury occurred.

Appellee testified she was twenty-five years of age, is a registered nurse and is employed by St. Vincent Infirmary in orthopedic surgery and at times in eye surgery. Her duties include lifting patients from operating tables and stretchers, holding legs and arms, and lifting and carrying heavy pans of instruments. At times holding of arms or legs involves an uncomfortable position that must be maintained for quite some period of time. The work involves heavy lifting. She experienced no physical problem in her work until the late summer or fall of 1978 when she woke up one morning with pain in her right buttock and leg. This lasted about 24 hours and she received no medical treatment for the condition. On January 11, 1979, she woke up with pain in her right buttock and leg. The weekend before January 11 she was on weekend duty. She worked about seven hours straight on Saturday evening, and about fourteen hours straight on Sunday. By the end of the day Sunday she was experiencing considerable pain in her legs. She had no history of back problems prior to going to work for the respondent in April, 1978. She was treated by Dr. Lipke, and on his recommendation, she took leave from work for a week. She returned to work after the week off and worked through February 22, 1979. She continued to have pain in her leg, her back was hurting, she had muscle spasms and experienced numbness. Dr. Lipke hospitalized her from February 23 to March 9. She received physical therapy and had a myelogram. She was again hospitalized March 30, and after further tests had herniated disc surgery. After leaving the hospital April 17, she convalesced until June 11, 1979, when she returned to work for the respondent and was assigned to light duty.

The claimant was frank to state she did not know just when or how the injury to her back occurred. At Dr. Lipke’s suggestion she made an incident report to her employer on January 22, 1979, as Dr. Lipke was of the opinion her condition was job related. In her claim for compensation she stated the cause of injury to be “general lifting and bending activities as a surgical nurse.”

The matter of other possible activities or injuries that might account for the claimant’s back condition were explored in the testimony, and there were no non-job activities or injuries revealed as a probable cause of the back problems.

There was other testimony that some of the surgical instrument trays handled by the nurses in orthopedic surgery weighed 32 pounds, and that the nurses do have to lift the patients especially after surgery. There was also other testimony that nurses’ duties in orthopedic surgery involve strenuous physical work.

The claimant’s aunt testified she had occasion to talk to the claimant by telephone on the Sunday night before January 11, and that the claimant was complaining of being tired from being on her feet eleven or twelve hours straight at work that day.

Reports of Dr. Lipke, an orthopedic surgeon, were received in evidence. He states the claimant gave a history of onset of an acute back pain radiating into her right leg on the morning of January 11. His examination on that day revealed considerable limitation of the lumbar spine as well as a positive straight leg raising test on the right and the contralateral left side. It was his opinion she had sustained an acute herniated nucleus pulposus. He prescribed medications and limited activities. It was his feeling the injury was secondary to her work, which requires lifting patients on and off the operating table and supporting extremities prior to and during surgery. He could not imagine the claimant sustained an acute herniated nucleus pulposus while asleep. Her condition deteriorated, and she eventually required surgery. The surgery was apparently successful and appellee was able to return to light duty.

In his last report dated June 8, 1979, Dr. Lipke expressed the opinion the claimant has sustained a 15% permanent partial impairment to the body as a whole, and characterized her injury as job related. As an orthopedic surgeon he was acquainted with the nature of the duties of a nurse assigned to orthopedic surgery, and as the treating physician, he had the benefit of the patient’s history.

From a review of the record we conclude there is substantial evidence to support the Commission’s opinion adopting the administrative law judge’s finding the claimant sustained an accidental injury in the course of her employment with respondent on or about January 11, 1979, resulting in temporary total disability and in permanent partial disability of 15% to the body as a whole. As the finding is supported by substantial evidence, the rule is well settled that on appeal from the finding we affirm. Reynolds Metals Co. v. Cain, 243 Ark. 483, 420 S.W. 2d 872 (1967).

The respondents, in a motion to reconsider, requested the Commission to make specific findings of fact as to the date the claimant sustained a compensable injury and to set forth the basis for said finding as to when, how and where the injury occurred. The motion to reconsider was denied, and appellants contend the Commission erred in not making the specific findings. The opinion of the administrative law judge was adopted by the Commission, and it reflects a finding claimant sustained an accidental injury on or about January 11, 1979, arising out of and in the course of her employment.

The Commission did not err in denying respondents’ motion to reconsider and to make more specific findings.

The Arkansas case law has long upheld the compensability of gradual injuries which arise out of and in the course of employment. In W. Stanhouse & Sons, Inc. v. Simms, 224 Ark. 86, 272 S.W. 2d 68 (1954), the Supreme Court said:

We have long adhered to the rule that an accidental injury may stem not only from a specific incident or a single impact, but also may result by a continuation of irritation upon some part of the body. — Neither do we require the injured workman to make inescapable proof that said accidental injury occurred on a date certain. A reasonably definite time is all that is required.

Affirmed.


source: Caselaw Access Project

author: Steele Hays, Judge. Per Curiam.

license: Public Domain

text:
    W.E. GALLION v. Mack TOOMBS
    CA 79-199
    597 S.W. 2d 842
    Court of Appeals of Arkansas
    Opinion delivered April 2, 1980
    Review Denied April 30, 1980
    Released for publication April 30, 1980

      Bradley & Coleman; by: Douglas Bradley, for appellant.

      Branch & Thompson, by: Robert Branch, for appellee.
   Steele Hays, Judge.

Appellant entered into a written contract with appellee to drill two irrigation water wells and install certain pumps and equipment for an agreed price of $12,500.00. Subsequent to the written contract some charges were orally agreed upon, and appellant claimed extra charges for a total amount of $15,911.10. Appellee paid appellant $9,-166.66, but declined to pay any more.

Appellant brought this action to recover the alleged outstanding indebtedness. Appellee denied the indebtedness to appellant and filed a counterclaim, alleging breach of contract, breach of warranty and damages.

At trial, the issues were submitted to the jury, which rendered a verdict for appellee on his counterclaim in the sum of $9,000.00, and appellant brings this appeal.

Appellant alleges five points for reversal. He first alleges the trial court erred in admitting evidence to vary the terms of the written contract. He argues the written contract merged all prior negotiations, and evidence should not have been permitted to vary the terms of the written contract. The test of admissibility in such cases is whether the evidence offered tends to alter, vary or contradict the written contract, or whether it tends to prove a part of the contract about which the written contract was silent. In the former instance, the testimony is inadmissible; in the latter, it is allowed. Loe v. McHargue, 239 Ark. 793, 394 S.W. 2d 475 (1965). It is evident the written contract did not contain the entire agreement, and the trial judge properly admitted parol testimony to prove parts of the agreement not reduced to writing, Lane v. Pfeifer, 264 Ark. 162, 568 S.W. 2d 475 (1965).

Appellant’s second point for reversal is that the trial court erred in admitting speculative evidence of damages. Appellee was permitted to introduce evidence of estimated gross income from four acres of rice which appellee contends he planted, but which he failed to produce and harvest in 1975 because of lack of irrigation water the well was expected to produce, without proof of harvesting and marketing expense. Appellant objected on the ground crop loss was not the correct measure of damages on the land not cultivated. However, the appellee’s evidence was that in 1975 four acres of rice had been planted, but failed to produce because the well did not supply 1250 gallons of water appellant warranted. Also, there was evidence from which a jury might find crop damage in 1975 was reasonably foreseeable. We find no error in allowing evidence as to the 1975 crop damage. However, it was error for the court to allow testimony by appellee of his gross income loss on production on the four acres and other acreage without evidence of what the cost would have been in the harvesting and marketing of the portion of the crop allegedly not produced because of the water shortage. Without this evidence we conclude the jury’s verdict was based on speculative evidence. While the appellant’s objections to the evidence could have been more to the point, we find the appellant sufficiently called the court’s attention to the error in the evidence especially when counsel for appellant objected and stated, “I know I have got a continuing objection, but this is so highly speculative and doesn’t meet the requirements for measure of damages”. The error was compounded by the admission of appellee’s exhibits reflecting his computations of alleged crop loss and reflecting a claimed “total loss” without showing harvesting and marketing expenses. Dickerson Construction Co. v. Dozier, 266 Ark. 345, 584 S.W. 2d 36 (1979); Sullivan v. Voyles, 249 Ark. 948, 462 S.W. 2d 454 (1971).

Supplemental Opinion on Denial of Rehearing delivered April 30, 1980

As the case must be reversed for the error above discussed, we do not reach the other alleged errors.

Reversed and remanded.

Per Curiam.

In our original opinion handed down April 2, 1980, we directed this case be remanded. The circuit court judgment was in favor of the defendant-appellee on the claim and the counterclaim. Our reversal is only of the judgment on the counterclaim, thus only the counterclaim need be retried upon remand. The judgment on the claim of the plaintiff-appellant and in favor of the defendant-appellee is affirmed. Our original opinion is amended to recite that the case is affirmed in part and reversed in part and remanded.


author: Steele Hays, Judge.

text:
    Steve and Hertha ROY v. INTERNATIONAL MULTIFOODS CORPORATION d/b/a FARMERS MARKET AND SUPPLY
    CA 79-239
    597 S.W. 2d 129
    Court of Appeals of Arkansas
    Opinion delivered April 2, 1980
    Released for publication April 23, 1980

      Richard Quiggle, for appellants.

      House, Holmes & Jewell, by: James F. Swindoll,. for appellee.
   Steele Hays, Judge.

This is a dispute concerning a settlement offer of an unliquidated claim in the amount of $5,598. Appellants had bought feed from appellees on credit. When they fell behind on their payments on an open account, they were asked to execute a promissory note. They executed the note as requested.

After appellants fell behind on their payments pursuant to the terms of the note, appellee brought suit. Appellants alleged as a defense that the note failed to comply with the disclosure requirements under the Truth-in-Lending Act.

Subsequently, appellee, through its counsel, proposed to settle the disputed claim in the amount of $1,000. Appellants responded through their attorney by sending a letter purporting to accept the settlement offer and stating that he would let appellee know within a few days when he would tender payment. A period of approximately three weeks expired during which telephone conversations were had between the attorneys for the opposing parties. Then, counsel for appellee wrote a letter to appellants’ attorney informing him that because of his client’s delay, the settlement offer was no longer available. He said that the settlement offer was conditioned upon payment being made within ten days. Appellants filed a motion to declare a settlement and for an order of dismissal. The Circuit Judge denied both motions. Appellants appeal from the order.

Appellants argue on appeal that the attorneys had entered into an executory accord which was enforceable against the appellee. However, we find a jurisdictional question in . this appeal which neither party has raised; namely, was the order denying appellants’ motion a final, appealable order. We think not.

Since the order was dated July 31, 1979, the New Rules of Appellate Procedure would govern. Rule 2 of the new Rules of Appellate Procedure states:

a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the trial court;
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action;
3. An order which grants or refuses a new trial;
4. An order which strikes out an answer, or any part of an answer, or any pleading in an action;
5. An order which vacates or sustains an attachment or garnishment;
6. An interlocutory order by which an injunction is granted, continued, modified, refused, or dissolved, or by which an application to dissolve or modify an injunction is refused;
7. An interlocutory order appointing a receiver, or refusing to wind up a pending receivership or to take the appropriate steps to accomplish the purpose thereof, such as directing a sale or other disposal of property held thereunder.
(b) An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment [.]
(c) Appeals under subsections (6) and (7) take precedence in the Supreme Court.

The Arkansas Supreme Court has stated that even when the parties have not raised the issue, the question of a final order is a jurisdictional question which the appellate court can raise itself. Arkansas Savings & Loan Association v. Cornell Savings & Loan Association, 252 Ark. 264, 478 S.W. 2d 431 (1972); McConnell v. Sadle, 248 Ark. 1182, 455 S.W. 2d 880 (1970). Not only does the court have the power to raise the issue, but it is the court’s duty to determine whether it had jurisdiction over the subject matter. Arkansas Savings & Loan Association, supra; 20 Am. Jur. 2d 452, Courts § 92.

In the instant case, the order issued by the circuit judge which denied appellants’ motion to dismiss and to declare a settlement does not come within any of the requirements stated in Rule 2. The overruling of a motion to dismiss an action has been held not to be “final judgment” from which an appeal would lie. Wicker v. Wicker, 223 Ark. 219, 265 S.W. 2d 6 (1954).

In order for a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. McConnell v. Sadle, supra; Piercy v. Baldwin, 205 Ark. 413, 168 S.W 2d 1110 (1943).

The appeal is dismissed and the case is remanded to the Circuit Court.


author: Marian F. Penix, Judge.

text:
    HART’S EXXON SERVICE STATION, Employer, FARM BUREAU INSURANCE COMPANIES, Insurance Carrier v. Joe PRATER
    CA 79-337
    597 S.W. 2d 130
    Court of Appeals of Arkansas
    Opinion delivered April 2, 1980
    Released for publication April 23, 1980

      Daggett, Daggett & Van Dover, by: Jesse B. Daggett, for appellants.

      Ray & Donovan, for appellee.
   Marian F. Penix, Judge.

The claimant, Joe Prater, suffered a compensable injury August 21, 1977 while an employee of Hart’s Exxon. At the time of the accident claimant had a second job with the Marianna School District. Hart’s Exxon turned in a claim to the Farm Bureau Insurance office in Marianna which mailed a claim notice to Farm Bureau in Little Rock on August 23. On August 29, Claimant employed an attorney to represent him. Farm Bureau mistakenly processed the claim as an accident covered by a general liability policy. On September 7, 1977 the local Farm Bureau’s agent discovered the error and refiled the claim as a workers’ compensation claim. On September 15 Farm Bureau contacted a local adjuster requesting information on the claim. On September 19 the Claimant’s attorney mailed an A-7 form to the Arkansas Workers’ Compensation Commission and a copy was forwarded to Farm Bureau. On September 28 the Farm Bureau mailed checks to the Claimant — five weeks from the date of the injury. The Claimant was awarded compensation based on his earnings from Hart’s Exxon alone. The award was for permanent partial disability of 35% to the body as a whole. The Commission affirmed the Administrative Law Judge’s holding that the claim had been controverted.

The Respondents appeal from the finding of 35% disability to the body as a whole and from the determination that the claim had been controverted in its entirety.

The Claimant appeals alleging the compensation rate should have been based upon his combined earnings from his two jobs.

I

The Respondents deny having controverted the claim in its entirety. The respondents concede 8% to the body as a whole but controvert all above that amount.

Our question becomes, was there substantial evidence to support the Commission’s finding that the claim was controverted in its entirety, and was there substantial evidence to support the 35% permanent partial to the body as a whole.

The Respondents argue the 15 day period within which respondents must pay benefits commences from the date the employee-claimant serves notice on the Commission. The first duty to report an injury to the Workers’ Compensation Commission lies with the employer not the employee. Ark. Stat. Ann. § 81-1334.

The Commission’s first notice of this injury was not provided by the employer within 10 days as required by § 81-1334, supra. The Claimant’s attorney first informed the Commission. The employer is not entitled to extend its duty to pay compensation within 15 days by withholding the filing of the claim with the Commission in the first instance. The employer was aware of the injury on the date it occurred, August 21. The employer did not notify the Commissson within the 10 days as required by law. The primary responsibility is on the employer.

If there was a mistake made by Respondents in processing the claim initially, the Respondents must bear the resultant loss. If the Respondents could plead clerical or administrative mistake, the injured worker would be placed in an untenable position. He would have no way to rebut such a defense to controversion. The Farm Bureau discovered its process error on September 7. Respondents still delayed payment 21 more days even though Hart’s Exxon knew of the injury on August 21. The compensation payments were due to begin the 15th day after Hart’s Exxon had notice of the injury. Such date would have been September 5. The first installment was mailed to Claimant on September 28 — some 5 weeks from the date Hart’s Exxon knew of the injury.

We find substantial evidence to support the finding of controversion.

II

The Commission found 35% disability. Dr. Joe Lester estimated the Claimant’s permanent anatomical impairment to be 8%. At the time of the injury, the Claimant was 40 years old, had a tenth grade education and a stuttering impediment. Because of his injury, the Claimant can no longer do the general service station duties required at Hart’s Exxon. Since receiving the crushing injury between two motor vehicles the Claimant has had problems with urinary incontinence. He has continued his job as janitor but has Youth Corps workers to help with mopping and with running the buffer.

We find substantial evidence to support the Commission’s award of 35%. See Burks, Inc. v. Blanchard, 259 Ark. 76, 531 S.W. 2d 465 (1976) which stated:

In approving disability ratings in excess of the percentage disability based on medical evidence alone, consideration is given not only to the medical evidence, but also to the Claimant’s age, education, experience, and other matters affecting wage loss.

The Respondents point to testimony which indicates the Claimant now directs school traffic 45 minutes in the morning and 30 minutes in the afternoon and is a volunteer deputy sheriff and they urge a reversal for lack of substantial evidence. On review, this Court must look to the evidence most favorable to the appellee claimant and affirm if there is any substantial evidence to support the Commission’s decision. Dillaha Fruit Co. v. LaTourrette, 262 Ark. 434, 557 S.W. 2d 397 (1977); Foster v. Johnson, 264 Ark. 894, 576 S.W. 2d 187 (1979); Aluminum Company of America v. McClendon, 259 Ark. 675, 535 S.W. 2d 832 (1976). The question on appeal is not whether we would have reached the same decision. We hold there is substantial evidence to support the Commission’s finding. Dillaha Fruit Co., supra.

Ill

The Claimant’s appeal contending his compensation should be calculated on the combined incomes of his employment with Hart’s Exxon and the Marianna School District must be denied.

The premiums received by the insurance carrier to cover the risk must be determinable. They are generally based on the payroll of the employer. Quite obviously, the risk insured by a policy of workers’ compensation could not be determined with any degree of accuracy if compensation rates were computed on incomes outside the covered employment.

Ark. Stat. Ann. § 81-1302(h) provides:
(h) ‘Wages’ means the money rate at which the service rendered is recompensed under the contract of hire inforce at the time of the accident. . . .
Ark. Stat. Ann. § 81-1312 provides:
. . . Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident. . .

Because the Workers’ Compensation Act is remedial it should be construed liberally. But liberal construction does not mean enlargement or restriction of any plain provision of the law. If a statutory provision is plain and unambiguous, it is the duty of the Court to enforce it as it is written.

There is no provision for combining wages. In 2 Larson’s Workmen’s Compensation Law, § 60.30, Professor Larson discusses the majority rule as being “the earnings may be combined if, but only if, the employments were ‘related’ or ‘similar’ ”.

In the instant case the service station job and the janitorial job at the school are not related nor similar. The school district did not pay workers’ compensation premiums to Respondent Carrier. To remain solvent, the insurance carriers must receive a premium commensurate with the risk assumed.

For the above reasons, we affirm the Commission on all points and allow an additional attorney’s fee of $250.00 to the Claimant’s attorney.


text:
    Willis ESKRIDGE v. GOLDMAN & CO. and AETNA CASUALTY & SURETY CO.
    CA 79-338
    598 S.W. 2d 425
    Court of Appeals of Arkansas
    Opinion delivered April 2, 1980
    Review Denied May 14, 1980
    Released for publication May 14, 1980

      Robert R. Cortinez and John Wesley Hall, Jr., of counsel, for appellant.

      Friday, Eldredge & Clark, by: Joseph E. Kilpatrick, for appellees.
   Marian F. Penix, Judge.

Claimant fell from a forklift on April 29, 1977. He was knocked unconscious. This occurred while he was employed by Goldman & Co.

He returned to work May 29, 1977, with permission of his doctor Dr. Worthie Springer. After working nine days he had to quit because of pain. Dr. Springer referred him to Dr. John Hundley. Claimant remained off work until late August 1977. He returned to Goldman & Co but was not rehired. In late August he began to work with Southern Oil Mill. He did not work every day. Some days the plant had breakdowns. Other days he was unable to work because of pain. He stopped working in October 1978 because of back trouble and arthritis. Claimant, 63 years old, began to draw Social Security when he left Southern Oil Mill. The only pre-award payment to Claimant from the employer’s carrier, Aetna Casualty & Surety Co., was for $317.59 paid on July 25, 1977.

The Administrative Law Judge awarded temporary total disability benefits from April 30, 1977 to August 29, 1977 with the exception of a nine day period which claimant worked. He further awarded benefits representing 10% permanent partial disability to the body as a whole. The Workers’ Compensation Commission affirmed the award. Claimant appealed alleging he is totally and permanently disabled. He alleges error in the finding of a weekly rate less than $84.00. The claimant also contends respondents should have been penalized for late payments of temporary total, and the claimant should have been reimbursed for mileage expenses for medical treatment.

I

We must determine, from a careful study of the record, whether the Commission had substantial evidence to support its award of 10% permanent partial disability.

The claimant was off work for approximately 3 months following the injury — or until late August, 1977. At that time, he began work with Southern Oil Mill and continued there for 13 months.

Dr. John Hundley, orthopedic surgeon, reported he could find no permanent disability. Dr. Worthie Springer found 10% permanent partial disability. We find substantial evidence to support the Commission’s determination.

II

The Commission found the compensation rate to be $76.65. The Claimant contends it should be $84.00.

The only real evidence indicating claimant’s weekly wage was the A-8 filed by the employer. This showed the average weekly wage to have been $115.00. The Commission based its award on this figure.

Although the claimant testified he worked overtime, his testimony was vague and inconclusive. The claimant introduced into evidence his 1976 tax return. The hearing, however, was in March 1979. He did not introduce his tax return for 1977 nor for 1978. He did not introduce a W-2 nor did any fellow employee testify as to the amount of work he performed at Goldman & Co.

Goldman & Co. had gone out of business before the hearing and there were no records available. However, the claimant has the burden of proving his case by a preponderance of the evidence. The finding of the administrative law judge, adopted by the Commission, was that the claimant did not meet his burden of proving his average weekly wage was more than $115.00 per week as reported on the A-8. We hold the A-8 and the testimony of Sheryl Lipscomb, the employee of Aetna, to be substantial evidence upon which the Commission could and did make its award based upon the average weekly wage of $115.00.

III

Claimant is seeking 6% penalty on the entire award. The carrier concedes the first installment was not paid within the fifteen days as reqired by Ark. Stat. Ann. § 81-1319(e) and that claimant is entitled to 6% penalty on the July 27, 1977 payment. We find § 81-1319(e), supra, applies only to installments payable without an award:

(e) If any installment of compensation payable without an award is not paid within fifteen [15] days after it becomes due, as provided in subsection (b), there shall be added to such unpaid installment an amount equal to six [6] per centum thereof ....

Therefore, the 6% penalty is applicable only to the late payment of $317.59. This penalty should be paid by the carrier to the claimant.

IV

Claimant contends he is entitled to a flat rate of 15 cents per mile for 382 miles spent going to and from the offices of Drs. Springer and Hundley. He is claiming a mileage allowance. The burden is on the claimant to prove he is entitled to reimbursement of expenses incurred in traveling to and from the doctors’ offices. Horseshoe Bend Builders v. Sosa, 259 Ark. 267, 532 S.W. 2d 182 (1976). The record reflects a certain number of trips were made. Also the record reflects the distance from the claimant’s home to the doctors’ offices. However, there is nothing in the record showing actual expenses incurred. If we are left to conjecture we could imagine the trips were made by bicycle, by automobile, or perhaps by foot. Without some proof there can be no award for travel.

Affirmed as modified.


author: George Howard, Jr. Judge.

text:
    Sammy CHILDS and Harry L. CHILDS v. Chester Douglas BERRY, Jr.
    CA 79-245
    597 S.W. 2d 134
    Court of Appeals of Arkansas
    Opinion delivered April 2, 1980
    Released for publication April 23, 1980

      J. Sky Tapp, for appellants.

      Charles G. Vaccaro, for appellee.
   George Howard, Jr. Judge.

This is an appeal from a summary judgment on the issue of liability and a jury’s verdict awarding appellee $13,000.00 in appellee’s action for false imprisonment, assault and battery.

On July 25, 1976, at approximately 11:30 p.m., Sammy Childs, the son of Harry L. Childs who is the owner of “Childs Fabricating,” observed two figures in the process of burglarizing a building of his father’s firm. The building was enclosed by a fence. Sammy observed one of the firm’s trucks backed up to the fence and a motorcycle parked nearby. As Sammy approached the building, one of the individuals ran to the truck and yelled “Run, Doug, Run.” Sammy kicked the individual two or three times and “jerked him out from underneath the fence.” Sammy discovered that the individual was appellee whom he knew. Appellee told Sammy that the individual who drove off in the firm’s truck was Roger, an employee of the firm.

Sammy carried appellee to the home of Harry L. Childs. Subsequently, appellee was carried to a shop building and was handcuffed to a column until Harry, sometime later, decided to summon the police.

Appellee filed a lawsuit against appellants seeking recovery of $25,000.00 for false imprisonment, assault and battery. The appellants answered by filing a general denial. The appellee served the following requests for admission which were admitted by appellants:

1. Sammy Childs struck the plaintiff several times.
2. Harry L. Childs approved of the striking of the plaintiff by his son.
3. Harry L. Childs attempted to strike the plaintiff.
4. Denied that appellee was “forcible and against the will of the plaintiff’ taken to “your shop . . . and handcuffed ... to a column,” but “he came freely.”

Appellee submitted three affidavits in support of his motion for summary judgment.

Appellants, in resisting the motion for summary judgment, filed their response and the affidavits of Harry L. Childs, Sammy Childs and Charles Duboise.

The trial court granted a summary judgment on the issue of liability, but held that there was a genuine issue of fact relative to damages.

The jury awarded appellee $13,000.00 in damages — $3,000.00 as compensatory damages and $10,000.00 in punitive damages.

The appellants have designated ten points for reversal.

First, appellants contend that the trial court erred in granting a summary judgment to appellee on the issue of liability.

Rule 56 of the Rules of Civil Procedure provides:

“(c) ... A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.”

Where the facts are not disputed and the law can be applied, a summary judgment is an appropriate means of avoiding the expense and time of a formal trial. Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76.

Appellee alleged in his complaint that he was falsely imprisoned, detained and restrained by appellants against his will; that appellants intentionally, wantonly, and willfully and with malice, did beat, kick and batter appellee without cause. Appellants filed a general denial to the complaint.

In response to requests for admission, appellants admitted that appellee was handcuffed to a pole, kicked several times and detained for approximately an hour and a half before the police were summoned.

It is plain that there was no genuine issue of fact regarding the question of liability. We hold that the trial court was correct in granting a summary judgment on the issue of liability.

Appellants argue that the verdict is both excessive and unsupported by the evidence.

We are persuaded that there is substantial evidence to support the verdict of the jury. Appellee was apprehended, kicked several times, while on the ground, and was compelled to accompany Sammy to the home of Harry Childs who admitted that he attempted to strike appellee; appellee was required to accompany Sammy and Harry to a building where appellee was handcuffed to a column. One and one-half hours later, appellee was taken into custody by police and remained in jail for three weeks. Appellee lost $350.00 in wages, sustained physical injuries over and about his body, including a swollen nose, black eyes, cuts and bruises about his face, and mental anguish.

Appellants argue that appellee is a convicted felon and as a consequence, his claim of damages for humiliation has no basis in fact. The question of damages, as the trial court held, presents a fact question to be resolved by the jury. We are unable to say, from this record, that the jury’s verdict is not supported by substantial evidence or is excessive because appellee is a convicted felon. Moreover, it must be remembered that even a convicted felon has rights and privileges which are secured to him under the laws and constitutions of the State of Arkansas and the United States.

Finally, appellants have asserted numerous purported errors on the part of the trial court in its instructions to the jury. In an effort not to prolong this opinion, we deem it sufficient to state that we have carefully reviewed all of the claims of error by the appellants and hold that we find no prejudicial error.

Affirmed.


author: James H. Pilkinton, Judge.

text:
    HUNTER MEMORIAL UNITED METHODIST CHURCH et al v. Ross R. MILLIRONS et al
    CA79-257
    597 S.W. 2d 845
    Court of Appeals of Arkansas
    Opinion delivered April 9, 1980
    Released for publication April 30, 1980

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.

      J. R. Nash, for appellees.
   James H. Pilkinton, Judge.

By Act 1227 of 1975, extended session, the General Assembly amended the Arkansas Workers’ Compensation Law to provide that death benefits are payable to persons who were actually dependent upon the decedent employee. Ark. Stat. Ann. § 81-1315(c) (Repl. 1976). The Arkansas Supreme Court has had occasion to interpret this section of the compensation law since it was amended. See Roach Manufacturing Company v. Cole, 265 Ark. 908, 582 S.W. 2d 268 (1979) and Doyle’s Concrete Finishers v. Jo Ellen Moppin, Guardian, 268 Ark. 167, 594 S.W. 2d 243 (1980). In the present case the Commission, aplying the amended act, held that Ross R. Millirons, as the widower of his deceased wife, Linda K. Millirons, was not entitled to death benefits for himself because he was not incapacitated to support himself at the time of her death. The Commission held, however, that the couple’s five minor children were entitled to recover benefits because they were actually dependent upon the mother at the time of her death. The circuit court affirmed the decision of the Workers’ Compensation Commission. An appeal and cross appeal bring both points to this court for review.

The basic facts are not in dispute and the only issue involved is whether the claimants are entitled to dependency benefits. On September 13, 1978, Mrs. Linda K. Millirons died by drowning during a flash flood which occurred in the Little Rock area. She was employed at the time by the Child Care Center operated by Hunter Memorial Methodist Church. It is conceded that Mrs. Millirons died as a result of a work related occurrence, and that the death claim is compensable. At the time of her death Mrs. Millirons’ average wage was $105.77 per week or $458.32 per month. The claimant, Ross R. Millirons, husband of the decedent, is a self-employed scrap iron dealer and has been so employed for the past several years, during which period of time his net income has averaged approximately $6,000 per year. For the taxable year preceding the date of death, Mr. and Mrs. Millirons had reported joint taxable income approximating $9,000. Of this amount, Mr. Millirons had reported a net taxable income of $5,836.54, and his wife had reported net taxable income of $2,815.10. The evidence is uncontradicted that the decedent was the legal wife of Ross R. Millirons, and the natural mother of their five children, Debra Lynn, age 16; Susan, age 14; Ross Jr., age 12; Lori, age 9; and Patricia, age 7, and that they were all living together at the time of the decedent’s death. It is also undisputed that both Mr. and Mrs. Millirons contributed substantially all of their joint income to maintenance of the family household. The only other income for the family came from a very small annual interest payment, amounting to $139.78, on certificates of deposit that the couple had purchased over the years from nichels and dimes saved to buy a home. In addition to the cash contributions Mr. Millirons made, the record is undisputed that he conducted at least a part of his business at the home premises, and was able to deduct from his federal income tax return percentages of his rental, utilities and phone bills. The record is also clear that Ross R. Millirons was not and is not incapacitated to support himself. It is undisputed that the children involved in the case before us meet the definition of a child as contained in the act. Ark. Stat. Ann. § 81-1302.

Dependency is a fact question. It is to be determined in the light of surrounding circumstances. Roach v. Cole, supra; Doyle’s Concrete Finishers v. Moppin, supra; and cases there cited.

The evidence is that Ross R. Millirons, his deceased wife, and the five minor chidren were all living together at the time of Linda K. Millirons’ death and that the entire family was dependent upon the wages which the deceased earned. In regard to the five minor children of the decedent, the Commission found that the children were entitled to full dependency benefits. It was of course the responsibility of the Commission to decide this issue of fact. As to the children, we find that the Commission’s concusions are supported by substantial evidence.

With respect to the husband, a more complicated question is presented. The Commission found that the entire family, including the widower, was dependent upon the wages which the deceased earned. When the entire record in this case is reviewed, the overwhelming weight of the evidence, both testimonial and documentary, conclusively shows that the claimants were wholly and actually dependent upon the support of the decedent. Although the widower of the decedent also worked, he was an unskilled, self-employed worker who was clearly dependent upon the income provided by the decedent for his support as well as the support of the five minor children aforementioned. Nevertheless, the Commission concluded that Mr. Millirons, as the surviving husband, was not entitled to dependency benefits as he was not, and is not, incapacitated; and therefore does not meet that requirement of Ark. Stat. Ann. § 81-1315 (c) which states, in part, as follows:

To the widower . . . and such compensation shall be paid during the continuance of his incapacity or until remarriage. Provided, however, the widower shall establish, in fact, some dependency upon the deceased employee before he will be entitled to benefits as provided herein.

The Administrative Law Judge pointed out the distinction which § 81-1315 (c) makes between widow and widower as to the requirement of benefits; and stated that the obvious discrimination between widow and widower may be unconstitutional under the equal protection clause of the federal constitution.

The pertinent part of the statute pertaining to widows reads:

To the widow . . . and such compensation shall be paid until her death or remarriage. Provided, however, the widow shall establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided herein.

Roach v. Cole, supra, says that the statute defines widow as “the decedent’s legal wife, living with or dependent for support upon him at the time of his death.” It defines a widower as “the decedent’s legal husband who, at the time of her death, was living with and dependent upon her for support and was incapacitated to support himself.” Thus this subsection of the act grants death benefits to any surviving dependent wife of a deceased employee, but restricts the availability of such benefits only to surviving dependent husbands who demonstrate incapacity at the time of the decreased female employee’s death. The Commission took note of this obvious difference; however, it felt it was for the courts and not a Quasi-Judicial Commission, as it is, to deal with any constitutional issue which may be involved. We decline the invitation, which originated with the Administrative Law Judge, to pass on the constitutionality of that part of the act for the reason that the surviving husband in this case has not raised the point. To the contrary, if we understand his position correctly, he has carefully avoided doing so for fear, as stated in his brief, that once a statute or provision which provides benefits to widows and widowers is declared unconstitutional and striken, those benefits might cease to exist entirely. He cites Westenberger v. Industrial Commission of Ohio, 20 N.E. 2d 252, 135 Ohio St. 211, as a basis for those fears. We express no opinion on the merit, if any, of his alarm. We simply do not reach the constitutional issue in this case.

Mr. Millirons does suggest that we adopt a different interpretation of this sub-section than found in Roach v. Cole, supra, by ignoring the “incapacity” requirement. We of course decline to do that in view of the wording of the statute pertaining to widowers, and the definition of that part of the act set out in Roach. While cross-appellant complains of the “interpretation” of the sub-section in question, as contained in Roach, and applied by the Commission, we fail to see how we could follow his suggestive interpretation without declaring all or part of the sub-section unconstitutional.

It follows from what has been said that the finding and order of the Commission denying benefits to the widower were correct under existing law, and the case as a whole must be affirmed.

Affirmed.


author: David Newbern, Judge. M. Steele Hays, Judge,

text:
    Olive M. LILE v. Sherry MATTHEWS
    CA 79-331
    598 S.W.2d 755
    Court of Appeals of Arkansas
    Opinion delivered April 9, 1980
    Review denied May 14, 1980
    Released for publication May 14, 1980

      Jim Hamilton and Harold Madden and Friday, Eldredge & Clark, by: John Dewey Watson, for appellant.

      R. David Lewis, for appellee.
   David Newbern, Judge.

This is a slander case in which we are asked to reverse a judgment awarding the appellee general damages of $14, $30,000 compensatory damages and $20,000 punitive damages. The appellant asserts, at first, two errors consisting of admissions of hearsay evidence. We agree with the appellant, but we find one of these errors was not prejudicial and the other went only to the question of damages and thus does not require complete reversal. The appellant argues further with respect to privileged communication. We do not find that argument persuasive.

The appellant, Olive Lile, was in the practice of befriending young persons whom she hired as companions and helpers. They lived in her home and helped with domestic and business chores. The appellee, Sherry Matthews graduated from high school. She lived with the appellant two months. The appellee’s testimony was that she left the appellant’s home and employ because she was somehow being “used” in financial transactions. While helping Ms. Lile balance her checkbook she found a cancelled check made out to her (the appellee) for $200 which she had not seen before. When she questioned Ms. Lile about it, Ms. Lile allegedly was unresponsive. The appellee said she was paid no wages by Ms. Lile, other than her room and board, but was allowed to charge items to Ms. Lile’s accounts at various stores from time to time.

The appellee testified that she was arrested and tried in 1975 for possession of stolen property, two costume jewelry bracelets and a clock, which Ms. Lile accused her of having taken. The appellee contended all three items were gifts from Ms.Lile, and that the clock had not been removed from the appellant’s home. That criminal trial resulted in the judge holding the case for one year after a hearing and then dismissing the charge.

In 1976, Cohn’s Department Store brought suit against the appellee and the appellant to collect for some items charged to Ms. Lile for wiiich she refused to pay because the charge tickets had been signed by the appellee. Ms. Matthews had signed her own name and not that of Ms. Lile. The suit was dismissed as to the appellee.

Freda Hendricks testified she was, in 1977, living in Ms. Lile’s home in a capacity like that described by the appellee, and upon entering Ms. Lile’s bedroom to deliver her newspaper one morning, she heard Ms. Lile talking on the telephone and describing the appellee as being “on dope,” and a thief as well as other remarks alleging she was sexually promiscuous. Ms. Henricks testified that Ms. Lile hung up the phone and told Ms. Hendricks she had been speaking with Mr. Stockard of Kempner’s Department Store because she had seen the appellee acting in a television commercial presented by the store, and she wanted to warn him. Ms. Hendricks testified the appellant called Dillard’s and Montgomery Ward’s before Ms. Hendricks left the room, and from another part of the house she later heard the appellant repeating the message the appellant had allegedly given Mr. Stockard.

The appellee testified that she heard about the allegations made to Kempner’s, and at that point she was highly embarrassed and depressed. She consulted a physician and was given medication. She said she thereafter gave up her fledgling modeling career because she was too embarrassed to seek work.

Other facts will be stated as necessary..

1. Hearsay Identification

At the trial, part of the deposition of Patti George was read into evidence. The essence of the textimony was, first, that Mr. Stockard had stated to Mr. Lynn Kempner in the presence of Ms. George that he had been told Sherry Matthews was a thief and “involved with drugs” and had “forged an account.” Mr. Stockard did not, on that occasion, reveal the source of that information. At the trial, he denied that it had come from Ms. Lile. Secondly, Ms. George testified as follows:

Q. Had Mrs. Lile been on the [Kempner’s] premises anytime shortly before this conversation with Mr. Kempner?
A. Yes she had.
Q. Can you tell me what about?
A. I don’t know if it was the day before or — I believe I was walking to the elevator. I don’t know Mrs. Lile. There was an elderly woman sitting in a chair outside his office. ... I asked Mrs. Cohn, who works at Kempner’s who the lady was. She said it was Mrs. Lile

This testimony had been objected to earlier in the proceedings, and the objection was renewed in a specific and timely manner. The objection was that Ms. Cohn’s identification of Ms. Lile was hearsay. The appellee argues it was not, citing cases which appear to have admitted identification evidence of this sort without much discussion why it does not violate the hearsay rule.

If this evidence was hearsay, we conclude it was harmless error to admit it. The jury had before it direct evidence that Ms. Lile had uttered the defamatory statements to Mr. Stockard and others, and that was the theory of the appellee’s case. The testimony identifying Ms. Lile as a person who was at the Kempner’s Store added nothing. Ms. George’s deposition is indefinite as to when Ms. Lile was there. It does not say “outside” whose office she sat.

Although it might be said that this evidence was calculated to prove Ms. Lile was in a position to have uttered the defamatory words at a time vaguely close to the incident Ms. George observed when Mr. Stockard told Mr. Kempner he had received derogatory information about the appellee, we cannot say there is any chance the verdict in this case was to any degree based on that evidence as opposed to the direct testimony of Freda Hendricks.

2. Privilege

The appellee’s complaint contained a count alleging liability of the appellant for her statements to a prosecuting attorney which led to her 1975 arrest. The appellant moved to strike that count on the ground that statements made to a prosecutor in connection with reporting a crime are privileged because they are part of “judicial proceedings.” Neither the appellant’s abstract nor the record, as far as we can determine, shows the specific action taken by the court on the motion. However, the court’s instructions make it clear the only allegation to be considered by the jury was Ms. Lile’s alleged statement to “an employee of Kempner’s.”

The appellant contends evidence of the 1975 arrest of the appellee should not have been admitted. The record shows the appellee testified she received two bracelets and a clock as gifts from the appellant. Just after that testimony was received, the direct examination of the appellee continued as follows:

Q. Did you subsequently get arrested?
A. Yes, I did.
Q. What was the charge.
MR. MADDEN [Defendant’s Counsel]:
Objection, your Honor, he is talking about some other court proceedings.
THE COURT:
Will you gentlemen approach the bench?
(Out of hearing of jury)
THE COURT:
Not for the purpose of showing malice or for the purpose of showing any wrongdoing in Mrs. Lile having the woman arrested, but simply for the purpose of disproving the statement that Mrs. Lile has alleged to have made that she was a thief, you may proceed.
MR. LEWIS [Plaintiffs counsel]:
I would also like it admitted for the purpose of proving malice, your Honor.
THE COURT:
Well, whatever we call it doesn’t make it any difference to the jury, does it?
MR. LEWIS:
I don’t suppose.
THE COURT:
Okay, I am going to rule it out for that purpose right now anyhow. I think, very probably, if Mrs. Lile made these statements, they, of themselves, would be adequate to show malice. But anyhow, I am going to let you go ahead.)
Q. What were you accused of doing in that charge?
A. Possession of stolen property.
Q. Was that a felony charge?
A. Yes, it was.
Q. What was it that you were accused of having?
A. Clocks, jewelry, I don’t know what all she accused me of having.
Q. Do you recall what jewelry was discussed at that trial?
A. The two costume jewelry bracelets that she had given me.
Q. And the clock.
A. And the clock which I never removed from her house.
Q. Do you recall how that litigation came out?
A. Yes, Judge Cole, in that court, dismissed it at that time pending for one year, which after one year, he dismissed it.

The objection did not mention privilege. No statement of what Ms. Lile allegedly told the prosecutor was admitted, although reading between the lines might reveal the appellee implied statements made by Ms. Lile when the appellee said “I don’t know what all she accused me of having.” Even if a statement of what Ms. Lile said had been admitted, the privilege which may apply to liability for the statement is not an evidentiary privilege. See, 8 Wigmore, Evidence, § 2363 (4) (1961). Thus, we find no error on that point.

3. Excessive Damages

On direct examination the appellee gave the following testimony:

Q. Were the Kempner’s people pleased with that commercial?
A. Yes, they were.
Q. Were you, after the conclusion and making of that commercial, offered or told that you would get subsequent spots for Kempner’s?
A. Yes, Lynn Kempner, I saw him out in public one night and he told me that the commercial went well.
MR. MADDEN:
Objection.
THE COURT:
I think the objection to what he told her would be valid, she may testify that she was promised and she didn’t get it.
A. Mr. Kempner told me. . .
Q. Were you promised future spots?
A. Yes, I was promised.

This testimony as to what the appellee was “promised” was hearsay. We cannot understand the distinction the trial court made between that which the appellee was “told” and that which she was “promised.”

The appellee testified as to how she had given up her modeling career because of her embarrassment and her fear of going into stores where she might be employed, but the only evidence of a direct loss of income resulting from the alleged defamation was the hearsay conversation with Lynn Kempner. Thus, we find the error in admitting that evidence was prejudicial. As the prejudice goes only to the extent of the appellee’s actual financial loss due to the alleged defamation, however, and not to the question of liability, we need not reverse the entire judgment.

The appellant’s final point is that the damages are generally excessive, especially in view of the lack of evidence of any financial loss to the appellee. We agree there is little evidence of direct financial loss to the appellee, especially in view of our rejection of the testimony about “future spots.”

We recognize compensatory damages in defamation cases need not be based on proof of financial loss. Taylor v. Gumpert, 96 Ark. 354, 131 S.W. 968 (1910). See also, Prosser, Torts, pp. 754 et seq., (4th ed. 1971). However, there is another serious problem with the damages portion of this judgment. Although the instructions to the jurors and the nature of the form of their verdict were not specifically made issues on appeal, the appellant does argue the damages were generally excessive. In attempting to evaluate this point, we must look to the instructions and the jury’s response to them.

The court instructed the jury on damages as follows:

COURT’S INSTRUCTION NO. A
“Plaintiff claims damages from the defendant and has the burden of proving the following essential propositions:
Third, if the plaintiff has proven the foregoing element, [the false statement to a Kempner’s employee] she is entitled to recover general damages.
Fourth, in addition to general damages, plaintiff is entitled to receive compensatory damages, that are proven by a preponderance of the evidence, such as embarrassment and mental anguish.
PLAINTIFF’S REQUESTED INSTRUCTION 7A
AMENDED
“By general damages, I mean that even if plaintiff proves no actual damages, she is entitled to reasonable damages if the words accuse her of a crime or are of the type likely to injure a person in a profession or trade, damage to reputation from such words is presumed.”
(AMI 2217)
“In addition to compensatory damages for any actual loss that plaintiff may have sustained, she also asks for punitive damages. . . .”

Given these instructions, we cannot tell if it was the duty of the jury to determine actual loss to the plaintiff as “compenatory damages” and the kind of presumed damages attendant upon loss of or injury to reputation as “general damages,” or vice versa. We cannot say what the jury intended when it awarded $30,000 in “compensatory damages” and $14 as “general damages.”

Although the appellee showed a $12 medical expense, we can find no admissible evidence of “actual loss” suffered by the appellee other than this minor one. The instructions were very confusing, and although we might surmise the jurors’ intent, we should not.

Given this situation, we can affirm the award of $14 “general damages” and $20,000 punitive damages. We cannot, however, approve the $30,000 “compensatory damages,” as we do not know for certain whether the jury might have meant it to have been for demonstrated losses to the appellee as the last of the partially quoted instructions seems to require. In view of our rejection of the evidence of promise of future modeling contracts, we can find no evidence of actual loss, other than the $12 medical expense.

Although we could simply modify the judgment and affirm it, Coca Cola Bottling Co. of Southwest Ark. v. Carter, 202 Ark. 1026, 154 S.W. 2d 824 (1942), it will be fairer to offer the appellee an opportunity to remit $30,000 of the judgment or submit to a new trial. Chicago, R. I. & P. Ry. Co. v. Batsel, 100 Ark. 526, 140 S.W. 746 (1911).

The judgment will be affirmed if within seventeen calendar days from the date of this decision the appellee enters a remittitur of $30,000; otherwise the case is reversed and remanded for new trial.

Hays and Penix, JJ., dissent.

M. Steele Hays, Judge,

dissenting. I would affirm this case on appeal as I do not believe that we are justified in effectively setting aside the jury’s verdict for compensatory damages (albeit by way of remittitur) on a point not raised nor argued by either side on appeal. The point urged on appeal with respect to the verdict is that the damages are excessive, not that the instructions were improper. The majority opinion ignores our own rule, frequently applied, that the instructions must be abstracted, in order to be considered on appeal, and circumvents the rule that defamation of the present sort need not be dependent on specific evidence of pecuniary loss. The reasoning behind this cardinal principle of libel and slander is that some types of defamation are so clearly inimical to character, reputation and regard of the person defamed that injury to that person’s ability to earn a livelihood is presumed. Here there was substantial evidence the defamatory remarks not only would have such effect, but that loss of employment by the party offended was clearly intended by the appellant. Indeed, there was testimony the publication of the slander was not just at random, but was specifically repeated to persons employing the plaintiff for the avowed purpose of disrupting that relationship.

Professor Prosser defines four categories of slander which do not require proof of damages, two of which clearly cover the slander before us:

. . . courts very early established certain specific exception: the imputation of crime, of a loathsome disease, and those affecting the plaintiff in his business, trade, profession, office or calling — which required no proof of damage. The exact origin of these exceptions is in some doubt, but probably it was nothing more unusual than a recognition that by their nature such words were especially likely to cause pecuniary, or “temporal” rather than “spiritual” loss. Modern statutes and decisions have added a fourth catetory, the imputation of unchastity to a woman. For these four kinds of slander, no proof of any actual harm to reputation or any other damage is required for the recovery of either nominal or substantial damages. Otherwise stated, proof of the defamation itself is considered to establish the existence of some damages, and the jury are permitted, without other evidence, to estimate their amount. Prosser, Law of Torts, 3d Ed. Page 772, Section 107.

I find no error in the record that would justify disturbing the verdict returned in this case.

I am authorized to state that Judge Penix joins in this dissent.


author: David Newbern, Judge.

text:
    Kevin OXFORD v. Charles L. DANIELS, Director of Labor
    CA 79-402
    597 S.W. 2d 844
    Court of Appeal of Arkansas
    Opinion delivered April 2, 1980
    Released for publication April 30, 1980
    Appellant, pro se.

      Herrn Northcutt, for appellee.
   David Newbern, Judge.

The appellant was denied unemployment compensation benefits pursuant to Ark. Stat. Ann. § 81-1106 (c) (Repl. 1976), because he “failed to apply for available, suitable work when so directed by the Employment Office.”

The appellant was the only witness heard by the referee who sat as the appeals tribunal. He testified he did not mention to the unemployment office personnel any work limitations before he was sent to a local company in need of an employee. When he went to the prospective employer’s factory, the interview was terminated when he told the interviewer he was unable to lift heavy objects. The interviewer allegedly told the appellant the job required manual lifting of 12 tons of cardboard boxes per shift. The appellant testified at the hearing that he had injured his back while in the service but that Army doctors had been unable to find anything physically the matter with him.

The referee, in affirming the agency decision to deny benefits stated the appellant “agreed that the job [to which he had been referred] was suitable in all respects.” Apparently this statement meant that the appellant had been told what to expect when he went to the job site and had agreed he could do the type of work for which he was to be considered. The appellant specifically denied he had been told anything whatever about the job, and there was no evidence in the record that he had. Nor is there any basis whatever in the record for the referee’s statement the appellant agreed the job would be suitable. The board of review’s decision says nothing about this apparent flaw in the referee’s opinion despite the fact that it was raised specifically and forcefully in the appellant’s letter to the board which is in the record.

To affirm this decision we would have to say the appellant’s failure to mention his alleged physical limitation to the agency before the interview was substantial evidence his refusal to complete the interview was malingering and thus amounted to a refusal to apply for “suitable work.” We cannot conclude that it was. There is not even any evidence of record that the appellant was asked whether he had physical limitations before he was sent to the interview.

For all we know, the referee, whose opinion contained a statement which may have been decisive but which was utterly unsubstantiated, may have been thinking of some other case. The board of review entered a pro forma affirmance.

The case is remanded to the board of review with directions to award the claimed benefits or, in the alternative, to hold a rehearing.

Reversed and remanded.


author: Ernie E. Wright, Chief Judge.

text:
    Ray M. SMITH v. L. Conger SMITH
    CA 79-267
    597 S.W. 2d 848
    Court of Appeals of Arkansas
    Opinion delivered April 16, 1980
    Released for publication May 7, 1980

      Brown, Compton & Prewett, by: William I. Prewett, for appellant.

      McMillan, Turner & McCorkle and Wynne, Wynne & Wynne, by: H. W. McMillan, for appellee.
   Ernie E. Wright, Chief Judge.

In July, 1978, the appellee filed action against appellant and his wife for specific performance to require them to execute a deed for 72 acres of land pursuant to an alleged agreement to sell the land to appellee.

The appellant answered the complaint denying appellee was entitled to specific performance, and interposed the defenses of limitations, laches and estoppel, and by counterclaim sought to have his title quieted.

Mrs. Ray M. Smith demurred to the complaint on the ground there was no allegation she joined in any agreement of sale. The court decreed specific performance against appellant, but denied relief against appellant’s wife.

The appellant seeks reversal of the decree requiring specific performance on the following grounds: (1) appellee is barred by laches, (2) appellee should be denied relief for failure to tender balance owed and for default in payments, and (3) specific performance is improper.

The appellee by cross-appeal seeks reversal of the portion of the decree requiring him, as a condition for specific performance, to pay additional sums, which he contends relate to separate open account debts; and failure of the court to decree the dower of Mrs. Ray M. Smith barred.

In 1963, the appellant agreed to sell 72 acres of land in Dallas County, Arkansas to his brother, L. Conger Smith, appellee for the sum of $5490.00. The appellant’s wife did not join in the agreement. The appellee had been renting the land from appellant for the past several years, and after the agreement for sale the appellee continued in possession, and made improvements to the property.. The memorandum of sale dated December 17, 1963, executed by appellant but not by his wife, acknowledged receipt of $2490.00 from the appellee on the purchase price for the 72 acres described in the receipt, and recited the balance of $2900.00, bearing 4.6% interest was to be paid within two years. The appellee did not pay the balance of the purchase price within two years, but made various payments up to April 6, 1972.

In the fall of 1977 the appellee went to appellant to try to determine and pay what, if anything, he owed, and obtain a deed. The appellant declined to give appellee a deed and claimed appellee still owed a substantial sum.

Early after the agreement the appellant suggested to appellee that appellant pay the taxes and these were charged back to appellee, and were included in the aggregate appellee still owed. The appellee introduced copies of records kept by appellant showing numerous charges to appellee for interest and taxes. Appellant’s record showed additions to the debt of $3348.00 on March 26, 1970, which appellant testified was a loan to appellee, and a charge of $200.00 on March 26, 1971 he testified appellee agreed to pay for efforts of appellant in helping obtain settlement of a road condemnation matter with the county. Appellee denied the additional loan and denied the $200.00 charges for services.

Appellant conceded the appellee had paid him more than the deferred balance on the land contract, but testified he loaned appellee $3348.00 on March 26, 1970 and he was entitled to the additional $200.00 as agreed for services rendered in 1971. The appellant’s record reflected a balance of $2181.04 owed by appellee as of September 6, 1977, and he testified he had credited payments on the appellee’s indebtedness other than on the land sale agreement, and the balance of the debt was owed on the land sale.

The appellant testified he considered the agreement good for only two years from the last payment in 1972, and after that time he determined not to deed appellee the property but would allow him to use it and eventually it would revert to appellant.

The court found the memorandum dated December 17, 1963, was executed by L. C. Smith, that the appellee had made various payment to appellant from January 13, 1967 through April 6, 1972, as shown by appellant’s records aggregating $6431.40, and that there was a balance due appellant as of June 6, 1977 in the sum of $2181.04. The court accepted the record and testimony of the appellant as to the status of the debt.

The court ordered specific performance by appellant requiring him to execute a warranty deed to appellee on payment of the balance of $2181.04, together with interest from June 6, 1977 until tender is made, plus any amount which appellant may pay for taxes on the land subsequent to June 6, 1977. The decree further provided that the parties should determine the value of the dower interest of appellant’s wife in the $5390.00 sale price of the land, which amount should be deducted from the amount payable to appellant, and that if appellant should predecease his wife within seven years from date of entry of the decree her dower shall become consúmate, but if appellant does not predecease his wife within seven years from entry of the decree her dower will be barred and the amount withheld paid to appellant who shall have a lien on the property to secure payment.

After a careful review of the evidence, we are unable to say the chancellor’s finding of facts is contrary to a preponderance of the evidence, and therefore, we do not disturb the court’s finding as to the balance owed by appellee. We do not reverse the chancellor on findings of fact unless the findings are contrary to the evidence. Christy v. Nabholz Supply Co., 261 Ark. 127, 546 S.W. 2d 425 (1977).

We conclude the court correctly refused to hold the appellee, who had continuous possession of the property since the agreement of sale in 1963, was barred from asserting his rights to specific performance by reason of limitations, laches or estoppel; and we point out the written memorandum made no provision for the forfeiture of appellee’s contractual rights for failure to timely pay the deferred balance of the purchase price. We find no evidence of prejudice to appellant by reason of the delay of appellee in filing suit, and appellee is not barred by limitations, laches or estoppel. Also, the appellant’s own records reflect he continued to consider appellee indebted to him upon the land until the year prior to the filing of the complaint in July, 1978.

The court was correct in directing the debt to be paid to appellant as a condition for obtaining a deed be reduced by the value of Mrs. Ray M. Smith’s dower interest in the $5390.00 sale price. Sebold v. Williamson, 203 Ark. 741, 158 S.W. 2d 667 (1942). The appellant has not yet conveyed his interest in the property and Ark. Stat. Ann. § 61-226 (Repl. 1971), which operates to bar dower after the lapse of seven years following conveyance by the husband is not applicable. A mere contract to convey does not cause the statute to become operative. In the case of Dillard v. Kelley, 205 Ark. 848, 171 S.W. 2d 53 (1943), cited by appellee, specific performance was granted against both husband and wife, but the evidence was that appellant’s wife joined in the contract to convey the land. In the present case there is no evidence appellant’s wife agreed to sell.

The value of the dower was left to the parties to determine, but the degree should be modified to provide the value of the dower shall be determined by the court should the parties fail to agree on the value.

The decree should also be modified to provide that if appellant does not predecease his wife within seven years from execution and delivery of a deed to appellee the inchoate dower of Mrs. Ray M. Smith will be barred, and the amount deducted in lieu of dower from the sum payable to appellant as a condition for obtaining the deed shall be paid by appellee to appellant and the appellant shall have a lien on the land to secure such payment.

As to the cross-appeal, we hold the court did not err in treating payments by the appellee subsequent to the open account charges as payments on the open account rather than the land contract, and in requiring payment of the remaining debt as a condition for specific performance. Miles v. Teague, 246 Ark. 1288, 441 S.W. 2d 799 (1969).

Affirmed as modified.


text:
    BOARD OF COMMISSIONERS OF THE LITTLE ROCK MUNICIPAL WATER WORKS v. Kathleen STERLING
    CA 79-359
    597 S.W. 2d 850
    Court of Appeals of Arkansas
    Opinion delivered April 16, 1980
    Released for publication May 7, 1980

      Mitchell, Williams, Gill & Selig, for appellant.

      Henry & Duckett, for appellee.
   Ernie E. Wright, Chief Judge.

This is an appeal from a judgment in favor of the appellee awarding compensation in the amount of $3000.00, pursuant to a jury verdict, for the taking by eminent domain of an easement for an underground water main across appellee’s land in the City of Little Rock.

The Board of Commissioners of the Little Rock Municipal Water Works contends for reversal the trial court erred in allowing the appellee to introduce evidence of damage done by the project independent contractor outside the easement, and erred in the giving of instruction number 3. Appellant also contends there is no substantial evidence to support the $3000.00 jury verdict.

The appellant filed an application and obtained an order on November 10, 1976 for immediate possession of a permanent easement 25 feet wide and an adjacent temporary construction easement 30 feet wide extending across a five acre tract of land belonging to appellee abutting the east side of Reservoir Road in Little Rock. The permanent easement is across the northwest corner of the five acre tract and is approximately 280 feet in length and the adjacent temporary construction easement is slightly longer. The construction of the water main was performed by an independent contractor. The court, over objections of appellant, permitted the appellee to introduce proof of damages to her property by activities of the contractor outside the easement. The evidence showed the appellee, without any request from appellant, gave the contractor permission to use the driveway to her home, outside the easement, as an access for moving heavy equipment to and from the construction on the easement. Evidence was introduced, over appellant’s objection, of various damages caused by the contractor outside the easement. The appellee later withdrew her consent for the contractor to use access outside the easement, and there was evidence the contractor thereafter trespassed outside the easement and caused further damage after the permitted access was withdrawn.

The. evidence is undisputed the easement extends to and across Reservoir Road and that the contractor had a means of access to the easement from that road, but that access because of a ditch and difference in elevation between the road and easement, was not as convenient for the contractor.

We hold the court erred in permitting the appellee to introduce evidence, over appellant’s objections, of damages to her property committed by the contractor outside the easement. Any such damages were the result of actions of the contractor while using lands outside the easement with consent of the appellee, or were the result of trespasses by the contractor. Unquestionably the contractor had no right to enter upon appellee’s land outside the easement without her consent, and such entries, other than those made with appellee’s consent, were trespasses. Any damages arising from such actions by the contractor did not necessarily or reasonably flow from the taking of the easement. Damages from tortious actions are not a proper element of damage in a proceeding for the condemnation of the easement. Springfield & Memphis Railway Company v. Henry, 44 Ark. 360 (1884).

In Tri-B Advertising v. Ark. State Highway Commission, 260 Ark. 227, 539 S.W. 2d 430 (1976), the court quoted the general rule from 40 C.J.S. Highways § 212 as follows:

However, the contractor, and not the highway authority, is liable for damages resulting from his own tortious acts in the performance of the contract, as where he is negligent, or commits an unauthorized trespass on the property off the right of way. Even though the highway authority may be immune from liability for damage, such immunity is not shared by the contractor. ***

Tort damages by an independent contractor are to be distinguished from damages that inevitably or necessarily flow from the construction of an improvement in keeping with the design of the condemnor. Such distinction is clearly made in White v. Maddux, Special Administrator, 227 Ark. 163, 296 S.W. 2d 679 (1956), in which the court reiterated the well established law that the State, its political subdivisions and quasi public corporations are not liable in tort. Damages to land outside the easement which inevitably or necessarily flow from the construction upon the easement, such as permanent flooding of land outside the easement by reason of structures placed on the easement in keeping with the design of the condemnor, results in an appropriation of land for public use outside the easement. Such damages are embraced within just compensation to which the landowner is entitled. Board of Directors, St. Francis Levee District v. Morledge, 231 Ark. 815, 332 S.W. 2d 822 (1960). The damages outside the easement in the present case were not an appropriation of additional land to public use, but resulted from tortious acts of the contractor unauthorized by the appellant.

Appellee argues the application of appellant for the order taking the easement bound appellant to repair the area after the construction. However, the provision referred to is limited to restoration of the easement area and does not extend to damages outside the easement caused by the contractor.

Appellee also argues the appellant agreed to withhold some of the construction contract payments to compensate appellee, but the evidence reveals no such firm commitment by appellant.

As the case must be reversed for the error above discussed, we find it unnecessary to discuss other errors asserted by appellant.

Reversed and remanded.


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    T. Clint SHUFFIELD and Elaine SHUFFIELD v. Rosalee HUNTER
    CA 79-229
    597 S.W. 2d 852
    Court of Appeals of Arkansas
    Opinion delivered April 16, 1980
    Released for publication May 7, 1980

      Henry Morgan, for appellants.

      Wood, Smith, Schnipper & White, for appellee.
   James H. Pilkinton, Judge.

Appellants seek to recover a real estate commission. In their complaint below they allege that on or about October 15, 1973, they entered into an oral contract with appellee, Rosalee Hunter, and her husband, Glenn Hunter, who has since died. Mrs. Hunter filed an answer denying all of the material allegations of the complaint. The parties agreed to waive a jury trial and the issues were heard by the circuit court without a jury. The trial resulted in a judgment for the defendant, Rosalee Hunter, and the plaintiffs have appealed.

Some of the factual background is not in dispute. The Hunters owned a certain farm in Clark County, Arkansas, containing 186 acres. Title was held as an estate by the entirety. Mr. Hunter died before this case was filed.

Some time in 1973 Mr. and Mrs. Hunter listed this property for sale with the United Farm Agency in Hot Springs, Arkansas. United was given an exclusive listing for a definite period of time. Appellants T. Clint Shuffield and Elaine Shuffield, husband and wife, are both licensed real estate brokers at Arkadelphia, Arkansas. At times they worked with United in trying to sell property listed with United. During the listing period and with the permission of United the Shuffields, on their own motion, also attempted to sell the Hunter land. While the United listing was in effect Mr. Shuffield talked to Mr. and Mrs. John C. Van Fosson, then of Ottawa, Kansas, about the Hunter place. This was in 1973. Mr. Van Fosson was not interested in buying the Hunter land at that time. The Shuffields sold him another tract of land, and Mr. and Mrs. Van Fosson moved to Arkansas in December, 1974. The United listing expired in late 1974.

Mr. Glen Hunter was in ill health and in 1975 the Hunters renewed their efforts to sell this land. In June of 1975 Mr. and Mrs. Hunter sold the 168 acres to Mr. and Mrs. Van Fosson for $180,000. Mr. Hunter died shortly thereafter; the exact date of his death is not revealed by the record. In any event, some time after the sale was closed Mr. and Mrs. Shuffield wrote a letter to Mrs. Rosalee Hunter claiming a commission on the sale. It was the Shuffields’ contention that they had a valid oral listing of this property, had shown it to Mr. and Mrs. John C. Van Fosson, and were entitled to a commission under the circumstances.

While the complaint alleged that an oral contract had been entered into in 1973, Mr. Shuffield testified at the trial that the alleged agreement was made in 1975. Mr. Shuffield claimed that he contacted Mr. and Mrs. Hunter again in March, 1975 about a listing. Although the Hunters refused him a listing they did say that if the Shuffields found a purchaser, they would work with the Shuffields in selling the property. After saying that he had contacted the Hunters again, Mr. Shuffield testified as follows:

Q. And what happened?
A. I was told they were unhappy, the Hunters were unhappy with a prior listing and that they would not sign an exclusive.
Q. All right, have you ever had a non-exclusive written listing?
A. Yes.
Q. And, did they sign it?
A. No.
Q. Okay, you never really got a written listing at all from them?
A. No, I did not.
Q. The most you got was Mr. Hunter’s saying: If you find someone, we’ll work with you, is that right?
A. Yes.

Mrs. Shuffield admitted that she did not talk to the Hunters at all, but knew that her husband did, and she testified that Mr. Shuffield’s contact with the Hunters was in 1974.

Mrs. Hunter denied that she ever told Mr. Shuffield anything, and denied that Mr. and Mrs. Shuffield had any kind of a contract or oral agreement with either her or her husband. Her testimony was as follows:

Q. Did he ever tell or did he ever discuss with you about him getting a listing from you?
A. No, he never did.
Q. Did he ever tell you he was going to charge you 10 percent?
A. No, sir. He talked to me one time on the phone and that’s when Glen was ill and I didn’t want him to call.
Q. Do you recall when that one conversation was the one time he talked to you?
A. I would say late ’74 year, ’74.
Q. Late ’74?
A. Yes, sir.
Q. But, you never did at any time enter into a contract with him to sell?
A. No, sir; no, sir.
Q. Did he call you in March of ’75, and tell you that he wanted a listing on it like he testified?
A. No, he didn’t. He did not talk to me.
Q. Did you ever provide him with a description of the property?
A. I never did.
Q. Did you ever give him a price that you would take for the property?
A. No, sir, I never did.

The record shows that Mr. Shuffield was asked the specific question:

Q. How many times did you say that you took Mr. Van Fosson out to look at the property?
A. One time.

To say the least, the evidence in this case is conflicting and the testimony of appellants apparently was not impressive to the trial court. The testimony of Mr. Van Fosson, the purchaser, is not at all favorable to the contentions of appellants, but the evidence given by him supports the position of the appellee in most respects. For example, he testified as follows:

Q. So you are saying that the only time that you visited the Shuffields concerning this property was on that one occasion in 1973 when they took you out to visit the property?
A. That’s right.
Q. And they brought you back to the office?
A. That’s right.
Q. Do you recall any other attempts on the Shuffields’ part to encourage you to purchase this particular piece of property?
A. No.

Insofar as the law is concerned, a contract of employment between the broker and principal may be either oral or written. Vanemburg v. Duffey, 177 Ark. 663, 7 S.W. 2d 336 (1928) and Long v. Risley, 208 Ark. 608, 188 S.W. 2d 132 (1945). Such an agreement does not come under the statute of frauds. Vaught v. Paddock, 98 Ark. 10, 135 S.W. 331 (1911). The contract may be either expressed or implied, but whatever its form the employment contract must appear to have an offer and acceptance. Vanemburg v. Duffey, supra. A broker cannot recover compensation for services voluntarily rendered in the absence of subsequent acts of ratification on the part of the principal. Long v. Risley, supra. In Nickel v. Dashko, 174 Ark. 818, 298 S.W. 204 (1927), there was a dispute as to whether the broker was the agent of the seller. The court in Nickel stated that the owner must say or do something tending to prove that he accepted the broker as his agent. Merely selling to the party whom the broker procured was not enough. See also Peebles v. Sneed, 207 Ark. 1, at 5, 179 S.W. 2d 156 (1944).

To say the least, the case before us presented a fact question for the trial court to determine whether there was an oral contract or whether the circumstances were such as to justify the conclusion that appellants are entitled to a commission. The circuit court found against appellants. Where the testimony is conflicting, as here, the finding of the circuit court is conclusive upon appeal. Vanemburg v. Duffey, supra. The finding of the trial court sitting as a jury, on questions of fact, is as conclusive on appeal as the finding of a jury; and if there is any substantial evidence to support the findings of the trial court, its findings will not be disturbed.

In this case there is substantial evidence to support the finding of the trial court, and the judgment must therefore be affirmed.

Affirmed.


text:
    Harry KELLEY et ux v. Terry Lynn PIPKIN et al
    CA 79-275
    598 S.W. 2d 102
    Court of Appeals of Arkansas
    Opinion delivered April 16, 1980
    Released for publication May 7, 1980

      Honey & Rodgers, by: Charles L. Honey, for appellants.

      Woodward & Kinard, Ltd., by: Mac Dodson, for appellees.
   James H. Pilkinton, Judge.

Henry Marvin Pipkin, died intestate on January 25, 1979, leaving three children as his sole and only hiers at law. One of his sons was appointed administrator of the estate.

On February 15, 1979, after administration was granted, Harry Kelley, a nephew, and Janet Kelly, his wife, filed this suit in equity against the estate and heirs. The complaint seeks specific performance of an oral contract, allegedly made in' September, 1977, by which Mr. Pipkin had agreed to leave all of his property to the Kelleys in return for them taking care of him for the rest of his life. This appeal is from a decree finding that the Kelleys had failed to prove their case by clear, cogent and convincing evidence.

I

Appellants first claim that the trial court erred by holding that they had failed to meet the burden of proof required to establish an oral contract to make a will.

Henry Marvin Pipkin and Louise Pipkin had been married thirty years when they were divorced. They were the parents of two sons, who are now adults, Terry Lynn Pipkin and Tony M. Pipkin. Mr. Pipkin also had. a daughter by a prior marriage named Rachel Pipkin Winnbury. The daughter was married and had a home of her own, but the two sons were unmarried and lived with their mother in Magnolia, Arkansas, after the parents were divorced. Following the divorce, the Pipkins placed their home for sale. They had previously divided their personal property to the satisfaction of each.

After the divorce, which occurred in early 1977, Mr. Pipkin first lived with his sister, Mrs. Hesterly Kelley. In September, 1977, he moved his house trailer to a space adjacent to the home of Harry Kelley and Janet Kelley, husband and wife, placing it on their land. Harry Kelley was a son of Mrs. Hesterly Kelley, and a nephew of Henry Marvin Pipkin. Harry Kelley testified that his uncle told him, “If you all will take care of me until my death, everything I own will be yours.” Mrs. Janet Kelley gave similar testimony. She said Mr. Pipkin was ill when he came to the house, couldn’t cook for himself, and she did the washing and cooking for him until his death. According to Mrs. Janet Kelley the actual living arrangements were for Mr. Pipkin to eat all of his meals with them. She was to tend to his clothes and see that Mr. Pipkin got any special foods he might need. She claimed that Mr. Pipkin slept at their house for awhile and until he got better physically. Then he spent the nights at his trailer. Both Mr. and Mrs. Harry Kelley say they furnished the electricity for Mr. Pipkin’s trailer without charge as it was hooked to their house meter. Mrs. Janet Kelley claimed that she cleaned Mr. Pipkin’s trailer when it needed it, at least once or twice a week. It is the position of appellants that they performed their part of the agreement, but Mr. Pipkin failed to make a will leaving everything to them as he said he would do.

The position of appellants is supported in some respects by the testimony of Mr. Kelley’s mother; and by the testimony of other members of the Harry Kelley family, including his children and son-in-law. The only witness for appellants who was not a member of the immediate family of Mr. and Mrs. Harry Kelley was Mrs. Flossie Brigham, a friend. She testified that Mr. Pipkin told her that he was going to pay Harry and Janet to take care of him, and had said, “Well, the ones that help me, I am going to help them.” The several witnesses for appellants claim to have heard Mr. Pipkin say that he meant to leave everything to Harry and Janet.

On the other hand, the testimony offered by appellees tends to show various statements and declarations made by Mr. Pipkin to the effect that he wanted everything to go to his children at his death. William Watson Pipkin, an older brother of Henry Marvin Pipkin, testified that Marvin told him both prior to and following the divorce that he wanted his children to have what was left after the hospital and doctor’s bills were paid, but did not want his ex-wife to have anything. Mrs. Theola Pipkin, Marvin’s sister-in-law, testified that Marvin didn’t want Louise, the former wife, to have any of his property but wanted his boys and Rachel to have their share. She said that Marvin loved his children very much and quite frequently the children would call her when they couldn’t contact their father to check on him. Other witnesses offered by appellees disputed the assertion by appellants that Mr. Pipkin wished to disinherit his three children.

Appellants argue that since appellees could offer no direct proof that Mr. Henry Marvin Pipkin did not make the agreement, as appellants claim, the appellants’ version of the matter should have been accepted by the court as undisputed. They say the chancellor was obligated on this record to recognize the agreement claimed by them and enforce it. We cannot agree. In weighing testimony, courts may consider the interest of a witness in the matter in controversy. Wasson v. Lightle, 188 Ark. 440, 66 S.W. 2d 652 (1933). Facts established by the testimony of an interested witness, or one whose testimony might be biased, cannot be considered as undisputed or uncontradicted. Old Republic Ins. Co. v. Alexander, 245 Ark. 1029 at 1039, 436 S.W. 2d 829, Sykes v. Carmack, 211 Ark. 828, 202 S.W. 2d 761 (1947); Skillern v. Baker, 82 Ark. 86, 100 S.W. 2d 764.

The chancellor also had the right to consider circumstancial evidence as well as direct evidence. There are some circumstances shown by the record that support appellants’ claim; however, there are other circumstances — some very strong — which tend to show that no such agreement was made. For example, the record is clear that Mr. Pipkin paid his own way in most respects. His bank records were introduced in evidence and are quite revealing. Mr. Pipkin and his former wife sold their homeplace on January 12, 1978, after the divorce, and divided the proceeds. It is undisputed that Mr. Pipkin received $15,000 in cash from this transaction. He was receiving a monthly Social Security check of $280.10 and in the last year of his life he also received a royalty check of some kind from Ferguson Oil Company amounting to $231.00 a month. Mr. Pipkin had both a checking account and a savings account. Bank records show that he had $28.04 in his savings account on December 31, 1977. He deposited the $15,000 from his part of the sale of the homeplace on January 24, 1978, making a balance in savings of $15,028.04. An inspection of the records pertaining to his savings account indicates that he deposited an additional $500.00 on February 3, 1978, and that he had withdrawn a total of $10,307.89 prior to his death, leaving a balance in savings at the time of his death, of $5,220.15. An examination of the checking account from January 17, 1978, until his death, indicates that during such period of time Mr. Pipkin deposited $3,014.32 in his checking account. He wrote checks against this account to pay certain bills and expenses. His balance in checking at the time of his death was $251.18. The testimony indicates that Mr. Pipkin usually cashed and spent his Social Security check. The bank statements show that only one Social Security check was deposited. Appellants admit that Mr. Pipkin bought and paid for his clothing and medical expenses, and that they did not furnish him with any clothing or medical benefits. The proof also indicates that Mr. Pipkin at times bought groceries, and other items, and that he took some of his meals away from the Harry Kelley home. The decision of the chancellor was based necessarily on the credibility of the witnesses. As the courts have many times said, the chancellor is in a better position to judge credibility than we are on appeal. Dennis v. Dennis, 239 Ark. 384, 389 S.W. 2d 631 (1965).

Appellants correctly point out that Arkansas does recognize oral agreements to make a will as valid and enforceable contracts. Crowell v. Parks, 209 Ark. 803, 193 S.W. 2d 483 (1946). However, it is also well established that the evidence must be clear, cogent and convincing in order to establish such a contract. Apple v. Cooper, 263 Ark. 467, 565 S.W. 2d 436 (1978).

The chancellor decided that the appellants had not met that burden of proof. After a careful review of the evidence, we cannot say appellants proved by clear, cogent and convincing evidence that the alleged agreement was made. Therefore, we find no merit in appellants’ point I.

II

Appellants also argue that a color television set and an antique clock, which belonged to Mr. Pipkin, were given to Mrs. Janet Kelley by him prior to his death.

Inter vivos gifts must also be established by clear and convincing evidence. Porterfield v. Porterfield, 253 Ark. 1073, 491 S.W. 2d 48 (1973). The decision made by the chancellor concerning the alleged gifts was based primarily upon the credibility of those witnesses who gave testimony about this phase of the case. On the record before us we cannot say that the alleged gifts were proven by evidence that is clear and convincing.

III

In discussing the above two points, appellants complain that the chancellor, in his decree, did not itemize the personal property claimed by the estate but simply ordered the Kelleys to deliver to the administrator all property in their possession belonging to Henry Marvin Pipkin at the time of his death. The pleadings on behalf of the estate clearly show what items were claimed. Appellants certainly know what items of personal property are involved. The chancery court has the power to try the title to this personal property if it has not already done so. If any particular item is still in dispute after the determination of this appeal, the court below can certainly deal with it. We therefore affirm this case in all respects, but remand so the trial court may promptly determine title to any personal property still in dispute.