author: James H. Pilkinton, Judge.

text:
    J.S. HENDERSON/HENDERSON BROTHERS, Employer, et al v. Edgar N. WINCHESTER, Employee
    CA 79-318
    594 S.W. 2d 866
    Court of Appeals of Arkansas
    Opinion delivered February 27, 1980
    Released for publication March 19, 1980

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

      Gibson & Gibson, by: R. Bynum Gibson, Jr., for appellee.
   James H. Pilkinton, Judge.

This is a workers’ compensation case. On April 20, 1977, the claimant suffered a back injury. Claimant was seen and treated immediately after the injury by Dr. Roland Colclasure, a chiropractor, who then referred him to Dr. Joe K. Lester, an orthopedic surgeon, who has performed all subsequent orthopedic treatment. Claimant was hospitalized and a back disc was removed at the L5-S1 level. He returned to work with the same employer for a brief period but was unable to continue, and left his employment. He has not worked since that time. After leaving work the last time, Mr. Winchester has been seen and treated by Dr. Lester on numerous occasions. In addition to Dr. Lester, claimant has been seen and evaluated by various persons from the standpoint of possible vocational rehabilitation.

Claimant had been discharged by Dr. Lester with a 20% anatomical disability. Based upon all of the medical and other evidence, the Arkansas Workers’ Compensation Commission found that Mr. Winchester was permanently and totally disabled as the result of the admittedly compensable injury which he received on April 20, 1977, in the course of his employment.

On appeal respondents are not questioning the fact that this is an appropriate case for an award of economic disability in addition to the anatomical disability found by Dr. Lester. Respondents concede the doctrine of Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961), should be applied in some degree to this case. However, respondents question the finding of total and permanent disability, and argue there is no substantial evidence to support the extent of the award. That is the only issue on appeal.

The question before this court is not to determine where the preponderance of the evidence lay, but whether the order of the commission is supported by substantial evidence. It is well settled that the findings of the commission are entitled to the same force and effect as the verdict of a jury.

We have carefully reviewed the record and have concluded that there is substantial evidence to support the findings and award of the Arkansas Workers’ Compensation Commission in this case. Mr. Winchester was thirty years of age when injured. He injured his back and has been unable to work since. He attended school for only three or four years, and never learned to deal with even first grade materials. His educational training has been almost totally lacking. His work history and experience are also very limited. He began full time work as a farm laborer at the age of nine, and has done this type of employment over the years. It is undisputed that his back is very'stiff and he has little ability now to bend, stoop or lift. When he does engage in any physical exercise, even light work, or stays in a prolonged position, the pain returns in lower back, and radiates into his right leg, resulting in weakness in that leg. He can stand or move around slowly for about two hours at most, but is only able to walk about four blocks before the right leg aches severely.

As already noted, Mr. Winchester is intellectually lacking. The record shows he is unable to understand any abstract verbalization. He has almost no comprehension of what his injury might be or how he might deal with it more effectively. The evaluation report of Dr. Douglas A. Stevens, PhD., of the Southwestern Services Institute, states that claimant is certainly not overreacting to his injury, but is simply unable to make any headway in his rehabilitative effort because of his lack of comprehension regarding his injury. Dr. Stevens says Mr. Winchester displays no emotional distress outside of what might be expected although he does have some agitation regarding his inability to work. When talking about his future Mr. Winchester stated, “I know how to farm real good and tha.t’s all I know”. The record is clear that physical work is all this claimant knows. Being unable now to function in that role, Dr. Stevens says the claimant experiences a great deal of anxiety, agitation and concern as to what the future holds. He wants to work but cannot.

In summary, the evidence shows this claimant to be a young man who has no education, is illiterate, and intellectually functions in the mentally retarded range. He cannot now do the farm work from which he has earned a living all of his adult life. As thus disabled, he is thrown into the job market with no skills, little capacity for retraining, and limited at best to simple tasks,which make up only 3% or less of the labor market. The evidence indicates that hiring practices further interfere with his ability and prospects for gainful employment for, as the evidence shows, he is competing against whole bodied individuals without his educational or other limitations. Thus the evidence shows, as a practical matter, that claimant’s chances of finding gainful employment are nil. This case bears a great similarity to Rooney and Travelers Ins. Co. v. Charles, 262 Ark. 695, 560 S.W. 2d 797 (1978).

Ordinarily a 20% anatomical disability would not be sufficient to support a finding of total disability even with economic disability taken into consideration and added; however, in this case there is sufficient evidence upon which to support such a finding.

After a careful review of the evidence, and giving consideration to the factors mentioned in Glass v. Edens, supra, Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W. 2d 863 (1968), and other cases dealing with such matters, we are persuaded that there is substantial evidence to support the commission’s award of permanent and total disability.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Richard CALDWELL and Stephen BLAKELY v. STATE of Arkansas
    CA CR 79-131
    595 S.W. 2d 253
    Court of Appeals of Arkansas
    Opinion delivered February 27, 1980
    Released for publication March 19, 1980

      Ted Boswell, P.A. and Henry B. Means, for appellants.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   James H. Pilkinton, Judge.

This appeal is from a conviction for aggravated robbery, a violation of Ark. Stat. Ann. § 41-2102 (Repl. 1977). Punishment was assessed at five years imprisonment.

On May 12, 1979, following trial, a jury returned a verdict finding both apellants guilty and recommending that each be sentenced to three years in the state penitentiary. After the verdict was read and the jury polled, the court discharged the jury and scheduled formal sentencing for May 14, 1979. On that day, the court acting on the jury verdict found both defendants guilty of aggravated robbery. Noting that the jury had fixed the sentences at three years for each defendant, the court stated that five years is the minimum sentence for aggravated robbery. The court then sentenced both defendants to five years, but stated that, in deference to the jury’s recommendation, he would suspend two years of each sentence. From this conviction and sentence appellants have appealed.

Although phrased differently by appellants, the sole ground for error is the contention that the trial court erred in sentencing appellants to five years. They argue that the sentence imposed, greater than fixed by the jury, violated their rights to protection under the double jeopardy clause of the constitution.

Although Ark. Stat. Ann. § 41-2102 was amended by Act 1118 of 1979, appellants were found guilty under Act 280 of 1975, codified in 1977 Replacement to Vol. 4, Ark. Stats. That act specified aggravated robbery to be a class “A” felony. Ark. Stat. Ann. § 41-901(1)(a) (Repl. 1977) provides that a person convicted of a class “A” felony may be sentenced to a term of imprisonment not less than five years nor more than fifty years, or to life imprisonment. Although the trial court’s instructions to the jury included the correct range of punishment, the jury after finding the defendants guilty erroneously fixed their punishment at three years each, or less than the authorized statutory minimum.

Since the trial court was not authorized to impose a three year sentence in this instance, the court properly followed the provisions of Ark. Stat. Ann. § 43-2309 (Repl. 1977) which provides:

If the jury, in any case, assess a punishment, whether fine or imprisonment, below the limit prescribed by law for the offense of which the defendant is convicted, the court shall render judgment, and pronounce sentence, according to the lowest limit prescribed by law in such cases.

The fact that the punishment of five years, being the minimum authorized by statute, exceeds the unauthorized punishment of three years does not present a double jeopardy problem, as appellants claim. See Bozza v. United States, 330 U.S. 160 (1947), United States v. Scott, 502 F. 2d 1102 (1974). The Arkansas courts distinguish constitutionally valid modifications of judgments which do not place the defendant in double jeopardy from others that do, and make a distinction between an unexecuted and executed sentence or judgment. See Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005 (1926).

We have carefully considered all cases cited by appellants, including Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970), on which appellants heavily rely, and find them not in point with the case before us.

The judgment is affirmed.

       Under court rules for the federal system “[t]he sentencing court may correct an illegal sentence at any time ...” Bozza v. United States, supra.


author: Marian F. Penix, Judge.

text:
    George BRADSHAW v. Charles L. DANIELS, Director of Labor
    CA 79-315
    595 S.W. 2d 254
    Court of Appeals of Arkansas
    Opinion delivered February 27, 1980
    Released for publication March 19, 1980
    Appellant, pro se.

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

Claimant applied for benefits from Adjustment Assistance for Workers as provided under the Trade Act of 1974 (Public Law 93-618). Claimant had been employed nearly 15 years at Mohawk Rubber Company Plant at West Helena, Arkansas. His last day to be employed at Mohawk was June 6, 1979. Claimant applied for benefits and received one Trade Readjustment Allowance (TRA) check in the amount of $237.00.

The Trade Act of 1974 (Public Law 93-618) provides in Section 234, APPLICATION OF STATE LAWS:

Except where inconsistent with the provisions of this chapter and subject to such regulations as the Secretary may prescribe, the availability and disqualification provisions of the State Law—
(1) under which an adversely affected worker is entitled to unemployment insurance (whether or not he has filed a claim for such insurance), or
(2) if he is not so entitled to unemployment insurance, of the State in which he was totally or partially separated, shall apply to any worker who files a claim for trade readjustment allowances . . .

This Public Law 93-618 provides that in determining an adversely affected worker’s rights to TRA, the State agency will apply the availability and disqualification provisions of the paying State’s Law.

Claimant’s worksheet statement dated June 29 stated:
I am presently self-employed in a refrigeration business. This business has been in operation for about two years. So far it has not been a profitable business as expenses have exceeded income from the business. I have not been spending any time in the operation of this business as my two sons, one is 23 years of age and one is 20 years of age, do all the work and operate the business by themselves. Because of this, I am available for any suitable, full-time permanent work. During the time this refrigeration business has been in operation Ihave worked full time in the Mohawk Rubber Company Plant. I will take any full-time permanent job, if offered, if the rate of pay is comparable to the wages I received at Mohawk Rubber.
Signed, George Bradshaw

The Agency determined claimant was not eligible to receive unemployment benefits nor was he eligible to receive benefits from TRA. The decision reads “You are self-employed in the refrigeration business and have been for two years. You are actively engaged in business. Decision: Not eligible beginning June 12.”

Claimant appealed the Agency decision. The notice of his hearing before the Appeals Referee stated the issue to be determined was whether the claimant was available and actively seeking employment.

In claimant’s testimony before the Appeals Referee he stated he had an opportunity to buy a heating and air-conditioning-refrigeration business out over two years ago. He further stated he had to put up his home, had received a small loan, had incorporated with his sons, and had been helping them when he could. He testified he had not received any payment whatsoever out of his business. Claimant introduced an Employer’s Quarterly Contribution Wage Report for the business with several people’s names, but the claimant’s name was not among those listed.

The claimant testified he had talked to one person about a job, but the rate of pay was $3.25 per hour so he didn’t apply. He also stated his brother in Beaumont, Texas was supposed to be getting him some job applications from plants in Texas, but he had not received them.

The Appeals Tribunal found the claimant to be ineligible for TRA under Section 4(c) of the Arkansas Employment Security Law. The Tribunal determined the claimant was not available for work nor doing those things a reasonably prudent individual would be expected to do to secure work under the provisions of Section 4(c).

On appeal to the Board of Review the Board adopted the Tribunal’s decision and held it to be correct as to findings of fact and conclusions of law. The Agency’s Overpayment Determination was held to be correct under Section 6(f)(2) of the Arkansas Employment Security Law. Section 6(f)(2) provides:

If the Commissioner finds that any person has received any amount as benefits under this Act to which he was not entitled by reasons other than fraud, willful misrepresentation, or willful non-disclosure of facts, such person shall be liable to repay such amount to the Fund or in lieu of requiring the repayment, the Commissioner may recover such amount by deduction from any future benefits payable to such person under this Act unless the Commissioner finds that the overpayment was received without fault on the part of the recipient and its recovery would be against equity and good conscience

After a careful review of the record we find there is substantial evidence upon which the Appeals Tribunal decision was made and affirmed by the Board of Review. Terry Dairy Products Co., Inc. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955).

Affirmed.


author: George Howard, Jr., Judge.

text:
    CHAMPION PARTS REBUILDERS, INC. v. ARKANSAS DEPARTMENT OF LABOR, Charles L. DANIELS, Director and Jay WHITNEY
    CA 79-208
    594 S.W. 2d 868
    Court of Appeals of Arkansas
    Opinion delivered February 27, 1980
    Released for publication March 19, 1980

      James H. Pilkinton, Jr., for appellant.

      Thelma M. Lorenzo, for appellees.
   George Howard, Jr., Judge.

Jay Whitney was dismissed from his job on May 11, 1979, by appellant on the grounds that he was causing dissension among the employees by criticizing appellant’s vacation policy. The reason asserted for Whitney’s termination was characterized as inefficiency.

Whitney filed a grievance with his union on May 14th. A hearing was conducted on May 17th. During the hearing, appellant agreed to rescind Whitney’s termination and pay him for the days that he lost. However, at Whitney’s request, appellant authorized him to take off two additional days in order to attend to some personal matters. It was understood, however, that Whitney would report for work on May 21st. Whitney did not report for work as he had agreed. On June 1, 1979, Whitney filed for unemployment benefits stating that he had last worked for appellant on May 11th and was discharged without cause.

Appellant resisted the claim asserting that while Whitney was discharged initially for misconduct within the meaning of Section 5(b)(1) of the Employment Security Law — for misconduct in connection with his work — appellant rescinded the dismissal and Whitney agreed to return to work on May 21st; that Whitney failed and refused to resume his status as an employee and, consequently, Whitney is disqualified under Section 5(c)(2) for refusing available and suitable work.

The local agency held that Whitney was not guilty of any misconduct within the meaning of Employment Security Law 5(b)(1) — for misconduct in connection with his work — the ground which appellant asserted initially for terminating Whitney from his employment.

The appellant appealed to the Appeals Tribunal and argued that Whitney was disqualified because of his failure to accept suitable employment.

The Referee in stating the scope of the hearing, at the outset, stated:

“The primary issue involved is to determine if claimant was discharged from his last work for misconduct in connection with the work within the meaning of Section 5(b)(1) of the Arkansas Employment Security Law.”

When appellant offered to establish its contention that appellee had failed to accept offered employment, the Referee said:

“Of course, the primary issue here today is was he fired and if so why. Whether he was subsequently offered rehire is really another issue, ...”

At another point during the hearing, the Referee observed:

“Ms. Fowler (representative of appellant), we’ve got two issues here today really, and we’ve only got one issue and second issue may arise subsequently. ... the other issue of being recalled to work is not something we’re going into today. That would be another, the Agency here would have to determine whether or not he refused an offer of work without good cause. ...”

While there is some evidence in the record to the effect that appellant offered to rehire Whitney without any conditions attached, Whitney testified to the contrary and further emphasized that he did not return to work, as he had agreed, because he was given additional work to perform. Appellant was not afforded the opportunity to fully develop its claim that Whitney had refused to accept available employment.

We are persuaded that all matters pertaining to Whitney’s discharge and the purported offer and acceptance of his reinstatement should have been dealt with in this proceeding. The impracticality of disposing of issues on a piecemeal basis, when all parties are before the agency and all issues stem from the same facts and circumstances, is clear and beyond debate. The speedy resolution of all issues involving employment security, as in the instant case, not only conserves time and expense for all concerned and, in addition, relieves claimant and his family of inconvenience and hardship, but facilitates the economical use of the administrative machinery.

The notice of hearing to Whitney dated July 19, 1979, from the Appeals Tribunal made the following relevant observation:

“You are notified that the hearing may involve any question having a bearing on the claimant’s right to benefits up to the time of the hearing. . . . (Emphasis supplied)

Accordingly, we reverse and remand this proceeding with directions to afford both parties an opportunity to fully develop the facts and circumstances involving the discharge and the purported offer and acceptance of rehire.

Reversed and remanded.

Pilkinton, J., not participating.


text:
    McClelland BYRUM, Employee v. HUGHES BROTHERS CONSTRUCTION COMPANY, Employer; ARKANSAS FARM BUREAU INSURANCE COMPANY, Insurance Carrier
    CA 79-285
    595 S.W. 2d 699
    Court of Appeals of Arkansas
    Opinion delivered February 27, 1980
    Petition for review denied March 24, 1980
    Petition for rehearing denied March 26, 1980
    Released for publication March 26, 1980

      Kent L. Tharel, for appellant.

      Davis, Bassett, Cox & Wright, by: W W. Bassett, Jr., for appellees.
   George Howard, Jr., Judge.

We are to decide whether the Workers’ Compensation Commission committed reversible error in finding that appellant’s total disability ended February 28, 1978.

It is settled law that an appellate court will affirm the Commission where there is substantial evidence to support its findings. Stout Construction Co. v. Wells, 214 Ark. 741, 217 S.W. 2d 841 (1949); Clark v. Shiloh Tank and Erection Company et al, 259 Ark. 521, 534 S.W. 2d 240 (1976). Moreover, in evaluating the evidence, the appellate court will interpret it in the light most favorable to the Commission’s findings. Superior Improvement Co. v. Hignight, 254 Ark. 328, 493 S.W. 2d 424 (1973). On disputed questions of fact, the appellate court will not set aside the Commission’s findings even though the evidence would support a different result, where it is plain that reasonable minds would reach the conclusion reached by the Commission. McCollum v. Rogers, 238 Ark. 499, 382 S.W. 2d 892 (1964); Oaklawn Farms v. Payne, 251 Ark. 674, 474 S.W. 2d 408 (1971).

Appellant, who had been previously employed as a farm laborer for twenty years, began working for Hughes Brothers Construction Company on August 1, 1977, as a laborer. His duties consisted, among other things, of setting up forms for concrete floors, pouring and finishing concrete.

On October 20, 1977, appellant developed a rash over his hands, arms, neck, scalp, and the trunk of his body. This rash caused appellant great discomfort and he purportedly itched constantly. As a consequence, appellant took a week off from his job. On December 19, 1977, appellant stopped work entirely.

On December 20, 1977, appellant consulted Dr. Spencer D. Albright who characterized appellant’s condition as “inflammatory dermatitis.” Appellant was given a prescription for medication. Appellant failed to return for a follow-up, as suggested by his doctor, and was not seen again by Dr. Albright until February 14, 1978. However, appellant consulted approximately four other doctors, including Dr. John Darrell Ginger, who stated that it was his impression that appellant had “inflammation of the hair follicle” on his face and neck. In a medical report dated February 29, 1978, adressed to Dr. Robert H. McCollum, who referred appellant to him, Dr. Ginger stated “He is to return to see me in ten days and I also recommended that the patient could return to work.”

Two of appellant’s lay witnesses, Bobby Waits and Leo Orsborn, testified that since appellant developed his skin condition, appellant has performed odd jobs for them; that appellant had hauled hay to be stored in a barn and had constructed a concrete foundation for a septic tank; that following the completion of the septic tank job, appellant developed a rash over his body.

Appellant testified that Dr. Ginger had instructed him to quit drinking alcoholic beverages; and that alcoholic beverages might be a factor in his dermatitis.

Darrell Hughes, an in-law of appellant, testified that appellant told him that Dr. Ginger had said that appellant’s condition was “probably caused from my drinking whiskey”; and that appellant concluded “I’ve been drinking for forty (40) years and I am not gonna give it up now.”

Darrell Hughes also testified that between August, 1977, and December, 1977, appellant made improvements to his personal dwelling which consisted of the installation of rock necessitating the use of cement.

Appellant admitted that he had performed odd jobs over the past two years since his departure from the construction job with Hughes Brothers Construction Company, including concrete work for Bobby Waits.

Vorelda Byrum, mother of appellant, testified:
Q. Now, Ms. Byrum, are you aware of any instance or period of time, back before Mac went to work for the Hughes Brothers, that he had this same condition?
A. No, he’s never had this before. Like this.
Q. Has he ever had anything similar to it?
A. He’s never been broke out with anything; only about fourteen (14) or fifteen (15) years ago he was broke out with tomato rash when he was picking tomatoes. When he quit picking tomatoes, it dried up.

It is clear from the medical reports that appellant is allergic to chrome and cobalt which are ingredients in cement and other construction materials; and that appellant was advised that he could return to work on February 28, 1978.

We are persuaded that the Commission’s holding is supported by substantial evidence and, accordingly, we affirm.

Affirmed.


author: David Newbern, Judge.

text:
    JOHNSON & JOHNSON, d/b/a CHICKOPEE MFG. CO. and Ralph THOMPKINS v. FIRST NATIONAL BANK IN LITTLE ROCK, Guardian of the Estate of Eli ESAU and NORTHWESTERN NATIONAL INSURANCE COMPANY
    CA 79-215
    594 S.W. 2d 870
    Court of Appeals of Arkansas
    Opinion delivered February 27, 1980
    Released for publication March 19, 1980

      Friday, Eldredge & Clark, for appellants.

      Haskins & Wilson, by: Gary Eubanks & Associates and Dan F. Bufford, of Laser, Sharp, Haley, Young & Huckabay, P.A. for appellees.
   David Newbern, Judge.

The circuit judge granted a new trial on the ground that a jury verdict for the defendants-appellants was rendered after the case had been removed to a federal court. We hold that it was at the urging of and in response to a motion by the appellees that the action of which they complained in a “mistrial” motion, occurred. The appellees were thus estopped from contending the trial judge erred. The ground for new trial asserted by the judge thus fails, and a new trial should not have been granted.

A second issue arises from appellees’ contention on cross appeal that the judge erred in failing to instruct on ultrahazardous activity. We find no merit in that contention, as we find insufficient evidence was produced to go to a jury, given our supreme court’s definition of ultrahazardous activity.

Eli Esau was standing on a ladder while working on a ■fence outside appellant Chicopee’s industrial plant premises. Some CS2 gas was allowed to escape from the plant into a sewer line. An explosion occurred, and Esau was injured in a fall from the ladder.

Esau’s guardian sued Chickopee, which is a nonresident defendant, and Chickopee’s plant manager, Ralph Thompkins, an Arkansas citizen, alleging negligence in handling and failing properly to store dangerous gases. Thompkins’ status as a defendant prevented complete diversity of citizenship between the plaintiffs and the defendants.

At the end of the trial, but before the case went to the jury, the appellees took a voluntary nonsuit as to Thompkins thus making diversity of citizenship complete and making the case removable to the federal court. See, 28 USCA § 1332 (1966) and 28 USCA § 1441 (1973).

Immediately upon learning of the nonsuit, the appellants notified the court and the appellees of their intent to remove to the federal court. A petition for removal was filed in a U.S. district court. A copy of the removal petition was filed with the circuit court on June 19, 1978, the last day of the trial.

Just after the appellants proposed to remove, and apparently before the removal petition was formally filed, the appellees moved to reinstate Mr. Thompkins as a party. The judge reinstated Thompkins. The jury returned a verdict for the defendants-appellants.

After the jury verdict, the appellees filed in the. U.S. district court a response to the removal petition in which the appellees agreed the case had been properly removed. Then the appellees filed, in the U.S. district court, a motion for a mistrial. The U.S. district court remanded the case to the circuit court because, whether properly or not, the state court had reinstated the Arkansas citizen as a defendant before the petition for removal was filed with the U.S. district court. The circuit court thus had before it a nonremovable case when the removal petition ultimately was filed with the U.S. district court.

The circuit court then realized he had erred in reinstating a defendant as to whom a nonsuit had been taken and ordered a new trial. The appellants, in whose favor the jury verdict was rendered, appeal the new trial order.

I. The New Trial Order

These complicated facts could have led us into the murky bog created by mixing federal and state jurisdiction. Fortunately, we need not risk that immersion. The problem here was created when the appellees moved to reinstate Mr. Thompkins. According to the trial judge’s letter to counsel, the ground upon which he ordered the new trial was specifically and solely the error which occurred when he honored that request. In their mistrial motion the appellees asserted the case was properly removed and everything that transpired in the state court thereafter was void.

As it was the motion of the appellees to reinstate Mr. Thompkins that caused the court to do so and instigated the continuation of the trial resulting in the jury verdict, we hold the appellees are estopped from complaining of the state court’s jurisdiction in this matter. Barber v. State, 248 Ark. 64, 450 S.W. 2d 291 (1970); Ford Motor Co. v. Tritt, 244 Ark. 890A, 430 S.W. 2d 778 (1968). As the appellees’ ground for complaining fails due to this estoppel, we hold it was error for the trial court to grant a new trial.

II. Ultrahazardous Activity

The cross-appeal of the appellees contends the court erred in refusing to instruct on ultrahazardous activity and the theory of strict liability. The appellants contend no evidence was offered from which a jury could have concluded the use and storage of CS2 was an ultrahazardous activity. The evidence showed an employee of Chickopee inadvertently allowed the gas to escape into a storm sewer where it exploded.

The definition of ultrahazardous activity which has been used by our supreme court is found in Zero Wholesale Gas v. Stroud, 264 Ark. 27, 571 S.W. 2d 74 (1978).

[A]n activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person or chattels of others which cannot be eliminated by the exercise of the utmost care and (b) is not a matter of common usage. [264 Ark. at 31, emphasis in original.]

In the Zero case, the activity of transferring propane gas was held to have been an ultrahazardous activity. The court said it could not say the delivery of propane “does not involve a risk of serious injury . . * which cannot be eliminated by the exercise of ordinary care.” (264 Ark. at 31) The court found no evidence the risk could be eliminated by exercise of the “utmost care.”

The substance of the testimony of an expert for the appellees in the case before us was that the gas is dangerous and very uncommon, although he listed types of manufacture in which it is used. The supreme court in the Zero case found no evidence to show delivery of propane was a matter of “common usage,” despite the fact the appellant there had argued (and presumably shown) the use of the gas was common. (See supplemental opinion on denial of rehearing, 264 Ark. 34.)

We do not believe the appellees produced evidence below sufficiently tending to show that CS2 is a gas so inherently dangerous that the utmost care would not prevent risk. Although an expert witness called by the appellees used the term “ultrahazardous” in referring to the gas, he did not say the risk could not be eliminated even though the utmost care was used. He did say a risk would be involved no matter what degree of care was used, but we find no foundation in his testimony for that statement. Certainly he did not in any way support his conclusion that serious bodily harm or injury to chattels was an unavoidable risk by referring to any ex-ampies where either had occurred. Even if it could be said that this seemingly unsupported opinion about the real danger in using CS2 were sufficient to take the question to the jury, however, we find the second part of the definition unsatisfied here.

CS2 may be an uncommon gas, but we believe it more important that it be uncommon for industrial operations to store and use potentially dangerous gases in pipes in factories in industrial areas. There has been no showing that such an activity is uncommon. We believe that, in adopting the second part of the definition of ultrahazardous activity, our supreme court had in mind one of the elements of ultrahazardous activity theory as it developed in England, i.e., that the activity is more likely to result in strict liability if it is both very dangerous and out of place, that is, uncommon in the circumstances in which it causes injury. The familiar example is the blasting which takes place in the center of a city as opposed to a desolate mountainside. See, Prosser, Torts, p. 514 (4th ed. 1971).

We see no evidence here that the use or storage of CS2 was inappropriate to the place the plant was located or other surrounding circumstances. Clearly the appellants could have been found negligent in allowing the gas to escape, but they were not. We hold, however, the appellees did not raise a jury question on the ultrahazardous activity theory.

Reversed and remanded for entry of a judgment based on the jury’s verdict.


text:
    OWENS COUNTRY SAUSAGE and EMPLOYERS’ CASUALTY COMPANY v. Gary CRANE
    CA 79-294
    594 S.W. 2d 872
    Court of Appeals of Arkansas
    Opinion delivered February 27, 1980
    Released for publication March 19, 1980

      William L. Peek, Jr., of Hubbard, Patton, Peek, Haltom & Roberts, for appellants.

      Southern & James, by: Byron S. Southern, for appellee.
   David Newbern, Judge.

This workers’ compensation appeal presents two main questions. The first is whether there is substantial evidence to support the commission’s finding that an award of the costs of a rehabilitation program are reasonable. We hold there was. Secondly, we must decide whether a claimant who appeals an administrative law judge’s decision to the commission and who loses on his appeal but wins on the cross-appeal of the respondents should be regarded as having “prevailed” on appeal and be thus entitled to an attorney’s fee as provided in Ark. Stat. Ann. § 81-1332 (Supp. 1979). We hold he should.

The appellant sustained a compensable injury while driving a delivery truck for the appellee, Owens Country Sausage. The administrative law judge found 5% anatomical impairment and awarded temporary total disability payments, and payments for partial disability and permanent disability to the body as a whole at 5%. The judge found that a finding of “overall permanent disability” would be premature, as the appellee was a rehabilitation candidate. The judge suggested at the end of his conclusions that without rehabilitation, the appellee might be entitled to an additional 5 to 10% permanent disability.

The appellee had been a part time professional pilot. As his rehabilitation program, he proposed he be allowed to take instruction leading to three additional pilot ratings which would improve his income prospects in that field. The administrative law judge’s award as affirmed by the commission was that the appellants would be responsible for the cost of one such rating, i.e., “Instrument Rating — Airplane” to be obtained at a Dallas, Texas, flight school.

In his appeal to the full commission, Mr. Crane urged he should be entitled to all of the rehabilitation program he had proposed, and that he was permanently disabled to the extent of 10% and that dates of his temporary total and temporary partial disability as found by the judge should be adjusted. The respondents appealed certain aspects of the award with respect to the temporary benefits, one of the medical payments, the permanent disability finding and the rehabilitation award. The commission affirmed the award in its entirety, and in a supplemental opinion awarded the claimant’s attorney a $100 fee for the appeal.

1. Rehabilitation

At the outset, we should dispose of the suggestion of the appellants that the appellee should not be allowed an award of benefits for permanent disability and a rehabilitation program as well. No authority is cited for that contention, and it is directly contrary to the language of Ark. Stat. Ann. § 81-1310(f) (Supp. 1979), which says rehabilitation benefits are to be in addition to other benefits provided by the Act.

The evidence showed the appellee was earning $275 per week at his job with Owens. Since the accident, and up to the time of the hearing, he had been earning an average of $135.30 per week as a pilot and flying instructor. Based on the testimony of the appellee’s present employer, an instrument rating would permit the appellee to earn as much as he had been earning with Owens, or more.

Ark. Stat. Ann. § 81-1310 (f) permits an award of the costs of a rehabilitation program which is “reasonable in relation to the disabilities sustained by [the] employee.” Given the commission’s findings based on the evidence of the salary discrepancy and the prospect of improvement, we cannot say there is a lack of substantial evidence that this program is reasonable.

II. Attorney’s Fee

Ark. Stat. Ann. § 81-1332 says, in part:

In addition to the fees herein provided, if the claimant prevails on appeal, the attorney for the claimant shall be entitled to an additional fee at the full Commission and appellate court levels, such additional fee to be paid by the employer or carrier, and such fee to be set by the Commission and/or appellate court. The maximum fees allowable hereunder shall be the sum of one hundred dollars ($100) on appeals to the full Commission from a decision of an administrative law judge, and until July 1, 1979, the sum of two hundred and fifty dollars ($250.00) on appeals to the Arkansas Supreme Court from a decision of the Commission, and beginning July 1, 1979, the sum of two hundred and fifty dollars ($250.00) on appeals to the Arkansas Court of Appeals from a decision of the Commission. In determining the amount of fees, the Court shall take into consideration the nature, length, and complexity of the services performed, and the benefits resulting therefrom to the compensation, beneficiary.

The appellants’ contention is that, as neither party “prevailed” on appeal to the commission, it should not have awarded the maximum $100 attorney’s fee to the appellee. It could just as well be said that both parties prevailed before the commission, as the appellee won on the cross-appeal and the appellants won on the direct appeal.

We choose to characterize this case as one where the claimant prevailed, as workers’ compensation statutes should be interpreted liberally in favor of the claimant. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480 (1976); Mohawk Rubber Co. v. Buford, 259 Ark. 614, 535 S.W. 2d 819 (1976).

We note the commission did not bother to justify the $100 award in its supplemental opinion. Rather than send the case back for justification, we have looked into the record and found evidence that the appellee’s attorney’s efforts warranted the fee. We do not propose to do that in every case, however, and we suggest the commission heed Chief Justice Harris’ admonition in Aluminum Co. of America v. Wilson, 262 Ark. 602, 559 S.W. 2d 710 (1978), that “the commission should set out the basis for any . allowance made.” (262 Ark. at 609)

In view of the brief filed on this appeal, an additional fee of $200 is allowed to the appellee’s attorney.

Affirmed.


author: M. Steele Hays, Judge.

text:
    Johnny TUCKER v. Hollis SCARBROUGH and SCARBROUGH FORD, INC.
    CA 79-43
    596 S.W. 2d 4
    Court of Appeals of Arkansas
    Opinion delivered March 5, 1980
    Released for publication March 26, 1980

      Hubert L. Burch, for appellant.

      Elrod, Elrod, Elrod & Lee, by: John R. Elrod, for appellees.
   M. Steele Hays, Judge.

Appellant filed this action below for conversion of a dump truck which he had purchased from appellees on credit. Appellees assigned the conditional sales contract to the First National Bank at Siloam Springs, and guaranteed payment to the bank in the event of appellant’s default. Monthly installments were made irregularly from the purchase in May, 1973 to September 30, 1974, when the truck was repossessed by appellee, Hollis Scarbrough. Appellant contends that the taking of the vehicle was a willful and intentional conversion entitling him to punitive damages, lost profits and the value of the truck. The cause was tried to a jury and a verdict on behalf of the defendant-appellees was returned.

On appeal, appellant assigns three points for reversal: I. The trial court erred in directing a verdict on the issue of punitive damages; II. the evidence was insufficient to support a finding of consent by the appellant to the taking by the appellee; and III. the evidence was sufficient to support a finding that the appellees had assigned the security agreement to the bank and were not a secured party with the right to repossess.

I.

We find nothing in the record creating a submissible issue on punitive damages, even when the appellant’s evidence is viewed in the most favorable light possible. It is undisputed that appellant was in default under the contract and the testimony on behalf of appellant with respect to the events of the repossession provides nothing in the way of conduct by the appellee, Hollis Scarbrough, which should be exemplified by an award of punitive damages. We hold that the trial court was correct on this evidence to refuse to submit the issue to the jury. As was said in Miller v. Blanton, 213 Ark. 246, “before punitive damages may be awarded it must, in the absence of proof of malice or willfulness, be shown that there was on the part of the tortfeasor a wanton disregard of the rights and safety of others.” Texarkana Gas & Electric Co. v. Orr, 59 Ark. 215. Appellant argues that he was in the hospital and unable to protect his interest in the collateral; but that circumstance does not, in and of itself, give a basis for punitive damages, where a debtor is admittedly in default.

II.

Appellant urges that the evidence to support a finding that appellant consented to the taking by the appellee, Hollis Scarbrough, is insufficient as a matter of law. We agree that whether substantial evidence to support a finding exists is a question of law on appeal (St. Mary’s Hospital v. Bynum, 264 Ark. 691), however, we find the argument to be without merit, as the record contains evidence, both direct and circumstantial, supporting the verdict of the jury with respect to this issue. Hollis Scarbrough testified that he spoke with appellant by telephone with Leister Smith on one extension and that he, Scarbrough, assured appellant that the truck would be held to give appellant the opportunity to refinance — he stated that appellant’s uncle advised appellant to let Scarbrough have the truck on that assurance and appellant agreed. The record has other evidences corroborating appellee’s account of the event, but his testimony alone provides substantial evidence that the taking by appellees was not wrongful but was, in fact, consented to.

III.

Finally, appellant argues that “the evidence was sufficient to support a finding that there had been an assignment of the financial statement and security agreement to the bank and therefore that the appellee was not a secured party with the right to repossess upon default within the meaning of Ark. Stat. Ann. § 85-9-503.”

Whether the evidence was sufficient to support a finding contrary to the verdict reached does not meet the requirements of the rule on appellate review, which requires that evidence be insufficient to support the findings of the jury.

There is reasonable likelihood that the verdict of the jury on the issue of consent obviates consideration of the issue of whether substantial evidence was offered on either side of this point of error; however, no instructions are provided in the abstract and we are unable to determine how the jury was instructed on the submission of this issue.

Rather, we prefer to treat this assignment of error as being that the appellee had no right of repossession as a matter of law for the reason that appellee had not paid off appellant’s note.

It is undisputed that appellee had not paid off the bank, or any part of the balance due at the time of taking, although there was testimony that the bank was looking to appellee as guarantor for payment, rather than to the appellant.

Appellant’s argument on this point rests upon the theory that before a guarantor is subrogated to the rights of a creditor to repossess the collateral against a debtor in default, the guarantor must pay off the indebtedness in full or in part. Appellant cites Moon Realty Co. v. Arkansas Real Estate Corp., 262 Ark. 703; Norton v. National Bank of Commerce, 240 Ark. 143; Farmers Acceptance Corp. v. DeLozier, 178 Colo. 291, 496 P. 2d 1016, and attempts to distinguish Benschoter v. First National Bank of Lawrence, 218 Kan. 144, 542 P.2d 1042.

The Norton case, while presenting a credit transaction similar to the one before us, is clearly distinguishable in that there the controversy was between the guarantor, Norton, and the creditor, National Bank of Commerce, the debtor having no interest in the litigation. The court held that the guarantor was a debtor within the terms of Ark. Stat. Ann. § 85-9-504(3) and, therefore, entitled to notice that the bank was about to sell the repossessed vehicle at a private sale in order to protect himself under the guarantee. That is not the issue here.

Nor does the decision in Moon, supra, provide precedent for appellant, although Moon does contain dictum that one seeking subrogation must pay the obligation in full; however, that was not before the court as the party seeking subrogation in Moon had elected prior to the litigation to pay the obligation in full. It would not, we think, be judicious or logical to rely on Moon in deciding the issue here presented. Other dictum in Moon recognizes the equitable dimensions of the principle of subrogation to achieve a just end:

“Further, the doctrine of subrogation is administered not as a legal right, but to do equity in the particular case before the Court. Federal Land Bank of St. Louis v. Richland Farming Co., 180 Ark. 442, 21 S.W. 2d 954 (1929).”

The DeLozier case, supra, is cited simply for the general rule, not here disputed, that an assignee of contract rights stands in the shoes of the assignor and has no greater rights against the debtor than did the assignor.

We agree, decidedly, with appellee that there is no logical reason why a debtor in default should have standing to raise the argument that the guarantor must pay the indebtedness to the principal creditor before the guarantor can claim the right of subrogation where the creditor is looking to the guarantor rather than to the debtor.

This may not have been squarely decided in this jurisdiction but it has the weight of logic where the facts are as in the record before us and the only dispute is between the debtor and the guarantor. This result is supported by sound reasoning in Benschoter v. First National Bank of Lawrence, 218 Kan. 144, 542 P. 2d 1042 (1975), and in Mountain Iron & Supply Co. v. Jones, 201 Kan. 401, 441 P. 2d 795 (1968), although in Benschoter a partial payment against the debt had been made by the guarantor. This outcome reposes well with the equitable nature of subrogation to achieve a just and worthwhile end, depending on circumstances of a given case. Baker v. Leigh, 238 Ark. 918. Thus, we conclude that appellee was a “secured party” within the definition of Ark. Stat. Ann. § 85-9-504(5).

Affirmed.


text:
    James Arvel RALLS, Noal MEDFORD, Jr., Gerald BAKER and J. D. PRIDDY v. Martin MITTLESTEADT and Edna Mae MITTLESTEADT
    CA 79-44
    596 S.W. 2d 349
    Court of Appeals of Arkansas
    Opinion delivered March 5, 1980
    Petition for rehearing denied April 9, 1980
    Released for publication April 9, 1980

      Thomas B. Keys and Ted Goodloe, for appellants.

      Matthews & Sanders, by: Roy Gene Sanders, for appellees.
   James H. Pilkinton, Judge.

The question to be resolved in this case is whether a state employee, while acting within the scope of his employment, can be held personally responsible for his negligence occurring upon a highway.

Appellants were the defendants in the court below and were sued for negligence. This action arose out of a traffic collision involving a vehicle owned by Martin Mittlesteadt and driven by Edna Mittlesteadt, the appellees. At the time of the occurrence appellants were part of a crew engaged in the repair of Arkansas State Highway Number 88 in Polk County, Arkansas. On April 23, 1976, Edna Mittlesteadt was driving the Mittlesteadt vehicle in a westerly direction on Highway 88 at a point approximately 3.3 miles east of Mena when a dump truck suddenly backed from the shoulder of the road into her path of travel. According to the investigating officer, the impact occurred in the middle of the highway. The officer took a statement from the driver of the dump truck, James Ralls, in which Mr. Ralls stated that he was backing onto the highway to turn around and could not see the road from his position. He asked his passenger, Mr. Noal Med-ford, to check the traffic for him. Mr. Medford, in effect, told the officer that he checked for traffic and did not see any so he told Mr. Ralls to go ahead and back onto the highway. It was admitted that no flagman was present on the highway giving warning to oncoming traffic. It was also admitted that it was the responsibility of the team leader, Mr. Gerald Baker, to make sure a flagman was in position. The appellants claim damages to their motor vehicle of $1,113.68 and $61.00 in medical expenses incurred by Edna Mittlesteadt. Upon a trial to a jury, judgment , in the amount of $1,174.68 was entered on behalf of appellees and against appellants. After the entry of the judgment, appellants filed a motion for a new trial which was overruled by the trial cpurt. From the judgment aforesaid and from the order overruling the motion for a new trial comes this appeal.

I.

The appellants first argue that the trial court was without jurisdiction. They contend that this suit was against the state of Arkansas and constituted a matter which should be filed in the State Claims Commission. Article 5, Section 20 of the Arkansas Constitution only grants immunity to the state itself, not to employees of the state. The case at bar was filed against the appellants as individuals and does not attempt to subject the state to any liability whatsoever. We agree with appellants that the question of whether a particular law suit is one against the state need not be determined solely by reference to the nominal parties to the record. Appellants are also correct in their contention that the mere fact the state is not named as a party defendant does not conclusively establish that the suit is not within the rule prohibiting suits against a sovereign without its consent. The test for determining whether a suit is one against the state was established by the Arkansas Supreme Court in Page v. McKinley, 196 Ark. 331, 118 S.W. 2d 235 (1938). There the court said that where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability, the state, while not a party of the record, is the real party against which relief is sought, so that a judgment for plaintiff, though nominally against the defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect a “suit against the state” and cannot be maintained without state consent. See also Wilson v. Pinkert, 210 Ark. 1093, 198 S.W. 2d 723 (1947); and 81A C.J.S. States, Section 304.

Unless the suit will operate in some way to control the action of the state, or subject it to liability, then it is not a suit against the state. The appellees brought this case only to subject the appellants to personal liability for their own negligence. When the dump truck was backed onto the highway into the path of appellees’ vehicle, an act occurred which was a violation of state traffic laws. Neither the Arkansas Highway Department nor anyone else has the authority to allow its employees to violate the law without being responsible for the consequences. The exemption of the state from judicial process does not protect its officers and agents from being personally liable to an action of tort brought by a private person whose rights of property they have wrongfully invaded or injured. Kelly v. Wood, 265 Ark. 337, 578 S.W. 2d 566 (1979). We are persuaded that the case at bar is clearly not a suit against the state, and is controlled by Kelly v. Wood, supra. See also Ross v. Rich, 210 Ark. 74, 194 S.W. 2d 297 (1946).

This suit does not attempt to subject the State of Arkansas to any liability or to control state action in any way. It is elementary agency law that the liability of a principal for his agent’s act does not absolve the agent. Burl v. Missouri Pac. R. Co., 294 F. 911 (E.D. Ark. 1924), Sell, Law of Agency, §§ 195 and 198 (1975), and Mechem, Law of Agency, §§ 1455 and 1456 (1914). See also Gilbow et al v. Andrews, 267 Ark. 814, 590 S.W. 2d 673 (Ark. App. 1979). We hold that the Circuit Court did have jurisdiction of this case and we find no merit in the argument of appellants on this point.

II.

Appellants next argue that the trial court erred in refusing to give defendants’ requested jury instruction No. 2 (AMI 702) and requested No. 3 (AMI 701) without stating the basis of the court’s refusal. Complaint is also made of the court’s refusal to give appellants’ requested instruction 4 and 5.

Here appellants were each sued in their individual capacity. There was no need for the jury to have been instructed on Scope of Employment (AMI 702) or the definition of employee (AMI 701) as the jury was not deciding any issue which called for these particular instructions. This lawsuit did not attempt to impute appellants’ conduct to their employer. Thus the offered instructions 2 and 3 had no relevance whatsoever to the issues of this case. It was not necessary, therefore, for the court to state for the record its reasons for refusing to give AMI 701 and 702. The only time the trial judge must state his reasons for not giving an AMI instruction is when such judge determines an offered AMI instruction does not accurately state the law applicable to the issue being tried. There is no question here that AMI 701 and 702 were accurate statements of the law on the subjects covered by them. However, they were not relevant to the issues being tried.

For the same reason defendants’ instruction 4 and 5 were not . applicable to this case. It was not necessary for this jury to be told that the State of Arkansas could never be made a defendant in her courts; or, that the State Claims Commission has exclusive jurisdiction over claims against the state. The trial court had already properly ruled, as a matter of law, that this was not a suit against the State of Arkansas.

The trial judge was not required to state for the record his reasons for refusal of these instructions since their correctness was not in issue, only their applicability to the case. The inapplicability was apparent without comment by the trial judge.

III.

Appellants finally argue that the trial court erred in refusing to direct a verdict in favor of each defendant; and, also in failing to enter judgment for each notwithstanding the verdict. The import of this argument is that the evidence is not sufficient to support the verdict against any or all of the appellants. We find no merit in this contention. A directed verdict is proper only when there is no substantial evidence from which a reasonable mind could find for the plaintiff on a fact issue after all inferences are drawn, and all evidence considered in the light most favorable to the plaintiff. Farm Bureau Mutual Ins. Co. v. Parks, 266 Ark. 454, 585 S.W. 2d 936 (1979). It is clear that a jury question existed in the case before us as to the negligence of each defendant; and the trial court was correct in refusing to direct a verdict in favor of any of them. The trial court was obligated to accept the verdict of the jury as it was based upon sufficient evidence. The action of the court below in overruling the motion of each defendant for judgment notwithstanding the verdict was therefore correct.

Affirmed.


text:
    MFA MUTUAL INSURANCE COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HOME INSURANCE COMPANY
    CA 79-254
    595 S.W. 2d 706
    Court of Appeals of Arkansas
    Opinion delivered March 5, 1980
    Released for publication March 26, 1980

      Wright, Lindsey & Jennings, for appellant.

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellee-cross-appellant.
   James H. Pilkinton, Judge.

On September 6, 1972, in White County, Arkansas, a motor vehicle owned by W. J. Davis and operated by Charnel E. Simmons was involved in a collision with a motor vehicle owned by Julian Hays and occupied by his wife, Hazel. It is conceded that the accident was caused by the negligence of Mr. Simmons and resulted in damages to Mr. and Mrs. Hays.

Simmons had orally contracted to make some body repairs on the Davis vehicle. On the day of the accident Simmons drove to Davis’ residence, left his own vehicle there, and with Davis’ permission took possession of the Davis vehicle. While in the process of driving the Davis vehicle to his own home where he planned to make the repairs, Simmons was involved in the collision in question.

The Davis vehicle was described in a policy of insurance issued to Davis by the Home Insurance Company. This company denied that it had applicable liability coverage due to an express exclusion in the Davis policy. This exclusion read:

EXCLUSIONS. This policy does not apply: Under coverage A and B, (d) to an owned automobile while maintained or used by any person while such person is employed or otherwise engaged in the automobile business . . .: DESIGNATIONS. Under Part 1: “automobile business” means the business or occupation or selling, repairing, servicing, storing or parking automobiles;

Simmons himself had an automobile policy with MFA Mutual Insurance Company covering himself while operating non-owned vehicles with the permission of the owner. However, MFA likewise denied that it afforded liability to Simmons because of an express exclusion stated as follows:

(7) EXCLUSIONS — Coverages A and B do not apply to:
(h) A non-owned automobile while used (1) In the automobile business by the named insured. DEFINITION . . .
(2) “Automobile Business” means the business or occupation of selling, repairing, servicing, storing or parking automobiles.:

While both policies defined “automobile business” in the same manner, the other wording of the two exclusion clauses is different as will be discussed later.

Because of the denial of coverage by both the Home and MFA, Mr. and Mrs. Hays filed suit against their own insurance carrier, State Farm Mutual Automobile Insurance Company, under the uninsured motorists provision of that policy. Davis and Simmons individually were also made parties defendants. State Farm, in turn, filed third party complaints against Home and MFA, alleging that the denials of coverage by the two carriers were erroneous.

Subsequently the three carriers agreed that State Farm would settle with Mr. and Mrs. Hays and then resolve the contentions of the carriers among themselves later. Settlement with Mr. and Mrs. Hays was thus effected for $6,-780.28; and State Farm filed an amended third party complaint against Home and MFA companies (and also against Davis and Simmons) seeking reimbursement. A jury was waived and this matter was submitted to the trial court on the basis of a stipulation of the three carriers, the deposition of Simmons, and memorandum briefs. The trial court held that Home Insurance Company had properly denied coverage, but that MFA had not. From a judgment ordering MFA to reimburse State Farm, MFA brings this appeal. State Farm had filed a cross-appeal from the judgment exonerating Home.

The trial court correctly held that the MFA policy did not exclude coverage under the facts of this case. While Arkansas courts have apparently not passed on this exact question, the legal issue involved (and the precise exclusionary language contained in the MFA policy of insurance) have been litigated in several other jurisdictions. An examination of the results reached in those cases shows that the trial court in the case at bar followed the overwhelming weight of judicial authority in holding that the MFA’s exclusionary language does not cover a fact situation where a car is being taken to a garage for repairs, or returned to its owners after repairs have been completed. See Continental National American Group v. Allied Mutual Insurance Company, 95 Idaho 251, 506 P. 2d 748 (1973).

In Continental the court concluded that there were three general types of exclusionary language employed by insurance companies under the so-called “automobile business” exclusion. The first type of exclusion is that contained in the policy of MFA Insurance Company in the case before us. This type of exclusion excludes coverage to vehicles being “used in the automobile business.” The focus of this exclusion is therefore upon the nature of the use of the automobile at the time of the accident rather than the employment capacity of the person so operating the vehicle. A second type of exclusion commonly used is similar to that employed in the Home Insurance Company’s policy in the case at bar. This exclusionary language denies coverage to any person “while such person is employed or otherwise engaged in the automobile business.” The focus of this exclusion, unlike the MFA exclusion, is therefore the employment status of the person claiming coverage at the time of the accident rather than the use to which the automobile is being put at that time. The third type of exclusion, not involved in the case before us, is much broader than the other two, and places focus not only upon the employment of the person driving the vehicle at the time of loss, but also the use to which the automobile is being put at the time of the accident.

A brief discussion of those cases which have refused to apply MFA’s exclusionary language in identical fact situations readily illustrates the reasoning of those courts. For example, in the case of McCree v. Jennings, 55 Wash. 2d 725, 349 P. 2d 1071 (1960), the insured vehicle was taken to the premises of one Richard Miller whose primary occupation was that of barber, but who also did some part-time mechanical work. Mr. Miller had agreed to install a master cylinder in the insured vehicle. An accident occurred when the vehicle was being returned to the owner following the completion of repairs. The insurance company denied coverage to its insured under its policy exclusions (identical to MFA’s) which applied to:

A non-owned automobile while used in the automobile business by the insured.

In rejecting this contention, the Supreme Court of Washington stated what appears to be the well-settled interpretation of the “used in the automobile business” exclusion:

It would appear evident, therefore, that an automobile ‘used in the automobile business,’ would be one which was employed for some purpose in connection with that business. For example, a tow truck, an automobile used for demonstration purposes or a vehicle used for securing or delivering equipment and supplies would be ‘used in the business,’ but the. Jennings automobile was not turned over to Miller to be used by him for his business purposes. It was simply brought to him to be repaired.

In the case of LeFelt v. Nasarow, 71 N.J. Super. 538, 177 A. 2d 315 (1962), the Court likewise specifically held the “used in the automobile business” exclusion not applicable to a fact situation similar to the case at bar. The Court stated:

For the foregoing reasons, it is my opinion that a customer’s automobile in the custody or possession of an automobile repairman, who drives it for the purpose for testing the repairs which he has made is not being used in the automobile business within the meaning of the exclusion clauses in defendant’s policy.

In the case of Goforth v. Allstate Insurance Company, 327 F. 2d 637 (4th Cir. 1964), it was stated:

We agree with the district court that a private automobile being driven from the place of business of the owner by a garage-keeper to his garage for the purpose of effectuating repairs requested by the owner was not ‘used in the automobile business’ within the meaning of an exclusion clause in the owner’s liability insurance policy.

In the case of Travelers’ Indemnity Company v. Royal Indemnity Company, 275 Cal. App. 2d 554, 80 Cal. Reporter 197 (1969), the Court refused to apply this precise exclusion to an accident which occurred while an employee was road-testing a privately-owned car after repairs had been performed on it. The Court noted that under the type of exclusionary language involved in the case at bar, the emphasis was not placed upon the duties of the employee at the time of the accident, but rather the use to which the car is being put at the time of the accident and that, as such, the car was not being “used in the automobile business” but simply being returned to its owner.

We recognize that a minority of courts in other states have reached the opposite conclusion; however, we find the majority rule to be the most desirable and in harmony with the rules of construction applicable to insurance contracts generally.

If it can be said that the MFA exclusion provision is ambiguous, then the ambiguity must be construed against the insurance company preparing the contract, and the policy will be construed so as to provide coverage unless it is patently unreasonable to do so. See Travelers Protective Association v. Sherry, 192 Ark. 753 at 757, 94 S.W. 2d 713 (1936); St. Paul Fire and Marine Ins. Co. v. Kell, 231 Ark. 193 at 195, 328 S.W. 2d 510 (1959); Service Casualty of New York v. Vasseay, 245 Ark. 63, 431 S.W. 2d 243 (1968).

MFA could have, without extraordinary effort on its part, framed its exclusion in such language as that contained in the Home policy, for example, if it had intended to exclude the activities of repairmmen in picking up or delivering non-owned vehicles to their owners.

It is finally argued that MFA did not intend to contract for coverage under the situation in the case at bar. We find no merit in that contention. If that is true, then MFA should have stated so in clear and unequivocal terms in its policy.

We hold that the trial court was correct in the judgment rendered as to the MFA policy, and also the Home policy of insurance.

Affirmed on direct and cross-appeal.


text:
    John YEARGAN and Ovada YEARGAN v. THE BANK OF MONTGOMERY COUNTY
    CA 79-67
    595 S.W. 2d 704
    Court of Appeals of Arkansas
    Opinion delivered March 5, 1980
    Released for publication March 26, 1980

      Philip M. Clay, for appellants.

      J. Fred Jones, for appellee.
   Marian F. Penix, Judge.

The Bank of Montgomery County sued John and Ovada Yeargan to reform a note and mortgage to recite the intention of the parties in the face amount of $52,316.92 with final payment due on November 6, 1983, in the amount of $22,566.92 rather than the $13,-535.81 as set out in said note and mortgage. The Yeargans allege the Bank made a sole and unique error in the calculation of the interest; that the error is not an error running to the Bank entitling the Bank to reformation.

In September, 1972 the Yeargans borrowed $27,000 to build a home. The agreed upon interest rate was 8%. The term of the note was for ten years and the monthly payments were to be $250. At the end of ten years the balance would become due and payable. The face amount of the note was $36,870.40. In November, 1973 the Yeargans borrowed an additional $5,000. New note and mortgage were prepared by the bank. The same terms of the 1972 note were in the 1973 note. The face amount of $43,535.81 was on the note as well as the Truth in Lending disclosure statement. The balance, or balloon payment, which was due and owing at the end of ten years was listed as $12,875.86.

In September, 1972 the Yeargans purchased credit life insurance from an independent agent in the amount of $30,-000. This was some $3,600 less than the amount owed on the 1972 note. In August, 1976 Mr. Yeargan began experiencing health problems. He suffered a myocardial infarction in November, 1976 and underwent coronary artery surgery in February, 1977. His doctor states that his prognosis is good for 3 to 5 years. In 1977 he attempted to get credit life for a different debt and was turned down.

In late February, 1978 an audit was made by the FDIC. It was discovered the interest was computed at a rate of 4% rather than at 8%. The interest rate and principal were listed correctly but the interest had been calculated incorrectly. The face amount of the 1973 note should have been $53,-316.92 and the balloon payment should have been $21,-875.86. The bank had no system of checks which were designed to catch errors of this nature. Each year the bank hired independent CPAs to check the bank. They would spot check some 40% of the notes held by the bank. It is not known if this particular note had been checked.

The bank drew up a new note and mortgage and asked the Yeargans to sign it. They refused. The Bank filed suit seeking reformation and the Chancellor granted the reformation. The Yeargans have appealed.

The Yeargans argue three points for reversal. I. Because the Bank violated a legal duty owed to the Yeargans which resulted in the Yeargans’ detrimental reliance the Bank should be barred from reformation. II. The error is a unilateral mistake which does not justify reformation. III. The Bank should be equitably estopped from asserting reformation.

The first issue we must resolve is whether or not this was a mutual mistake. If we find this to be a unilateral mistake then the reformation is error. A unilateral mistake cannot be the ground for reformation. Reformation proceeds upon the theory the contract has been made but that it is not correctly reflected in the written instrument. A mutual mistake is one which is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. It is a mistake shared by both parties to the instrument at the time of reducing their agreement to writing. Evidence of mutuality must relate to the time of the execution of the instrument and show that the parties then intended to say one thing and by mistake expressed another and different thing. In Weiss et al v. Turney, 173 F. 2d 617 (8th Cir. 1949) [Arkansas case] the court defined a mutual mistake as a mistake which appears to be a mistake by both parties, and by reason of both parties have done what neither intended and each must have labored under the same misconception in respect to the terms of the written instrument. From the record before us we can determine this was a mutual mistake. The Bank and the Yeargans both intended the instrument to reflect the interest at 8%.

Having determined the mistake to have been a mutual one we must look to see whether or not the Bank is barred from reformation.

There is no case law in Arkansas which holds a bank to a legal duty not to make a clerical, scrivener, nor mathematical error. Several jurisdictions (Ala., D.C., Ill., Kansas, Maryland, N. Dak., Ohio, Oregon, and Rhode Island) seem to require a violation of a positive legal duty in order for negligence to be a bar to reformation.

The Bank relies upon an Oklahoma case, Crabb v. Chisum, 80 P. 2d 653. In this case a promissory note erroneously stated interest from maturity rather than from the date of the loan. The agreement had been from the date of the loan. The note was reformed.

The Yeargans allege they relied upon the mistaken calculation to their detriment. They allege the uninsurability of Mr. Yeargan. There is no evidence the Yeargans have been harmed in any way by the mathematical error. There is nothing in the record indicating the Yeargans would have secured additional credit life insurance. The Yeargans had secured credit life from an independent agent not connected with the loan nor with the bank. Mr. Yeargan has not died. We find no evidence of any harm to the Yeargans.

There is no showing of a positive legal duty owed the Yeargans by the bank which would estop the bank from reforming the note and the mortgage. The Chancellor correctly allowed the reformation.

Affirmed.


author: Marian F; Penix, Judge.

text:
    Willie McCARTY v. Everett REID and SOUTHERN FARM BUREAU INSURANCE CO.
    CA 79-233
    595 S.W. 2d 702
    Court of Appeals of Arkansas
    Opinion delivered March 5, 1980
    Released for publication March 26, 1980

      Rogers & Madsen, by: Carl J. Madsen, for appellant.

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellees.
   Marian F; Penix, Judge.

The claimant was an employee of Everett Reid. He worked as a painter. On March 11, 1976, he was varnishing pantry shelves. In the kitchen, adjacent to the pantry, workers were gluing formica tops to counters. The claimant became choked up from the glue fumes. He testified the noxious odor made it difficult to breathe, caused his eyes to water and that he had a feeling in his stomach or chest of indigestion or heartburn. He left work, was taken from his home to the hospital where it was determined he had had a heart attack. The Administrative Law Judge ruled claimant was totally disabled and that his disability arose out of and in the course of his employment. The full Commission reversed and found the claimant had failed to prove by a preponderance of the evidence his heart attack was causally related to his employment.

There is no dispute that claimant had a pre-existing condition of arteriosclerosis. The question facing the Commission was whether the incident involving the glue fumes was the precipitating factor for the heart attack.

There was conflicting medical testimony. Dr. Gerald Guyer, a family practitioner, testified the claimant told him he had an onset of chest pain at approximately 9:00 p.m. He further reviewed his records which indicated the claimant-patient “returns today with an increase in intensity.” In Dr. Guyer’s report of September 6, 1977 he wrote:

It is possible that the final event could have occurred while he was at home, had he not gone to work that day. As we know, he was not at home, but at work, and exposed to conditions which may have contributed to excessive stress on his heart. For these reasons, I feel that in this case, the patient’s illness arose out of and in the course of his employment.

A further examination of Dr. Guyer’s testimony reveals the hospital records make no mention of the fact the claimant’s hospitalization and subsequent treatment for his heart condition were in any way related to the glue inhalation. Dr. Guyer was asked:

Q. What are the odds on taking a man that has this primary disease — what are the odds of that condition — that primary disease being aggravated to the extent that you saw him on March 11, by being in a room and smelling some glue fumes.
A. I think it’s difficult to say. I can’t say I don’t know whether Willie McCarty’s heart attack was precipitated by the fumes. I don’t know that they were not. I think the combination of the fumes, the temperature, etc. going up and down the ladder made it possible that this could have caused enough stress to exceed the abilities of the heart. (Other testimony was the claimant did not climb a ladder the day of the attack)

The contradictory medical evidence was the testimony of Dr. B. J. Jenkins, a cardiologist.

... I have never seen, I have never read, I have never heard of and to my knowledge it is not recorded an incidence of myocardial infarction having been either caused or contributed to or precipitated by the presence of glue odor . . . Mr. McCarty had an infarct or had a heart attack. Statistically he was as likely to have it at work as he was at home and as a matter of fact he statistically would have been just as apt to have had it had he been in the hospital at the time it occurred ... By pure coincidence it occurred at that time and in my judgment had he been sitting on the front door of the hospital that morning at that particular time he would have had that myocardial infarction. As a matter of fact, one of the conflicting bits of testimony, as I recall, in reading most records was in regard to whether or not he had preceding chest pain. There was a conflict in that Dr. Guyer’s initial hospital note said that he had chest pain the previous evening at home, and he may or may not have. It’s, he very likely, could have had his heart attack the previous evening at home, you know.

Additional medical evidence was from Dr. J. C. Campbell, a specialist in pulmonary medicine. He responded to the question “Does the presence of fumes from a glue identical with or substantially identical with that described in the enclosed label (Dura Beauty, Contact Bond Cement) in an unventilated room reduce the supply of oxygen therein?”

In my judgment the oxygen supply in the room would not be reduced to any significant degree unless the fumes were ignited . . . Minor dilution of the oxygen supply in an unventilated room is possible, this would not be of medical significance in comparison to the potential direct toxic effect of the fumes themselves as well as the risk of explosion . . .

The claimant has cited several cases which represent instances when the Workers’ Compensation Commission has allowed recovery for a heart attack. In each instance there was substantial medical evidence to support the claimant’s contention that the attack arose out of and was in the course of his employment.

The claimant relies on Dougan v. Booker, 241 Ark. 224, 407 S.W. 2d 369 (1966). We find the Dougan case to be distinguishable from the one at hand. Evidence showed Mr. Dougan to have been engaged in a cramped position, doing strenuous work on the job. In Ottenheimer Brothers Manufacturing Co. v. Casey, 243 Ark. 209, 419 S.W. 2d 784 (1967) Chief Justice Harris said, in referring to Dougan, supra:

. . . But there are some distinctions in that case. There, a worker with a bad heart put forth unusual exertion in his work, collapsed on thie job and died ... As stated at the outset, we are only concerned with whether there was substantial evidence to support the finding of the Commission. It is not within our province irrespective of any sympathy that we might have ... to decide questions of fact.

In the case at hand the Workers’ Compensation Commission unanimously decided the heart attack suffered by claimant, did not arise out of and in the course of his employment. After a careful review of the record, and with an eye to the liberal construction to be afforded claimant we cannot find the Commission reached an erroneous conclusion. We find there to be substantial evidence. This is the test we must apply to the Commission’s findings. Purdy v. Livingston, 262 Ark. 575, 559 S.W. 2d 24 (1977); Barksdale Lumber Co. v. McAnally, 262 Ark. 375, 557 S.W. 2d 868 (1977).

Affirmed.


text:
    William A. NELSON and Emma L. NELSON v. Helen SHELLY and Marvin SHELLY and ARKANSAS DEPARTMENT OF SOCIAL SERVICES
    CA 79-195
    600 S.W. 2d 411
    Court of Appeals of Arkansas
    Opinion delivered March 5, 1980
    Petition for review denied April 14, 1980
    Petition for rehearing denied April 16, 1980
    Released for publication April 16, 1980

      H. Ray Hodnett, for appellants.

      James C. Hudson, for appellees.
   George Howard, Jr., Judge.

The issued presented is whether the trial court erred in denying appellants’ motion to intervene in a consolidated proceeding involving the Arkansas Department of Social Services seeking guardianship with power to consent to the adoption of Anthony Lee Duncan, the illegitimate child of Earnestine Duncan, and a petition filed by Marvin and Helen Shelly to adopt the minor.

The relevant facts are: Anthony was born on October 26, 1977. William and Emma Nelson, appellants, have had the physical custody of Anthony since he was twenty (20) days old.

On July 5, 1978, the Arkansas Department of Social Services filed its petition, in the Crawford County Probate Court, for appointment of guardianship with power to consent to the adoption of Anthony.

On September 11, 1978, the mother executed a written consent for the Shellys to adopt Anthony. On the same day, the Shellys filed their petition to adopt Anthony in the Probate Court of Crawford County.

On December 27, 1978, Earnestine gave the Nelsons a written consent for the adoption of Anthony. On December 29th, she executed a written revocation of the consent she had given the Shellys.

On January 8, 1979, appellants filed their petition to intervene in the consolidated proceedings involving the Shellys and the Department of Social Services. The trial court in denying appellants’ motion found:

“1. That the proposed intervenors ... are not necessary parties . . . and their interest, if any, can be adequately protected in a separate proceeding.
“4. That it is in the best interest of Anthony Lee Duncan that the petition of Arkansas Social Services for guardianship with power to consent to the adoption of said minor without the consent of or notice to the natural parents be granted.”

It is plain that appellants have stood in loco parentis for Anthony since he was twenty (20) days old. Appellants’ custody has been exclusive and uninterrupted for a period of time exceeding one year. Appellants are the only parents that the child has any knowledge of. Moreover, the appellants received a written consent for the adoption of Anthony. Under these circumstances, it seems self-evident that appellants possessed an interest in the child which qualified them as necessary parties to the proceeding involving the Arkansas Social Services, seeking guardianship of the minor with the right to consent to adoption, and the Shellys who sought to adopt Anthony pursuant to a purported consent given by the child’s natural mother.

While the record is silent as to whether Anthony was present during the consolidated proceedings, Section 56-214(a) of the Revised Uniform Adoption Act makes it mandatory that the petitioner and the individual to be adopted "shall appear” at the hearings unless the presence of either is excused by the court for good cause. Inasmuch as appellants were standing in loco parentis of said child, it would appear that this provision, which is jurisdictional, could not be complied with without notice to appellants.

The trial court’s order authorized the Arkansas Social Services Department to consent to the adoption of the minor, without “the consent of or notice to the natural parents.” The court’s action, in effect, rendered appellants’ consent to adoption from the mother a nullity without affording appellants minimal requirements of due process, namely, a right to be heard. With appellants’ consent rendered noneflfectual, it is impossible to visualize appellants being in any posture at all to protect any purported interest they claim in a subsequent proceeding.

Under the circumstances, delineated in this record, we hold that appellants are necessary parties and the trial court erred in denying their motion to intervene.

Reversed and remanded.

       Rule 24 of the Rules of Civil Procedure which became effective July 1, 1979, provides:
      “Upon timely application, anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
      Rule 24 is not applicable in the instant case in view of the fact this proceeding was conducted before the effective date of the new rules.


author: George Howard, Jr., Judge. David Newbern, Judge,

text:
    Nancy BUCKLEY v. Charles L. DANIELS, Director of Labor and U. A. CINEMA
    CA 79-280
    597 S.W. 2d 98
    Court of Appeals of Arkansas
    Opinion delivered March 5, 1980
    Petition for rehearing denied March 26, 1980
    Petition for review denied April 21, 1980
    Released for publication April 23, 1980
    Appellant, pro se.

      Herrn Northcutt, for appellees.
   George Howard, Jr., Judge.

Claimant was denied benefits under Section 5(a) of the Employment Security Law on the grounds that she left her last employment voluntarily and without good cause connected with her work.

Claimant, who was employed as a janitor, testified that the manager of the U.A. Cinema called her one evening at her home and advised her to turn in the keys and that she was “laid off.” On the other hand, the manager testified that the claimant voluntarily quit. The claimant denies this. The testimony of the parties alone is evenly balanced. The claimant has the burden of proof to establish her case by a preponderance of the evidence. If we were limited to just the testimony of the parties, we would be required to affirm the action of the Board of Review, but we are persuaded that there is other relevant evidence in the record which tips the scales in claimant’s favor.

The record reflects that almost immediately after claimant was employed as a janitor, problems developed with reference to the number of hours claimant was required to work each day and the hourly wage rate she was to receive.

Claimant filed a complaint with the United States Department of Labor, Wage and Hour Division, and requested an investigation of the working conditions and the wages paid. As a consequence of an investigation, the United States Labor Department found that claimant was “improperly paid due to the fact you were not paid at least the federal minimum wage required by the Act ($2.90 per hour) for all the hours you worked.” The respondent advised the Labor Department that it would reimburse the claimant . $284.20 which represented the unpaid wages.

Under these circumstances, we are not persuaded that there is substantial evidence to support the holding of the Board of Review and, accordingly, we reverse and remand for proceedings not inconsistent with this holding.

Reversed and remanded.

Newbern, J., dissents.

David Newbern, Judge,

dissenting. We have often held that the board of review decision in an employment security benefits case will be affirmed if there is substantial evidence to support it. For this proposition we cite, equally often, Terry Dairy Products Company v. Cash, Comm’r of Labor, 224 Ark. 576, 275 S.W. 2d 12 (1955).

In this case the majority says if we relied on the testimony we would have to affirm. That statement says clearly that there is substantial evidence in favor of the board’s conclusion. It can be construed no other way.

What follows, in the majority opinion, is a consideration of other evidence and discussion of the preponderance of the evidence. If we mean it when we apply the substantial evidence test in other cases, I cannot understand this one at all. Therefore, I respectfully dissent and would affirm the board’s decision even though, as the majority, I might have reached a different result had I been in the position of the board and faced with a question of where the preponderance of the evidence lay.


text:
    Dessie K. SMITH, Administratrix of the Estate of Carolyn SHAW, Deceased, and Wesley SHAW, Jr. v. Ada STEWART, Administratrix of the Estate of Wesley SHAW, Sr., and Dixie Mae SHAW
    CA 79-40
    596 S.W. 2d 346
    Court of Appeals of Arkansas
    Opinion delivered March 5, 1980
    Rehearing denied April 9, 1980
    Released for Publication April 9, 1980

      Jewell Brown, P.A., for appellants.

      Charles A. Brown, for appellees.
   David Newbern, Judge.

In this case we hold deeds to “Wesley Shaw and Dixie Shaw, his wife” created no right of survivorship, which would have existed in a tenancy by the entireties, as the persons named as grantees were not married, and no words otherwise expressed a right of survivorship.

The appellees have raised a point whether the appellant Wesley Shaw, Jr., and the appellant Smith’s decedent could, as illegitimate children of Wesley Shaw, Sr., have inherited his interest in the property even if no survivorship interest in Dixie Shaw were found. The trial court found no need to resolve that issue in view of its holding that the entire interest in question passed by right of survivorship to Dixie Shaw. We will comment on the matter because it will arise again on remand.

The appellees also allege deficiencies in the abstract submitted by the appellants. We found in the appellants’ abstract the main item with respect to which the appellees declared it deficient. It contained all the matters necessary to decide the case. Rule 9.

Wesley Shaw, Sr., and Dixie Mae Shaw lived together many years as if they were husband and wife. They purchased the realty which is the subject of this litigation and took by deeds to “Wesley Shaw and Dixie Shaw, his wife.” They were not married.

An administrator of the estate of Wesley Shaw, Sr., was appointed December 1, 1975. An objection was filed by the elder Wesley Shaw’s sister, Ada Stewart, who is an appellee, and who eventually became administratrix of the Wesley Shaw, Sr., estate. In her objection to the appointment of the original administrator, Ada Stewart recited that Smith’s decedent and Wesley Shaw, Jr., were the illegitimate children of Wesley Shaw, Sr. Her complaint was that the administrator was “pursuing” their claims and not giving her notice.

Ultimately, the court held the deeds created a joint tenancy with a right of survivorship and that, as Dixie Shaw was thus the successor to the elder Wesley Shaw’s interest, there was no need to decide whether the appellant’s decedent and Wesley Shaw, Jr., could inherit it.

I. Survivorship

We know of no Arkansas case in which a deed to two named persons who were not married to each other has been held to create a right of survivorship, absent some other language in the deed indicating an intent to create that right. Nor are we aware of any such holding in any other jurisdiction.

In Woodv. Wood, 264 Ark. 304, 571 S.W. 2d 84 (1978), our supreme Court held a right of survivorship was created when land was conveyed to “Boyd E. Wood and Murtha A. Wood, husband and wife, as tenants by entirety.” It was contended there that no right of survivorship was created because of Ark. Stat. Ann. § 50-411 (Repl. 1971), which provides:

Every interest in real estate granted or devised to two [2] or more persons (other than executors and trustees as such), shall be in tenancy in common, unless expressly declared in such grant or devise to be a joint tenancy.

Although the court referred to the process of ascertaining the grantor’s intent by examining the “four corners of the instrument,” the holding focused on the language of the deed. The “express declaration” required by the statute was found in the words “as tenants by entirety.” The court said:

The deed here did not stop with describing the purchasers as husband and wife but went further and stated that they were to hold “as tenants by entirety.” We also construe the deed as creating a joint tenancy with right of survivorship. [264 Ark. at 306]

Here we have deeds that do stop with “describing the purchasers as husband and wife.” No other words in the deeds even suggest survivorship rights, and we find the deeds insufficient to satisfy the statutory requirement of an express declaration of a joint tenancy with a right of survivorship.

II. Inheritance by Illegitimates

In Frakes v. Hunt, 266 Ark. 171, 583 S.W. 2d 497 (1979), it was held that the effect of the rule of Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459 (1977), would be prospective from the date of the Trimble decision which was April 26, 1977. However, in saying the ruling would not be retroactive, our supreme court did so “based on” a quotation from a Kentucky case and one from a Tennessee case. The Kentucky case, Pendleton v. Pendleton, 560 S.W. 2d 538 (Ky. 1978), said the Trimble rule would not be retroactive except as to cases “in which the dispositive constitutional issue raised in this case was then in the process of litigation.” (560 S.W. 2d at 539) In Allen v. Harvey, 568 S.W. 2d 829 (Tenn. 1978), the Tennessee court said the Trimble rule would not be retroactive but would “govern any cases pending in the courts of Tennessee on the date this opinion is released, asserting the right of children born out of wedlock to inherit from their natural father.” (568 S.W. 2d at 835)

Those cases may be interpreted as setting up an exception based on standards that differ with respect to the nature of the litigation which must be in progress for the rule to apply. They may also differ from each other and from Frakes in that they may consider the date from which the Trimble rule applies in those states, respectively, as being the time they decided it was applicable to them.

For our purposes, the date from which we determine the application of the rule is certain. The only question remaining is whether we should choose to apply the rule in cases where a specific constitutional issue had been raised prior to that date, as in Kentucky, or where the issue of illegitimates inheriting had been raised prior to that date, as in Tennessee. In Frakes, the court had no need to decide that question, as nothing was filed in that case until September, 1977. We find some authority for utilizing one of these approaches or the other, as they both were quoted with seeming approval in Frakes.

The practical problem or policy problem dealt with in the Frakes case, which resulted in the holding that Trimble would not apply retroactively, was avoidance of chaos which might be created if old land titles were to be upset. We do not believe the practical problem with respect to land titles would be at all exacerbated by taking the more lenient Tennessee approach. In that connection we note that the question of illegitimacy of the appellant Smith’s decedent and Wesley Shaw, Jr., was raised by the appellee, Ada Stewart, in her objection to their heirship which the record shows was filed December 24, 1975.

Reversed and remanded.