author: Frank Holt, Justice.

text:
    THE HOME INSURANCE COMPANY v. Nellie HARWELL et al
    78-38
    568 S.W. 2d 17
    Opinion delivered July 3, 1978
    (Division I)

      Tom Forest Lovett, P.A., for appellant.

      Williams & Gardner and Laser, Sharp, Haley, Young & Huckabay, P.A., for appellees.
   Frank Holt, Justice.

A jury awarded appellee Nellie Harwell damages in the amount of $12,000 for her personal injuries and approximately $413 for property damage arising out of an automobile accident involving a vehicle driven by appellee John Hinman and owned by appellee Donald Eoff. The jury assessed the damages against Hinman and appellant. Eoff was exonerated of any liability on the asserted theory of his negligent entrustment. The court awarded an attorney’s fee of $4,000 and assessed a 12% penalty and interest upon the judgment against appellant, which had issued its automobile insurance policy, including uninsured motorist coverage, to appellee Harwell. Home Insurance Company appeals. It first contends the trial court erred in refusing to direct a verdict in its favor because there was no substantial evidence that Hinman was an uninsured motorist within the meaning of the uninsured motorist provisions of her policy and Ark. Stat. Ann. § 66-4003 (Supp. 1977). We must agree.

Under the uninsured motorist statute, “the burden of showing the other vehicle is uninsured is on the plaintiff.” Ward v. Consolidated Underwriters et al, 259 Ark. 696, 535 S.W. 2d 830 (1976); and South. Farm Bur. Cas. Ins. v. Gottsponer, 245 Ark. 735, 434 S.W. 2d 280 (1968). Here the parties stipulated that Hinman himself did not have in effect at the time of the accident a liability insurance policy as required by Arkansas law and Hinman so testified. Also, according to the evidence, Hinman was driving Eoff’s car without his permission. Even so, appellant argues, appellee Harwell adduced no evidence whatsoever as to whether Eoff, the owner of the vehicle driven by Hinman, had insurance coverage on his automobile when Hinman was driving. In Southwestern Underwriters Ins. v. Miller, 254 Ark. 387, 493 S.W. 2d 432 (1973), the appellee was injured in a collision with an automobile driven by one defendant and owned by another defendant. The driver of the vehicle admitted that he, himself, did not have insurance coverage. We said: “There was no evidence the vehicle was uninsured.”

Here, by Mrs. Harwell’s insurance policy, the appellant was obligated to pay all sums which she was entitled to recover as damages from the owner or operator of an “uninsured highway vehicle.” In the circumstances, we are of the opinion the evidence adduced was insubstantial to qualify the vehicle as an “uninsured vehicle” within the meaning of appellant’s policy and § 66-4003.

Next appellant asserts error in the court’s failure to include in its instruction to the jury the bracketed portion of AMI 901 (B) which provides:

When the driver sees danger ahead, or it is reasonably apparent if he is keeping a proper lookout (or if he is warned of approaching imminent danger) then he is required to use ordinary care to have his vehicle under such control as to be able to check its speed or stop it, if necessary, to avoid damage to himself or others.

Appellant argues that the fact situation presented here warranted the giving of this instruction. Mrs. Harwell testified that she was traveling north on Highway 7. She had just crossed the Arkansas River bridge and was approaching a “T” intersection where Highway 247 runs into Highway 7 on her right. She was driving at a “very slow pace” due to road construction and speed limit signs on Highway 7. She first noticed Hinman’s vehicle when she was ten or twelve car lengths from the intersection and “just before he entered the intersection.” Hinman ran a stop sign, “came out of the intersection and crossed the Highway 7 in front of [her] vehicle.” Hinman cleared her lane and made it to the lefthand side of the road. She did not know whether or not he was going to make a left hand turn onto Highway 7, but her lane was “free and clear” and there was no other traffic coming from her right off Highway 247. She then looked out and saw Hinman’s car backing across the road coming directly at her. She did not have room to stop.

Hinman testified that he started into the intersection and failed to make a right hand turn and ended up on the left hand side of the road. He saw a truck coming over the bridge heading north on Highway 7. “I ran out too wide, and a diesel was coming straight . . . over the overpass there.” He did not see him when he first pulled out, but “I looked back and there he come.” He put his car in reverse and backed up. He did not see Harwell’s car until he hit it. “I just panicked and tried to get out of the way.” “I didn’t have no choice to either hit him or hit the car behind me, so I just put it in reverse and backed up.”

The court instructed the jury as follows:

It is the duty of the driver of a motor vehicle to keep his vehicle under control. The control required is that which a reasonably careful driver would maintain under circumstances similar to those shown by the evidence in this case.

The instruction proffered and refused imposes a duty on the driver to have the vehicle under such control as to be able to check its speed or stop it whereas the instruction given requires the driver to control the vehicle as a reasonably careful driver would in the circumstances. Here Mrs. Harwell was faced with an unexpected emergency which she could not reasonably anticipate. In the circumstances, we are of the opinion that the instruction given by the court was sufficient and the requested instruction was properly refused. See Reed v. McGibboney, 243 Ark. 789, 422 S.W. 2d 115 (1967); and Coca-Cola Bottling Co. of Blytheville v. Doud, 189 Ark. 986, 76 S.W. 2d 87 (1934).

It is our practice in cases such as the one at bar to reverse and remand rather than dismiss since it is possible that the deficiency in the proof, as previously discussed, can be further developed upon a retrial. South. Farm Bur. Cas. Ins. v. Gottsponer, supra; and Southwestern Underwriters Inc. v. Miller, supra. Therefore, we deem it unnecessary to discuss appellant’s contention that the award of damages and attorney’s fees are excessive.

Reversed and remanded.

We agree.

Harris, C.J., and George Rose Smith and Fogleman, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph DELRIO, Jr. v. STATE of Arkansas
    CR 78-28
    568 S.W. 2d 15
    Opinion delivered July 3, 1978
    (In Banc)

      Robert E. Irwin, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant not guilty of driving while intoxicated; however, he was found guilty of interference with a law enforcement officer in the performance of his official duties and his punishment assessed at five months’ imprisonment and a $400 fine. Appellant asserts that the evidence does not justify conviction of the offense of interference with a law enforcement officer in the performance of his official duties.

Ark. Stat. Ann. § 41-2803 (a) (Repl. 1977) provides:

A person commits the offense of interference with a law enforcement officer if he knowingly employs or threatens to employ physical force against a law enforcement officer engaged in performing his official duties.

It appears that appellant doe? not argue on appeal the applicability of the statute. In arguing there is insubstantial evidence to support his conviction, he asserts that excessive force was used on him by the officers and any interference by him with the officers was an attempt to prevent them from inflicting upon him an unlawful beating. He asserts he merely exercised his right to resist an illegal beating, citing the Commentary to Ark. Stat. Ann. § 41-2803 (Repl. 1977). The evidence, viewed in the light most favorable to the appellee, which we must do on appeal, shows that the police were responding to a call from the proprietor of a drive-in concerning a disturbance there when they spotted a car which met the description given them. One of the arresting officers testified that appellant was driving in an erratic manner and they stopped him. The officer detected “a strong odor of alcohol about [appellant’s] person,” “[h]e was unsteady on his feet,” “walked in a weaving manner,” and “[h]is speech was slurred.” Appellant was arrested, handcuffed and put in the back seat of the patrol car along with a companion. While waiting there for a tow truck, appellant and his passenger “became very abusive, using profane language. At one time, the [appellant] spit on my back and on the back seat.” When the wrecker arrived, they proceeded to the jail. There appellant “stepped out [of the patrol car], made a profane abusive remark, [and] ripped the radar cord.” Appellant kicked the officer “in the groin.” Appellant tried to kick the officer several other times. The officers had to forcibly carry appellant up the steps to the jail. Appellant “kicked and fought all the way up.” The jailer “came to the door and bent over, at that time [appellant] kicked [the jailer] right in the face, just under his eye. ” The arresting officer substantially corroborated this testimony. As indicated previously, appellant argues that the reason he resisted and kicked the officers was to prevent an unlawful beating. It was for the jury to reconcile the conflicting evidence. There is ample substantial evidence to support the verdict.

Appellant also contends the court erred in not declaring a mistrial when evidence of other arrests and wrongdoings was introduced at trial. Appellant first moved for a mistrial when an officer was asked on direct examination why appellant was handcuffed upon his arrest. The officer stated he handcuffed appellant because he had arrested appellant approximately twenty days before. Appellant’s counsel objected and after the state withdrew the question, the objection was sustained. Further, appellant did not request that the trial judge admonish the jury regarding this testimony, and, therefore, he is in no position to argue that the judge’s failure to do so was reversible error. Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976). Certainly, here no abuse of the trial court’s discretion is demonstrated.

Appellant also moved for a mistrial after one of the arresting officers testified that appellant was placed under arrest for DWI and possession of a controlled substance. The court sustained appellant’s objection and admonished the jury to “disregard the last statement of the witness.” The judge reminded the jury that “I have advised you of what the defendant is on trial for here today, and ask that you [confine] your determination to that and that alone. ” Further, the court allowed appellant’s counsel to show that appellant was tried and acquitted “of anything dealing with a controlled substance.” In the circumstances, we find no abuse of the trial court’s discretion in denying appellant’s motion for a mistrial.

Appellant finally contends that the transcript of a hearing in chancery court concerning the issuance of a court order directing his commitment until the posting of a $1,000 bond guaranteeing his compliance with the court’s child support order was not submitted to the jury. Instead it was filed by the state in response to appellant’s motion for a new trial some two months after the trial. Appellant insists there was no “pickup” warrant, based on this proceeding, in existence. The only mention of the chancery proceeding was the testimony of one of the arresting officers. The officer was explaining they were looking for appellant due to the disturbance complaint and, also, because “ [we] also had a pickup warrant on [appellant] out of Chancery Court.” After objecting to this testimony and before a ruling by the court, the appellant’s counsel asked the officer if appellant “was arrested for DWI and suspicion of disturbance or was he arrested on a Chancery Court order.” The court then, after overruling the objection, instructed the jury “to disregard the substance of anything else that they may have been looking for him for” to which the jury responded they would. There is no prejudicial error demonstrated.

Affirmed.

Byrd and Hickman, JJ., dissent.


author: George Howard, Jr., Justice.

text:
    NEW HAMPSHIRE INSURANCE COMPANY v. Shelia QUILANTAN
    78-24
    569 S.W. 2d 102
    Opinion delivered July 3, 1978
    (Division II)
    [Rehearing denied September 11, 1978.]

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

      Hobbs & Longinotti, by: Richard W. Hobbs, for appellee.
   George Howard, Jr., Justice.

The central question for resolution is whether the trial court erred in granting a summary judgment in favor of appellee-insured on her claim for fire loss, under an insurance policy issued by appellant-insurer where the insurer asserted the defense of arson to the insured’s claim. Also appellant has challenged the attorney’s fee awarded by the trial court as excessive.

The pertinent facts for a determination of the issue raised are:

On September 26, 1976, appellee-insured’s personal dwelling and the contents therein were totally destroyed by a fire of unknown origin. At the time, appellee had insurance coverage with appellant-insurer in the sum of $23,000.00 on the dwelling house, $11,500.00 on the contents and the policy also provided for a sum not to exceed $4,000.00 as additional living expenses that might be incurred in case of fire damage.

Notice of the loss was duly communicated to appellant. On December 6, 1976, appellee instituted an action in the Circuit Court of Garland County against appellant, after appellant had failed to respond affirmatively to appellee’s claim. Appellee prayed judgment for $38,500.00 plus 12 percent penalty, reasonable attorney’s fee, plus 6 percent interest from September 24, 1976.

Appellant-insurer filed responsive pleadings contending, among other things, “that the fire loss in question was the result of arson knowingly caused by plaintiff and that defendant is thereby relieved of any obligations to make payment under its policy.”

Appellee-insured immediately undertook extensive discovery in order to establish the existence or nonexistence of appellant’s defense of arson by taking depositions, submitting interrogatories and request for admissions of fact to individuals whom appellant had designated as witnesses to be called to establish the defense of arson. Moreover, affidavits were submitted in behalf of appellee.

Pursuant to appellee’s motion for summary judgment, after all discovery had been completed, and appellant’s response to appellee’s motion for summary judgment was duly filed, the trial court made the following finding:

“. . . [T]he court finds that there is no substantial issue of fact existing in this case and that plaintiff’s allegation of arson is not supported by any evidence but speculates on possible motives.”

A judgment was entered in behalf of appellee in the following sums: $23,000.00 for the total loss of appellee’s dwelling house, $11,500.00 for the loss of the contents, $4,-000.00 for living expenses, 12 percent penalty on the total sum of $38,500.00 and cost together with interest at 6 percent per annum on the sum of $38,500.00 commencing with September 24, 1976. The trial court awarded appellee’s attorney a fee in the sum of $12,500.00.

For reversal, appellant contends that the trial court erred in granting appellee’s request for summary judgment and that the attorney’s fee awarded by the trial court is excessive.

In Ark. Stat. Ann. § 29-211 (Repl. 1962 and Supp. 1977) pertaining to summary judgment proceedings, it is provided in relevant part as follows:

“. . . [T]he judgment sought shall be rendered forthwith if pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

See: Universal Life Insurance Co. v. Howlett, 240 Ark. 458, 400 S.W. 2d 294 (1966); Jones v. Comer, 237 Ark. 500, 374 S.W. 2d 465 (1964).

It is universally recognized that in reviewing the record on a motion for summary judgment, the trial court must review it in the light most favorable to the party resisting the motion with all doubts and inferences being resolved against the moving party.

In reviewing the entire record submitted in this cause, we cannot conclude or hold that the trial court committed reversible error. We are persuaded that the tria] court was correct in holding that appellee was entitled to a summary judgment as a matter of law on appellant’s defense of arson.

By way of summary, the evidence accumulated by discovery on the part of appellee shows that the evidence that appellant contemplated using in order to establish arson as a defense is speculative. For example, the Hot Springs Fire Marshal testified that he had no evidence as to who caused the fire and obviously had no evidence identifying appellee as the responsible party for the fire; Dan W. Hickman, Jr., Claims Manager for appellant, could not offer any evidence as to the cause of the fire. An affidavit filed in behalf of appellee specified that the Arkansas State Police had not conducted an investigation in regards to the alleged arson defense. Consequently, the trial court was justified in con-eluding that no genuine issue as to any material fact existed and that appellee was entitled to judgment as a matter of law.

Relative to appellant’s contention that the trial court’s award of $12,500.00 to appellee’s attorney, as an attorney’s fee, is excessive, we are persuaded that appellant has asserted a meritorious claim. Consequently, if a remittitur is entered within 17 calendar days for $6,000.00, this action will be affirmed, otherwise, this action will be reversed, so far as the attorney’s fees are concerned, and remanded to the trial court.

In Federal Life Insurance Co. v. Hase, 193 Ark. 816, 102 S.W. 2d 841 (1937), we stated that there is no fixed formula in considering an attorney’s fees in cases such as we have here, other than that discretion must not be abused in awarding an attorney’s fees. In summary, this action was disposed of by way of motions for summary judgments, thus, eliminating the necessity for a full scale trial of the issues. Moreover, as emphasized by appellant in its brief, there was no attempt on the part of counsel for appellee to submit an itemized statement of the hours he actually spent in preparation of his client’s case so that the fees could be determined in an objective and rational manner. In reivewing the record before us and considering the amount of the recovery involved, we conclude that the fee, as awarded by the trial court, was excessive.

Modified and affirmed, providing a remittitur is entered in the sum of $6,000.00 relative to the award of attorney’s fee for appellee’s attorney.

We agree.

Harris, C.J., and Byrd and Hickman, JJ.

      Other issues, not material to a resolution of the issue before us, were raised by appellant-insurer’s pleadings, but were resolved against appellant by the trial court pursuant to a motion for summary judgment filed by appellee. However, the trial court held “. . .[Tjhere is only one issue of fact now existing between the parties and this question of fact is as to whether or not the plaintiff herein knowingly, by arson, caused the fire loss in question and the Court further finds if the sole defense now existing consisting of arson on the part of the plaintiff is not sustained that judgment will then be entered in this cause in the following sums: $23,000.00 for total destruction of plaintiff’s home; $11,500.00 for the contents of said home; $4,000.00 living expenses; plus 12% penalty on the total, sum of $38,500.00 from all of sixty days after 24th day of September, 1976 at six per cent per annum.”


author: John A. Fogleman, Justice.

text:
    Jerry HARRIS v. Charles L. DANIELS, Director of Labor, and GENUINE PARTS COMPANY
    78-41
    567 S.W. 2d 954
    Opinion delivered July 10, 1978
    (Division I)

      Matthews & Sanders, by: Roy Gene Sanders, for appellant.

      Herrn Northcutt, for appellees.
   John A. Fogleman, Justice.

The only question on this appeal is whether there was substantial evidence to support the decision of the Board of Review that appellant Jerry Harris was not entitled to unemployment benefits under the Arkansas Employment Security Act [Ark. Stat. Ann. §§ 81-1101 — 81-1108, 81-1111 — 81-1121 (Repl. 1976 and Supp. 1977)]. The circuit court held that there was. We agree and affirm.

The claim was filed on April 14, 1977, showing that appellant’s last day of work was April 1, 1977. The reason given for separation from the last employment was that appellant quit because he had planned to go into private business but was unable to do so. The response of the employer, Genuine Parts Company, stated that the reason for separation was, “He voluntarily quit, personal reasons.” In answer to further questions propounded on an Employment Security Division form as to his voluntarily quitting his employment, he stated as the reason given his employer for quitting was, “I was unable to go in business,” and added that he thought it was necessary for him to quit. In answer to a request for a detailed explanation, he stated:

“I was working as a feed salesman when I became interested in going into private business as a parts store operator. I contacted National Automobile Parts Association, which is NAPA, and a tentative agreement was reached with them whereby I would have a franchise for one of their stores in Marshall, Arkansas. I had no experience in this type business so NAPA got me a job at Genuine Parts Company so I could receive training prior to opening my own store. I worked for Genuine Parts Company for three months when it became apparent because of financial reasons that I would not be able to put in my own store. Since my job was only for the purpose of training me to operate my own store, I had no choice but to quit and to start looking for another job. We had an understanding when I went to work with them, I was going to work with them about two or three months and go into private business with them. An employee initiated that I should quit.”

Harris elaborated in his testimony. He said that:

He was interested in a store in Marshall, because it sounded like a good opportunity and because he wanted to return to Marshall, his hometown, to live. He did not want to commence business without any experience, so NAPA agreed to give him a job where he could get two or three months’ training. It was contemplated that he would open his store around March 15. He started work on this job around the first of the year. He did not replace anyone, but was just added to the staff at a branch store. There he performed a variety of jobs, which gave him an insight into various facets of store operation. The building he had intended to use for his store never became available. He could not find any vacant store for rent. He was never able to find a suitable building. It was his understanding when he first went to work for NAPA that his employment was not full time but would last only until he could get enough practical experience to open his own store, at which time he would terminate his employment. He became discouraged and discussed the matter with Dave Fowler, general manager, who finally asked him what his plans were, saying that time was drawing near for him to make a decision. He told Fowler the following Monday that he wouldn’t be able to go into business. He felt that it was his responsibility to terminate his employment. He understood that the company expected him to terminate his employment if he couldn’t go into business on his own. He had left a job when he started the management training program. He had taken a substantial cut in pay, but was willing to do so, because it was a “temporary type arrangement.” He felt that he should devote his time to trying to find a job he was better suited for, rather than continuing to work for Genuine Parts Company. He would have continued working for them if they had given him a pay raise.

The Board of Review held that appellant voluntarily quit the training employment which had been arranged for him and which he had pursued with a view toward operating his own franchised store. It found that the claimant changed his mind, elected to abandon his venture as an independent businessman and voluntarily quit his job training program for personal reasons unrelated to any good cause connected with the work within the meaning of Ark. Stat. Ann. § 81-1106 (a).

Appellant’s own statements constitute substantial evidence that he voluntarily and without good cause connected with the work, left his last work. In appellate review under Ark. Stat. Ann. § 81-1107 (d) (7), making the findings of the Board of Review, as to the facts, conclusive, if supported by evidence and in the absence of fraud, and confining judicial review to questions of law, we must give the successful party the benefit of every inference that can be drawn from the testimony, viewing it in the light most favorable to the successful party, if there is any rational basis for the board’s findings based upon substantial evidence. Stillman v. Unemployment Compensation Board of Review, 161 Pa. Super. 529, 56 A. 2d 380 (1948); James v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth 489, 296 A. 2d 288 (1972); Hinkle v. Commonwealth Unemployment Compensation Board of Review, 9 Pa. Commonwealth 512, 308 A. 2d 173 (1973). Even though there is evidence upon which the Board of Review might have reached a different result, the scope of judicial review is limited to a determination whether the board could reasonably reach its results upon the evidence before it and a reviewing court is not privileged to substitute its findings for those of the board even though the court might reach a different conclusion if it had made the original determination upon the same evidence considered by the board. Stillman v. Unemployment Compensation Board of Review, supra; Zielenski v. Board of Review, 85 N.J. Super. 46, 203 A. 2d 635 (1964); Gatewood v. Iowa Iron & Metal Company, 251 Iowa 639, 102 N.W. 2d 146 (1960). Even if the evidence is undisputed, the drawing of inferences is for the board, not the courts. Kessler v. Industrial Commission, 27 Wis. 2d 398, 134 N.W. 2d 412 (1965).

These particular rules governing judicial review of the actions of the Board of Review have not heretofore been articulated by this court. The decisions cited, however, are based upon statutory provisions governing judicial review which are similar or virtually identical to those contained in Ark. Stat. Ann. § 81-1107 (d) (7). The pertinent provision as to the effect of the board’s decision on judicial review is virtually identical to the provision of our Workers’ Compensation Law. Ark. Stat. Ann. § 81-1325 (b) (Repl. 1976). The cited decisions from other jurisdictions state the same rules we have applied to judicial review of decisions of the Workman’s Compensation Commission. See American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41; Fagan Electric Co. v. Green, 228 Ark. 477, 308 S.W. 2d 810; McKamie v. Kern-Trimble Drilling Co., 229 Ark. 86, 313 S.W. 2d 378; Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W. 2d 408; Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S.W. 2d 304; Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950; Superior Improvement Co. v. Hignight, 254 Ark. 328, 493 S.W. 2d 424; Missouri City Stone Inc. v. Peters, 257 Ark. 917, 521 S.W. 2d 58. It is appropriate that the rules governing judicial review in workmen’s compensation cases, a comparable area of the law, be applied to cases arising under the Employment Security Act. Stillman v. Unemployment Compensation Board of Review, supra. We have found it appropriate to do so in another situation. Reddick v. Scott, 217 Ark. 38, 228 S.W. 2d 1008. The burden was on the claimant to show good cause. Toland v. Schneider, 94 Idaho 556, 494 P. 2d 154 (1972); Hedrick v. Employment Division, 25 Or. App. 89, 548 P. 2d 525 (1976).

When we view appellant’s testimony in the light most favorable to the board’s finding, drawing all reasonable inferences favorable to that holding, we are unable to say that there is no rational basis for it. Our act disqualifies the employee voluntarily leaving work if he voluntarily “without good cause connected with the work” left his employment. Ark. Stat. Ann. § 81-1106 (a). Consequently cases requiring that the cause be attributable to the employer do not apply, as it might if the limitation were simply “without good cause.” See Putnam v. Department of Employment Security, 103 N.H. 495, 175 A. 2d 519 (1961). What constitutes good cause is usually a question of fact within the province of the Board of Review. Brinkman v. Catherwood, 32 A.D. 2d 587, 299 N.Y.S. 2d 350 (1969); Haynes v. Catherwood, 30 A.D. 2d 722, 291 N.Y.S. 2d 459 (1968).

“Voluntarily leaving work” in the sense in which the act renders a claimant ineligible for compensation has been said to be the opposite of discharge, dismissal or lay-off by the employer severing relations with the employee. Department of Labor & Industry v. Unemployment Compensation Board of Review, 133 Pa. Super. 518, 3 A. 2d 211 (1938). The appropriateness of the reasoning in that case is thus illustrated:

The meaning of the term is easily applied, is of general significance and obviates the necessity of an inquiry or examination into the mental processes of the employe which ied up to or brought about his resignation or quitting work of his own motion, the result of which might or might not be deemed voluntary as considered by different persons, from different points of view, and thus be variable and subject to no uniform standard.

In the Pennsylvania act, as in our own, the basic design is to protect the employee from his becoming unemployed through no fault of his own. It was there held that it was not the province of the board of review to explore the reasons or mental processes which led a claimant to give up his employment. The court remarked that few actions are taken in this world without some extraneous constraining or compulsive force, so the application of the term defined on an uncertain basis would be doing violence to its usual and ordinary meaning in the light of the purpose of the act.

Dissatisfaction with the wage paid is not good cause for termination. of employment as a matter of law. Weber v. Catherwood, 32 A.D. 2d 697, 299 N.Y.S. 2d 957 (1969); Brinkman v. Catherwood, supra; Haynes v. Catherwood, supra; Toland v. Schneider, supra. Neither is leaving to seek other employment. Moore v. Doyal, 240 So. 2d 17 (La. App., 1970). Failure of appellant’s plans for self-employment in and of itself did not constitute good cause as a matter of law, particularly when appellant would have continued working if he had been given a pay raise and a part of the reason for his leaving was to devote his time to seeking a job for which he felt he was better suited.

Appellees suggest that appellant should have been disqualified under § 81-1106 (g), which provides for disqualification of one who quit his last job to become self-employed. Regardless of the merits of this argument, the Board of Review made no finding of fact on this question. When this is the case, the courts may not discharge the fact-finding functions of the board. Hays v. Batesville Mfg. Co., 251 Ark. 659, 473 S.W. 2d 926; Reddick v. Scott, supra. Consequently, we do not consider this argument.

Since we find substantial evidence to support the board’s action, the judgment is affirmed.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.


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

text:
    Mr. and Mrs. Vernie LANGLEY Jr. v. Dale Allen DENTON
    78-25
    568 S.W. 2d 19
    Opinion delivered July 10, 1978
    (In Banc)

      Wheeler, Watkins, Graham & Wyrick, by: Kelvin Wyrick, for appellants.

      McMillan, Turner & McCorkle, by: H. W. McMillan, for appellee.
   Conley Byrd, Justice.

The plaintiff and the defendant were divorced on August 15, 1974, at which time a property settlement was reached and it was agreed that Patricia Den-ton would have custody of the two children, Michael Denton and Jennifer Denton, and that neither party could take the children out of the State of Arkansas without prior approval of the court.

Subsequent, thereto, the plaintiff, Patricia Denton, married Jerry Sossamon and established a residence in Mesquite, Texas, and asked that she be permitted to take the two minor children with her to her residence there.

On December 27, 1974, the court in granting the plaintiff permission to take the children to Texas, required that the plaintiff make a bond in the sum of $1,000.00 with her parents, Mr. and Mrs. Vernie Langley, Jr., as sureties, which was done. The order entered provided:

“4. Patricia Denton Sossamon shall deliver the children to the Defendant, Dale Allen Denton, at his home in Clark County, Arkansas, on the Sunday afternoon one week after the closing of school, where they shall remain until the Sunday two weeks before school shall start. During this summer visitation Patricia Denton Sossamon shall have the right to visit her children on every other weekend and Dale Allen Denton shall not be required to pay any support money.”

Thereafter on May 29, 1975, the plaintiff, Patricia Den-ton Sossamon, appeared with her husband, Jerry Sossamon, before the court in Arkadelphia, Arkansas, accompanied by her attorney, Travis Mathis, and her parents, Mr. and Mrs. Vernie Langley, Jr. This appearance was without notice to the defendant who had no opportunity to appear and be heard.

The court made the following docket entry:.

“5-29-75 Mr. and Mrs. Sossamon before court. The older child needs to get special reading course at Garland, Texas, and court thinks he should be permitted to do this. Both children be left with the father today until June 8, hopefully Mr. Denton will agree, keep the girl and let the boy (go) and if a hearing is necessary will be held June 12.”

After the entry of the docket notation, Mrs. Sossamon called and told appellee that she had a court order to permit the boy to go to school and she didn’t think it would be right to split the children and appellee reluctantly agreed not to split the children.

Dale Allen Denton on August 15, 1975, learned that school in Garland, Texas, would open on Monday, August 18, 1975, and therefore, it would be completely impossible for him to have his children visit with him before school started. With this information he advised the court and upon instruction of the court summons was issued for Mr. and Mrs. Langley and Mrs. Sossamon.

Mr. Travis Mathis, attorney for the plaintiff, was notified and a hearing was had before the court on August 19, 1975, at which time Mr. and Mrs. Langley appeared in court. Mr. Langley testified and Mr. Mathis advised the court, as did Mr. Langley, that they were unable to communicate with Mrs. Patricia Denton Sossamon and did not know how to get in touch with her by telephone. The court was further advised that no one knew when the special school had been out.

After the hearing and apparently during the afternoon of August 19, 1975, Mr. Mathis wrote a letter to the court, that the school got out July 25.

On August 19, 1975, the court on its own motion inquired of the Superintendent of Schools at Garland, Texas, when the special class ended and was advised it ended July 25th.

In the latter part of 1976, appellee had some financial difficulties and got behind on his child support.

April 28, 1977, Jerry West Sossamon and Patricia Lou (Denton) Sossamon filed Suit No. 77-360 JUV 2 in the Juvenile Court of Dallas County, Texas, seeking to have the parent-child relationship between Dale Allen Denton and his minor children, Michael Allen Denton and Jennifer Lenea Denton, terminated. May 6, 1977, appellee filed the present petition to forfeit the bond. Summons was served on Mr. and Mrs. Langley and Travis Mathis was notified of the filing of the petition.

On May 19, 1977, at Dale Allen Denton’s request and without notice the court reaffirmed that “at all times (it had) retained jurisdiction of this cause.”

On June 3, 1977, upon motion of Patricia Denton (Sossamon) by her attorney, W. Kelvin Wyrick, and without notice to defendant, the court held that its order of May 19, 1977, was not to be construed as an attempt to prevent the Texas Court from properly (performing its duty) under the Texas law proceeding.

On June 10, 1977, the Juvenile Court of Dallas County, Texas, entered an order that “the petitioners Jerry Wayne Sossamon and Patricia Denton Sossamon and the Respondent Dale Allen Denton are all hereby restrained and enjoined from removing Michael Allen Denton and Jennifer Lenea Denton . . . from the jurisdiction of this court until such further orders of this court or until such time as the above styled and numbered cause has been disposed of.”

August 23, 1977, Travis Mathis notified appellee and the court that he did not represent Mrs. Sossamon. On that day appellee notified Mrs. Sossamon by registered mail, return receipt requested, of the hearing on this petition to forfeit the bond. The registered letter was returned marked “Refused.”

Mr. Langley testified that Mr. Mathis had been employed to represent Mrs. Sossamon before the petition to forfeit the bond was filed and that he had loaned her the $300 to pay her attorney’s fee. Mr. Langley acted as Mrs. Sossamon’s conduit in firing Mr. Mathis and accepting the refund of the 8300 fee previously paid. Mr. Langley could not place the time of the firing of Mr. Mathis but stated that it was after he employed Mr. W. Kelvin Wyrick.

Appellee testified that Mrs. Sossamon had again changed her telephone number to an unlisted number and that he was unable to contact either Mrs. Sossamon or his children by phone. He also introduced a box, containing a birthday present for the boy and some money for the daughter, that had been returned marked “refused.”

At the hearing on the bond forfeiture the court found:

“a. That the Chancery Court of Clark County, Arkansas has had continuing jurisdiction of these children and the subject matter of this litigation at all times since the filing of the original petition for divorce.

“b. That the purpose of the bond was to prevent the Defendant, Dale Allen Denton, from having to go into Texas to defend any litigation or to take any legal action to protect his rights to his children; but if he had to do so to enforce his rights under this court’s decree to use the bond proceeds to help defray his expense as set out in Herring v. Nyle Morton, 248 Ark. 718.

“c. The plaintiff, Patricia Denton Sossamon, well knew this, and her action in proceeding in the Texas Juvenile Court and having the court issue a restraining order or creating a situation where the court might issue such restraining order, was in direct and strict violation of the orders of this court.

“d. That the Plaintiff, Patricia Denton Sossamon, has at all times known of the proceedings in this court and has apparently sought in every way possible to avoid the jurisdiction of this court. Well knowing that she was placing her parents in a position of a possible bond forfeiture. The same attorney, who appeared specially for her before this court on June 3, 1977, now represents Mr. and Mrs. Vernie Langley and professes not to represent her. She has sought by devious means to avoid carrying out the orders of this court giving the Defendant, Dale Allen Denton, the right to see and visit with his children; but she has used this court when it served her purposes.

“For these reasons the bond of December 27, 1974, is forfeited and Patricia Denton Sossamon, Mr. Vernie Langley, and Mrs. Vernie Langley, are ordered to pay said $1,000.00 into the Registry of this court within two weeks from this date.”

Mr. and Mrs. Langley have appealed raising the issues hereinafter discussed.

POINT I. Appellants contend that the forfeiture of the bond was error because the Chancery Court had not ordered Patricia Denton Sossamon to appear for any hearing. We find no merit to this contention. The order permitting Mrs. Sossamon to remove the children from the jurisdiction of the court provided:

“1. Patricia Denton shall make a bond in the sum of One Thousand ($1,000) Dollars with her parents, Mr. & Mrs. Vernie Langley, Jr. as sureties which bond shall guarantee that Patricia Ann Denton shall return the children to the jurisdiction of this Court at any and all times which this Court may require.
♦ * *
4. Patricia Denton Sossamon shall deliver the children to the defendant, Dale Allen Denton at his home in Clark County, Arkansas on the Sunday afternoon one week after the closing of school where they shall remain until the Sunday two weeks before school shall start.

The bond executed by Mr. and 'Mrs. Denton and Mrs. Sossamon provides: “We, Mary Langley and Vernie Langley, Jr. . . . hereby bind ourselves in the penal sum of One Thousand ($1,000) Dollars, if our daughter, Patricia Langley Denton Sossamon, does not fully abide by the orders of this court, made this 27th day of December, 1974.” Furthermore, at the time of the hearing held on September 6, 1977, it was admitted by all parties that Mrs. Sossamon had not complied with the visitation provisions of the December 27, 1974 order for the summer of 1977. Since the purpose of bonds, such as here involved, is for the use and benefit of the party litigant in enforcing the decree of the court in any jurisdiction where the children may be found, Herring v. Morton, 248 Ark. 718, 453 S.W. 2d 400 (1970), the Texas order in the suit instituted by Mrs. Sossamon is not a defense to a bond forfeiture petition.

POINT II. We find no merit to the contention that there was no service of process issued to Mrs. Sossamon. The record indicates that she had Mr. Travis Mathis employed to act in her behalf relative to the custody of the children at the time appellee’s petition was filed and served upon him. However, if we assume that he was not employed to accept service of appellee’s motion, the record still shows that appellants’ present counsel appeared specially in this matter to get an exparte order after appellee’s petition was filed and that on August 23, 1977, Mrs. Sossamon was served by registered mail, return receipt requested, which was refused. Furthermore, it would appear that she had some contact with appellants after the filing of the petition for arrangements were made to get a refund of the fee from Mr. Mathis. Furthermore, since appellants had ample notice of the petition by way of summons, we know of no law that requires notice upon Mrs. Sossamon before the penalty of their bond can be invoked against them as sureties.

POINT III. Appellants’ contention that it was error to hold Mrs. Sossamon responsible for the issuance of the Texas restraining order has no merit. The Texas decree which arose as a result of Mrs. Sossamon’s own act in filing the Texas action cannot be used as an excuse to prevent a forfeiture of the bond. As pointed out above, the purpose of the bond was to assist appellee in going into a foreign jurisdiction to defend such litigation.

POINT IV. Appellants’ suggestion that the court did not adjudicate that its order had been violated has no merit in view of the trial court’s finding that Mrs. Sossamon “has sought by devious means to avoid carrying out the orders of this court giving the Defendant, Dale Allen Denton, the right to see and visit with his children, but she has used this court when it.served her purposes.”

POINT V. Appellants contend that the filing of the termination suit in the Texas Court was not a violation of the Clark Chancery Court order. The issue before the trial court was whether Mrs. Sossamon had failed to comply with the orders of the Clark Chancery Court which permitted her to take the children into Texas in the first place and as pointed out by the trial court the purpose of the bond executed by appellants was to prevent the appellee from having to go into Texas to défend any litigation or to take any legal action to protect his rights but that if he had to do so to enforce his rights under the court’s decree then he had a right to use the bond proceeds to help defray his expenses. In so far as the issues on the bond forfeiture were concerned, we cannot say that the trial court erred in finding that filing of the Texas suit was a violation of the court’s order to the extent that appellee could use the bond proceeds to defend the Texas action.

Affirmed.

George Rose Smith, Fogleman and Hickman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I cannot agree with the trial court’s holding that the purpose of the bond was to prevent appellee from having to go into another jurisdiction to defend any legal action or to protect his rights in regard to his children. We did not so hold in Herring v. Norton, 248 Ark. 718, 453 S.W. 2d 400. We said that the purpose of the bond was to insure compliance with the orders of the court and to give some security to the parties litigant. We simply held that, upon forfeiture of the bond, its proceeds should not go into the county treasury, but should be held in the registry of the court for the use and benefit of the parties litigant in enforcing the decree of the court in any jurisdiction where the minor might be found. But now, in spite of our language in Herring, the majority sustains the trial court’s misinterpretation of that opinion.

Furthermore, there was no evidence upon which the trial court could have found that Patricia Denton Sossaman had the court in Texas issue a restraining order or that the mere filing of a proceeding for termination of parental relation in a court in the state where the minor children spend most of their time and where their custodial parent now lives, was a violation of the orders of the Arkansas courts, even though such a court, for the protection of its own jurisdiction might, in such a case, issue an order preventing the removal of the children from that state. Presumably, the state of Texas is much more concerned today with the welfare of these children than any other state, because the children are now, in effect, wards of that state.

Saying that the order of the Texas court is no defense to the bond forfeiture provision actually does what the trial court said it had no intention of doing, i.e., “prevent the Texas court from properly (performing its duty) under the Texas law proceeding.”

The end result of the holding today places Arkansas in the posture of saying that because our courts retain jurisdiction over children of a broken marriage, a custodial parent dare not invoke the jurisdiction of any other court. The idea of such exclusivity of jurisdiction should not even be entertained.

I am authorized to state that Mr. Justice George Rose Smith and Mr. Justice Hickman join in this opinion.


author: Conley Byrd, Justice.

text:
    Gary Lee BROWN and Ralph J. BYERS d/b/a SWANK BOOKSTORE And Charles CONNER d/b/a BUTTERFIELD TRAIL NEWSSTAND AND COIN SHOP v. Warren O. KIMBROUGH
    78-45 and 78-46
    568 S.W. 2d 226
    Opinion delivered July 10, 1978
    (Division II)

      Pearce & Robinson, for petitioners.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Dep. Atty. Gen., for respondent.
   Conley Byrd, Justice.

This matter comes before us for writs to prohibit the respondent, Honorable Warren O. Kimbrough, chancellor, from hearing that portion of two complaints filed by the prosecuting attorney seeking a blanket injunction against the future sale of any writing, picture, motion picture, films, slides, drawings, or other visual reproductions of obscene material as defined in Acts 1977, No. 464 [Ark. Stat. Ann. §§ 41-3501 — 41-3509 (Repl. 1977)]. The petitioners contend that there is no statutory authority for such action on the part of the prosecuting attorney. The respondent contends that such authority is granted by Acts 1977, No. 464 and Acts 1961, No. 261. In addition, respondent contends that this is not an appropriate proceeding for a writ of prohibition.

The record shows that the prosecuting attorney filed two identical actions against the petitioners seeking an adjudication against petitioners Gary Lee Brown and Ralph J. Byers that a film entitled “Rectum Hell” was obscene and an adjudication against petitioner Charles Conner that a magazine “Black, Bald and Beautiful” was obscene. In addition to seeking a permanent injunction against the dissemination of the film “Rectum Hell” and the magazine “Black, Bald and Beautiful” the complaint also seeks to prospectively enjoin the petitioners from disseminating any obscene material described by Acts 1977, No. 464. The petitioners have offered no defense to the film “Rectum Hell” and the magazine “Black, Bald and Beautiful.” However, they filed a demurrer to so much of the complaints as sought to prospectively enjoin them from any future violations of the obscenity laws. These petitions were filed here after the trial court overruled the demurrers and announced that an early trial date would be set.

Acts 1977, No. 464, after imposing and defining a statewide standard for the definition and regulation of obscenity provides in Section 9 [Ark. Stat. Ann. § 41-3509 (Repl. 1977)], as follows:

“Prosecuting attorneys are hereby authorized to institute actions to determine obscenity of materials described in Sections 3, 4, and 6 [§§ 41-3503, 41-3504, 41-3506] of this Act as is now provided by Act 261 of 1961 [§§ 41-3562 — 41-3577] in the case of mailable matter, and no person shall be prosecuted for violating Sections 3, 4, or 6 of this Act unless such violation occurs after the material being promoted or displayed has been found obscene in accordance with Act 261 of 1961.
Provided, that prosecuting attorneys may obtain an injunction against violations of this Act [§§ 41-3501 — 41-3509] in accordance with Act 261 of 1961. In actions brought to determine obscenities of films or other matter where attachment to the complaint is not practical as directed by Act 261 of 1961, it shall be sufficient that prosecuting attorneys set forth in the complaint a reasonable description of the films or materials sought to be adjudicated.”

Acts 1961, No. 261 consists of 16 sections, compiled as Ark. Stat. Ann. §§ 41-3562 — 41-3577 (Repl. 1977) and in so far as here applicable provides:

“§ 41-3565. (1) Every person who, with knowledge of contents, sends or causes to be sent, or brings or causes to be brought, into this State for sale or commercial distribution, or in this State prepares, publishes, sells, exhibits or commercially distributes . . . or has in his possession with intent to sell or commercially distribute or exhibit... or who knowingly informs another of when, where or how or from whom . . . these things can be purchased . . . shall be guilty of a felony
§ 41-3566. Whenever the Prosecuting Attorney for any county has reasonable cause to believe that any person with knowledge of its contents, is
(1) Engaged in sending or causing to be sent, bringing or causing to be brought, into this State for sale or commercial distribution, or is
(2) In this State preparing, selling, exhibiting or commercially distributing, or giving away, or offering to give away, or has in his possession with intent to sell or commercially distribute or to exhibit or give away or offer to give away, any obscene mailable matter, the Prosecuting Attorney for the county into which such mailable matter is sent or caused to be sent, brought or caused to be brought, or in which it is prepared, sold, exhibited or commercially distributed or given away or offered to be given away or possessed, shall institute an action in the Chancery Court for that county for an adjudication of the obscenity of the mailable matter.
§ 41-3567. The action authorized in Section 5 [§ 41-3566] shall be commenced by the filing of a complaint to which shall be attached as an exhibit a true copy of the allegedly obscene mailable matter. The complaint shall:
(a) be directed against the mailable matter by name or description;
(b) allege its obscene nature;
(c) designate as respondents and list the names and addresses, if known, of its author, publisher and any other person sending or causing it to be sent, bringing or causing it to be brought into this State for sale or commercial distribution and of any person in this State preparing, selling, exhibiting or commercially distributing it or give away or offering to give it away, or possessing it with intent to sell or commercially distribute or exhibit or give away or offer to give it away;
(d) pray for an adjudication that it is obscene;
(e) pray for a permanent injunction against any person sending or causing it to be sent, bringing or causing it to be brought, into this State for sale or commercial distribution, or in this State preparing, selling, exhibiting or commercially distributing it, giving away or offering to give it away, or possessing it with intent to sell or commercially distribute or exhibit or give away or offer to give it away;
(f) pray for its surrender, seizure and destruction.
§ 41-3571. In the event the Courts [Court] finds the mailable matter to be obscene, it shall enter judgment to such effect and may, in such judgment or in subsequent orders of enforcement thereof:
(a) enter a permanent injunction against any respondent prohibiting him from doing or continuing to do any act condemned by this Act;
(b) direct any resident respondent to dispose of all such obscene mailable matter in his possession or under his control under such conditions and within such time as the Court may find to be reasonable;
(c) if any respondent shall fail to comply with the Court’s orders, direct all sheriffs in the State to seize and destroy all such obscene mailable matter in the possession or under the control of such respondent wherever the same may be found.
§ 41-3572. Every order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the respondents to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation by contract or arrangement with them who receive actual notice of the order by personal service or otherwise.
Copies of all orders of the Court in finding any matter to be obscene and all orders of injunction issued in regard thereto, shall be served upon all persons, and in the same manner, as is provided in Section 7 [§ 41-3668] of this Act.”

When we give a fair construction to the foregoing provisions, with reference to civil proceedings for an injunction it is obvious that the legislature was concerned only with obscene materials being promoted, displayed or possessed. Thus, we conclude that there is no statutory authority in Acts 1977, No. 464 and Acts 1961, No. 261, authorizing a prospective injunction against allegedly obscene material not described in the complaint and not being promoted, displayed or possessed by the petitioners when the action is filed. Whether the State may constitutionally authorize such conduct is a rather close legal question that we need not now consider.

Our cases regularly recognize that prohibition will lie to prohibit a trial tribunal wholly without jurisdiction or one that is threatening to act in excess of its jurisdiction where the remedy by appeal is inadequate. Skinner v. Mayfield, 246 Ark. 741, 439 S.W. 2d 651 (1969), and Bassett v. Bourland, 175 Ark. 271, 299 S.W. 2d 14 (1927). Since there exists no remedy against the State to restore or grant redress to a person who has been deprived by prior restraint of his right to exercise freedom of speech and press for whatever length of time the prior restraint may exist, it follows that petitioners’ have no adequate remedy by appeal from such an injunction issued in excess of the trial court’s jurisdiction.

Writ granted.

We agree: Harris, C.J., and Hickman and Howard, JJ.


text:
    BATES REEL COMPANY And SILVEY COMPANIES v. David C. BREASHEARS
    78-55
    567 S.W. 2d 959
    Opinion delivered July 10, 1978
    (Division I)

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

      Gannaway, Harrow & Hanshaw, for appellee.
   Frank Holt, Justice.

The Workmen’s Compensation Commission awarded appellee $2,500 for permanent facial disfigurement under the provisions of Ark. Stat. Ann. § 81-1313 (g) (Repl. 1976). The Commission also found that appellee “may be entitled to future revisional plastic surgery at [appellants’] expense, provided it is properly secured within the applicable statutory period.” The circuit court affirmed. Appellants’ sole contention on appeal is that the Commission erred in awarding a lump sum amount for permanent disfigurement under § 81-1313 (g) before appellee had corrective plastic surgery. § 8.1-1313 (g) provides:

The Commission shall award compensation for serious and permanent facial or head disfigurement in a sum not to exceed three thousand five hundred dollars ($3,500). No award for disfigurement shall be entered until twelve (12) months after the injury.

Here it is undisputed that, as a result of his injuries which necessitated hospitalization and surgery, appellee suffered a compensable disfigurement; a medical possibility existed of improving his cosmetic appearance by revisional plastic surgery; and the award was made more than twelve months following appellee’s injuries. However, appellants argue that it was not the legislative intent to subject an employer, as here, to the expense of a lump sum award plus future medical expenses for plastic surgery. Therefore, appellants insist that any award should be deferred until completion of plastic surgery or until appellee elects to forego such treatment. Appellee responds that by according a liberal interpretation to the act, the Commission’s award was in accordance with the legislative intent.

To accept appellee’s view that he is entitled to a lump sum award before the corrective surgery would require us to read into the act something that is manifestly absent. We hold that it was the legislative intent that the Commission should defer a final disfigurement award until completion of appellee’s plastic surgery or until the appellee elects to forego such surgery.

Reversed and remanded.

We agree: Harris, C.J., and George Rose Smith and Fogleman, JJ.


text:
    Harry H. PHILLIPS et ux v. Lurlene CARTER
    78-62
    568 S.W. 2d 24
    Opinion delivered July 10, 1978
    (Division I)

      Richard E. Griffin, for appellants.

      W. R. (Billy) Switzer, for appellee.
   Frank Holt, Justice.

The trial court, sitting as a jury, found that appellee was entitled to possession of a one-half acre tract of land by virtue of her claim of adverse possession. Appellants contend there is no substantial evidence to support the court’s finding.

On appeal “we affirm if there is any substantial evidence to support the finding after reviewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee.” Green v. Harrington, 253 Ark. 496, 487 S.W. 2d 612 (1972). There we explained that “in testing the sufficiency of the evidence as being substantial in nature, we consider the testimony of the appellees alone or that portion of all the evidence which is most favorable to them” and reverse only when it appears that there is “no reasonable probability that the incident occurred as found by the trial court. ” Here, appellee had the burden of proving her claim of adverse possession. Utley v. Ruff, 255 Ark. 824, 502 S.W. 2d 629 (1973). In order for adverse possession to ripen into ownership, “the possession for seven years must have been actual, open, notorious, continuous, hostile and exclusive, and it must be accompanied with an intent to hold against the true owner.” Utley v. Ruff, supra.

However, here appellants argue there was no evidence establishing that the appellee’s entry upon and subsequent occupancy of the land were adverse, as distinguished from permissive, to appellants’ record ownership rights in the property and payment of taxes. Appellants submit that the evidence at best demonstrates that appellee intended to hold the land under a claim of right and communicated such an intent to them only after her husband’s death in 1971.

Appellee and her husband moved upon the disputed property in 1967 pursuant to an oral agreement that they would receive a deed from the appellants. Under this agreement, as asserted by appellants, the Carters were allowed to move their trailer on the property upon payment of $250 (which payment was made) with the condition that if they moved off the property, possession would revert to the appellants upon the return of the $250 payment. Appellants admit that the Carters were promised a deed with this reservation. The deed was never delivered. The Carters made considerable improvements on the property. After her husband’s death in 1971, Mrs. Carter continued to live on the premises until March, 1972, when she moved her trailer to her sister’s yard because she “was afraid to stay there” by herself. About a week or two later, Mrs. Carter leased the half acre and thereafter continued to lease the land to a succession of tenants until appellants brought this action for possession in 1976. All tenants who occupied the premises paid rent directly to Mrs. Carter. There was evidence this was with appellants’ permission. Mrs. Carter’s request for delivery of the deed after her husband’s death was to no avail. She testified that a few days before her husband died in 1971 appellant Mr. Phillips, in her presence, assured her husband not to worry about the deed inasmuch as it was being drafted by a lawyer. During that discussion, no conditions were mentioned and, further, she had never heard of any restrictive conditions. She was present when her husband paid the $250 to the appellants for the property. On that occasion nothing was said about the deed containing “any conditions.” Appellant Phillips finally refused to deliver her a deed when he learned that she might sell the property. Appellant Phillips was told by appellee’s tenants that they were paying rent to Mrs. Carter. Mr. Phillips admitted that he had asked “her to sell it to me. The only response I ever got from her was that it was worth more than what she give me for it.” About nine or ten months before the trial of the case in 1977, Mrs. Carter refused appellants’ $450 check for the property. One witness testified that Phillips told him that, according to the terms of the agreement, the Carters “were to give him a chance to buy the property back.”

We have stated: “For possession to be adverse, as distinguished from permissive, it is only necessary that it be hostile in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to, the superior right of the owner, which is permissive.” Barclay v. Tussey, 259 Ark. 238, 532 S.W. 2d 193 (1976). There the appellant had entered into possession claiming a right based upon an oral exchange of lands. In setting aside the trial court’s finding that appellant’s possession was permissive in its inception, we stated: “Entry by one claiming title under a parole grant or exchange is adverse and not permissive. ...” We explained that “although entry under such a grant is permissive and friendly in the popular sense, it is nonetheless hostile and adverse to the paper title in the legal sense, because there is an assertion of ownership in the occupant.” When we view the evidence most favorable to the appellee, as we must do on appeal, there is substantial evidence to support the court’s finding that the Carters’ original entry into possession of the property under an admitted oral agreement was adverse, and this adverse possession continued for nine years preceding this litigation.

Neither can we agree with appellants’ contention that Mrs. Carter’s relinquishing possession for one or two weeks prevents her possession from being continuous in nature. As stated in 2 C.J.S. Adverse Possession § 197:

It is the general rule that mere temporary absences of claimant from the land adversely possessed by him or periods of vacancy of such land which evince no intention of abandonment do not interrupt the continuity of the adverse possession, provided the absence or vacancy does not extend over an unreasonable period.

Further, we find no merit in appellants’ contention that the fact Mrs. Carter’s husband was a second cousin to appellant, Mrs. Phillips, brings this case within the perimeters of our holding in Williams v. Killins, 256 Ark. 491, 508 S.W. 2d 753 (1974), that stronger evidence is required to prove adverse possession against a family member.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Fogleman, JJ.


author: Leroy Autrey, Special Justice. H. Murray Claycomb, Special Justice, George Rose Smith, Justice,

text:
    Monroe LOVE v. UNITED STATES FIDELITY AND GUARANTY COMPANY
    77-166
    568 S.W. 2d 746
    Opinion delivered July 10, 1978
    (In Banc)

      Lee A. Munson, Pros. Atty., by: John Wesley Hall, Jr., Dep. Pros. Atty., for appellant.

      Bridges, Young, Matthews & Davis, for appellee.
   Leroy Autrey, Special Justice.

This is the second time that this matter has come before the Supreme Court of Arkansas. On July 19, 1976, in United States Fidelity and Guaranty Company v. Monroe Love, 260 Ark. 374, 538 S.W. 2d 558-559 (1976), this Court held that the agreement of Pulaski County Sheriff Monroe Love to indemnify the surety, United States Fidelity and Guaranty Company, against any loss, damage or expense of any kind incurred by reason of the execution of the Sheriff’s statutory bond included attorneys’ fees expended by the surety in defending a civil rights action against the Sheriff, one of the Sheriff’s deputies and the surety in the United States District Court for the Eastern District of Arkansas. In reversing and remanding the case to the trial court, this Court stated:

“To be recoverable by the indemnitee, the attorneys’ fees must be reasonable, proper, necessary and incurred in good faith and with due diligence. ... These are factual questions to be determined by the trier of fact, and when properly placed in dispute are not matters to be disposed of on motion for summary judgment. Sheriff Love does, by sworn answers to interrogatories, place in issue the question of reasonableness of the fees paid. Accordingly, this case is reversed and remanded to the trial court for a determination of the reasonableness of the attorneys’ fees.”

At the hearing before the trial court on remand, Love took the position that under the mandate of this Court, he was entitled to “litigate the question of reasonableness, propriety and necessity, good faith and due diligence in the assessment of costs by USF&G in the conduct of their own defense. . . USF&G objected to the position taken by Love and the trial court ordered “that the only issue before the court today is the reasonableness of the attorneys’ fees”. At the conclusion of the hearing on February 11, 1977, the trial court entered judgment for USF&G against Love in the amount of $1,962.50 plus costs and interest at the rate of six percent (6%) per annum from date until paid. The sum of $1,962.50 represented the full amount of the attorneys’ fees paid by USF&G and this attorneys’ fee was based on 55.30 hours of time expended by the defense attorney billed at the rate of $35.00 per hour, plus the court reporter’s costs. There is no indication in the judgment of the trial court or in the record of the proceedings before trial court that any consideration was given to any factors other than the actual hours of time expended by the defense attorneys and the reasonableness of the hourly rate, plus the court reporter’s costs, in the trial court’s determination of the “reasonableness of the attorneys’ fees”.

In Robinson v. Champion, 475 S.W. 2d 677, 678, 251 Ark. 817 (1972), this Court held:

“Among the pertinent considerations in determining the reasonableness of attorney’s fees are: the attorney’s judgment, learning, ability, skill, experience, professional standing and advice, . . . the relationship between the parties, . . . the amount or importance of the subject matter of the case, . . . ; the nature, extent and difficulty of services in research, collection, estimation and mental array of evidence and anticipation of defenses and means of meeting them, and cpnsidering the case, receiving confidential information and giving confidential advice before any pleadings are filed or other visible step is taken, . . . the preparation of pleadings, . . . ; the proceedings actually taken and the nature and extent of the litigation, . . . ; the time and labor devoted to the client’s cause, . . . ; the difficulties presented in the course of the litigation, . . . ; the results obtained, . . . and many other facts beside the time visibly employed ...”

The factors to be considered as guides in determining the reasonableness of an attorneys’ fee are set forth in the Code of Professional Responsibility of the American Bar Association adopted by per curiam order of Court as the rule in this state after the Code had been promulgated and adopted by the American Bar Association under the chairmanship of the late Edward L. Wright, a leader at the bar of this State for many years, who served as a president of the American Bar Association. These considerations as set forth in Disciplinary Rule 2-106 as follows:

“. . . Factors to be considered as guides in determining the reasonableness of a fee include the following:
“(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
“(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
“(3) The fee customarily charged in the locality for similar legal services.
“(4) The amount involved and the results obtained.
“(5) The time limitations imposed by the client or by the circumstances.
“(6) The nature and length of the professional relationship with the client.
“(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
“(8) Whether the fee is fixed or contingent.”

In the recent case of Waters v. Wisconsin Steelworks, 502 F. 2d 1309, 1319 (C.A. 7, 1974), the Seventh Circuit U.S. Court of Appeals cited and quoted from the above provisions of Disciplinary Rule 2-106 in reversing the U.S. District Court’s award of attorneys’ fees to Plaintiff’s counsel pursuant to Section 706(k) of Title VII, 42 U.S.C. § 2000(e)-5(k), with the comment that the trial court’s award of attorneys’ fees “was so lacking in analysis that it constituted an abuse of discretion.” The court went on to say:

“In fashioning a method of analysis to assist in determining the amount of attorney fees properly to be awarded in a Title VII action, we cannot subscribe to the view that attorney fees are to be determined solely on. the basis of a formula applying ‘hours spent times billing rate. ’ We recognize however that such a factor is a consideration in making the ultimate award and indeed it is a convenient starting point from which adjustments can be made for various other elements. Other elements to be considered are set out in the Code of Professional Responsibility as adopted by the American Bar Association: ...”

While an important element to be considered in determining the reasonable value of an attorney’s services is the time spent in the performance of such service, it has frequently been held that time spent in doing professional work is not a controlling factor in assessing the value of such services. Time spent by an attorney is sometimes of minor importance in determining the reasonable value of his services since an experienced or skillful attorney might accomplish in a very short time what another attorney would require a much longer time to accomplish. See Trimble v. Kansas City S&GR Co., 201 Mo. 372, 100 S.W. 7, 7 Am. Jur. 2d, Attorney’s at Law, § 238, at Page 184.

In Weeks v. Southern Bell Telephone & Telegraph Company, 467 F. 2d 95, 97 (C.A. 5, 1972), the Fifth Circuit U.S. Court of Appeals affirmed the award of a $15,000.00 attorney’s fee by Judge Griffin B. Bell, now United States Attorney General, but then a judge of the U.S. Court of Appeals for the Fifth Circuit who was assigned to hear the matter on the district court level. In affirming Judge Bell’s award of attorney’s fees against the claim that Judge Bell had not awarded a fee of a sufficient amount in view of the hours of work claimed by the Plaintiff’s attorney, the Fifth Circuit Court said:

“Hours claimed or spent on a case is not the sole basis for determining a fee. Electronics Capital Corp. v. Sheperd, 5 Cir. 1971, 439 F. 2d 692, 693. In any event, the time factor has a ‘dubious virtue ... as a standard for legal services’; ‘when hours of time become a criterion, economy of time may cease to be a virtue. ’ See Hornstein, Legal Therapeutics: The Salvage Factor in Counsel Fee Awards, 69 Harv. L. Rev. 658 (1956).”

The Fifth Circuit Court of Appeals then went on to explain that Judge Bell had thoroughly discussed the basis for the award of attorneys’ fees, weighing the results obtained, the time expended, the testimony of experienced attorneys involved in litigation of this type, the briefs filed, efforts on remand, and the contingency of the attorney’s fee award. The Court concluded by stating:

“The question before this reviewing court is not what fee the members of this panel might have awarded sitting as a district court. The question is whether Judge Bell abused his discretion by awarding an unreasonably low fee. The majority answers firmly that Judge Bell did not abuse his discretion in making his award of $15,000.00 fees to Mrs. Roberts.”

When this Court remanded this matter to the trial court for determination of the “reasonableness of the attorneys’ fees” in USF&G v. Love, supra, this court’s opinion and the applicable law as above set out clearly required that the trial court consider more than the hours of time expended by the defense attorney and the reasonableness of the hourly rate charged. The trial court should have permitted Love to proceed with any evidence he may have had to present on the “question of the reasonableness, propriety and necessity, good faith and due diligence” of the attorneys’ fees and should have considered such evidence along with all other evidence in determining the reasonableness of the attorneys’ fees to be paid by Love.

While the trial court in the exercise of its reasonable discretion in matters of this kind might well conclude that the reasonable fee which USF&G is entitled to recover from Love amounts to the sum of $1,962.50, the trial court erred in failing to consider matters other than the hours of time expended by the defense attorneys and the reasonableness of the hourly rate charged for such time. Accordingly, the judgment of the trial court is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion on the question of the reasonableness of the involved attorneys’ fees.

Special Justice H. Murray Claycomb concurs; Special Chief Justice E. J. Butler joins in the majority opinion; George Rose Smith and Byrd, JJ., dissent. Harris, C.J., and Fogleman and Holt, JJ., not participating.

H. Murray Claycomb, Special Justice,

concurring. I would concur in the opinion of the majority of the court in reversing and remanding this matter to the trial court for further proceedings consistent with the opinion, but for differing reasons.

As the majority opinion has stated, this court in its prior decision in United States Fidelity & Guaranty Co. v. Monroe Love, 260 Ark. 374, 538 S.W. 2d 558-559 (1976), held:

“To be recoverable by the indemnitee, the attorney’s fees must be reasonable, proper, necessary and incurred in good faith and with due diligence. . . . These are factual questions to be determined by the trier of fact, and when properly placed in dispute are not matters to be disposed of on motion for summary judgment. Sheriff Love does, by sworn answers to interrogatories, place in issue the question of reasonableness of the fees paid. Accordingly, this case is reversed and remanded to the trial court for a determination of the reasonableness of the attorney’s fees.”

When the appellant on remand in the trial court attempted to introduce evidence concerning the reasonableness, propriety, necessity, the incurrence in good faith and with due diligence of expenses by U. S. F. & G. in conduct of their own defense, the trial court ruled that the only issue before the court was the reasonableness of the attorney’s fees.

The appellant brought the present appeal on the ground that the trial court erred in prohibiting Love from challenging the reasonableness, necessity, propriety and due diligence of U. S. F. & G. in incurring legal fees in its defense of the federal action under the bond. To me the central question before the court in this appeal is the meaning of the court’s language quoted above from the opinion in the former appeal. The language of that opinion is susceptible of being interpreted in either of two ways. It could mean the appellant was entitled to introduce evidence, as he contends, relating to reasonableness, propriety, necessity and due diligence in incurring attorney’s fees. The factor of “good faith”, as will be pointed out, is no longer in issue. The latter part of the paragraph is susceptible of the interpretation that all of the factors mentioned in the preceding language could be introduced in a proper case when contentions are made properly raising these points before the court, but in this case only the question of “reasonableness” has been raised and was to be considered on remand to the trial court.

Under the rule of the law of the case, this court has held:

“It is well settled that on a second appeal the judgment on the former appeal becomes the law of the case, and is conclusive on every question of law or fact decided in the former suit, and also of those which might have been but were not presented.”Storthz v. Fullerton, 185 Ark. 634, 48 S.W. 2d 560.

Since the previous opinion in this case stated that the sworn answers to interrogatories by appellant placed in issue the question of reasonableness of the fees paid, it. would be instructive to examine the interrogatories referred to to see what contentions had been made and, to determine whether the use of the phrase “the question of reasonableness of the fees paid” was a shorthand expression including all the factors previously mentioned in the paragraph or was a determination that only the specific issue of the reasonableness of the method of calculating the fees was in issue.

The interrogatories in question are as follows:

“Interrogatory No. 4: Do you contend that the attorney’s fees and expenses in the amount of $1,962.50 which were incurred by the plaintiff in defending the civil law suit described in the complaint are unreasonable?
Answer: In light of the services ostensibly performed, yes.”
“Interrogatory No. 5: Do you contend that the attorney’s fees and expenses in the amount of $1,962.50 which were incurred by the plaintiff in defending the civil lawsuit described in the Complaint were incurred in bad faith?
ANSWER: Based on present knowledge, no.”

By the appellant’s negative response to Interrogatory No. 5 he eliminated the question of good faith as a factor to be considered in determination of the attorney’s fee. This was apparently acknowledged by the appellant since no reference is made to this factor in his ground for seeking reversal of the trial court’s ruling.

On first reading of the response to Interrogatory No. 4, one could conclude that the question and answer raised only the matter of whether the amount of the attorney’s fees was a reasonable sum considering the various elements which go into arriving at a fee for such services as is fully explored in the majority opinion. On further consideration, however, it is apparent that the amount of attorney’s fees and expenses would be directly affected by and related not only to whether the attorney’s fees are reasonable under the proper criteria, but also, whether the attorney’s fees were properly incurred, whether under the circumstances such services were necessary and whether the services rendered were performed with due diligence. The appellant’s response that “In light of the services ostensibly performed ... ”, he was questioning in all respects the amount of attorney’s fees and expenses incurred by the plaintiff in defending the civil lawsuit, placed in contention before the court all the factual questions which the court’s prior opinion stated should be decided by the trier of fact. These issues were therefore raised and it is my understanding of the prior court’s opinion, in light of what was before it at that time, that the trial court should have heard such admissible evidence as was offered concerning the various factors, with the exception of good faith, as previously noted.

With the modifications herein expressed, I would concur in the majority opjnion that the judgment of the trial court be reversed and the matter be remanded to the trial court. In addition to the consideration of the question of the reasonableness of the attorney’s fees involved, I would allow proof of the necessity, propriety and due diligence of the appellee in incurring legal fees in its defense of the federal action under the bond.

George Rose Smith, Justice,

dissenting. This is the second appeal in this case. Under our firmly settled rules of practice we are bound by the opinion on the first appeal, even though we may now think it to have been wrong. Wilson v. Rodgers, 256 Ark. 276, 507 S.W. 2d 508 (1974); International Harvester Co. v. Burks Motors, 252 Ark. 816, 481 S.W. 2d 351 (1972); Farmers Cooperative Assn. v. Phillips, 243 Ark. 809, 422 S.W. 2d 418 (1968).

The majority do not imply that our first opinion was wrong. Instead, they purport to be following that opinion in declaring that on remand the trial court should have permitted Love to proceed with evidence about questions of reasonableness, propriety, necessity, good faith, and due diligence with regard to the attorneys’ fees. The majority, in reaching their conclusion, simply disregard the plain language of the final paragraph in our earlier opinion, which reads:

To be recoverable by the indemnitee, the attorneys’ fees must be reasonable, proper, necessary, and incurred in good faith and with due diligence. [Citations omitted.] These are factual questions to be determined by the trier of fact, and when properly placed in dispute are not matters to be disposed of on motion for summary judgment. Sheriff Love does, by sworn answers to interrogatories, place in issue the question of reasonableness of the fees paid. Accordingly, this case is reversed and remanded to the trial court for a determination of the reasonableness of the attorneys’ fees.

Since the above paragraph is controlling on this second appeal, it must be studied with care. When that is done, anyone who has experienced again and again the anguish of trying to write with brevity but with clarity must realize that the paragraph is admirably written. Special Chief Justice Ross, in writing the paragraph, made in logical sequence five important points, which I restate with some comment:

First: Recoverable attorneys’ fees must have five characteristics. They must be reasonable, be proper, be necessary, be incurred in good faith, and be incurred with due diligence.

Second: These characteristics present factual questions to be determined by the trier of fact. Note that there are five possible questions — not, as the majority now hold, only one (that of reasonableness).

Third: These factual matters are not to be disposed of on summary judgment when properly placed in dispute. Again the reference is in the plural, not to this mailer but to these matters.

Fourth: Sheriff Love does place in issue the question of reasonableness. In other words, the sheriff does place in issue not all five questions but the single question of reasonableness. Otherwise the word “does” has no place in the sentence.

Fifth: Accordingly, the cause is remanded for a determination of the reasonableness of the fees. Again one question out of five is singled out for further consideration.

If we were now being presented for the first time with a broad question, whether the “reasonableness” of an attorney’s fee includes such matters as its necessity, the attorney’s good faith, and so on, I would have no quarrel with the majority’s broad interpretation of “reasonableness. ” But that is not the issue. On the first appeal the question was narrowed down to exclude propriety, necessity, good faith, and due diligence. We are duty-bound to adhere to our former opinion, as the law of the case. Otherwise what is now happening becomes unavoidable: The trial court is reversed a second time for doing exactly what this court told him to do. Gilbert and Sullivan might have added that the trial judge’s lot is not a happy one!