author: Fi. William Allen, Special Chief Justice. John F. Stroud, Justice,

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY and ARKANSAS WESTERN GAS COMPANY v. CITY OF FAYETTEVILLE, Arkansas
    80-176
    609 S.W. 2d 914
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980.
    [Rehearing denied February 2, 1981.]

      Ball & Mourton; D. D. Dupre, by: Sandra Brown-, and Walter R. Nihlock, for appellants.

      James N. McCord, for appellee.
   Fi. William Allen, Special Chief Justice.

After several years of planning and effort, appellee City of Fayetteville (City) by agreement with the Arkansas State Highway Department acquired sufficient federal funds to proceed with a project to extend and widen North Street in order to straighten the nearby intersection of Arkansas Highways 112 and 16 West. The project required a number of telephone poles and gas meters of appellants Southwestern Bell Telephone Company (SWB) and Arkansas Western Gas Company (AWG) to be relocated from their positions in the existing North Street right-of-way. Some of SWB’s poles were relocated within the existing right-of-way and some within the new right-of-way acquired for the project. All of the affected AWG meters were moved to locations within the new right-of-way.

The City brought an action seeking a declaratory judgment that SWB and AWG were liable for the costs of relocating their facilities. To expedite construction SWB and AWG agreed to relocate the facilities, preserving for determination by the courts the issue of whether the City or they are liable for relocation costs. The parties stipulated the facts and filed cross-motions for summary judgment. On February 6, 1980 the Washington County Chancery Court entered a decree declaring SWB and AWG liable for their relocation costs. It is from this decree that SWB and AWG appeal.

All the parties and the chancellor cite and rely upon three previous decisions of the court. They are: Ark. Stat. Hy. Comsn. v. Ark. Pow. and Light Co., 231 Ark. 307, 330 S.W. 2d 77 (1960); Ark. State Hy. Cmsn. v. Ark. Pow. and Light Co., 235 Ark. 277, 359 S.W. 2d 441 (1962); and City of Little Rock v. Ark. La. Gas Co., 261 Ark. 347, 548 S.W. 2d 133 (1977). In each case the utility was awarded its relocation costs.

In the I960 AP&L case we held that when a State Highway Commission project required the removal of power company poles entirely from the right-of-way it occupied in the City of El Dorado, Arkansas, the utility had been ousted from its property right and was entitled to recover its relocation costs from the Commission. The opinion in this case contained the following dicta which is relied upon by appellee here:

“Hence, if the city or county should change the right-of-way of a public street or road, or widen it, or relocate it, the Company could be required to change its poles and wires without compensation so as not to ‘unnecessarily and unreasonably impair or obstruct’ the street. But here it is not a question of requiring the Power Company to relocate its poles so as not to unnecessarily or unreasonably impair or obstruct the traffic. The Commission has demanded that the Company remove its facilities entirely from the right-of-way.” 359 S.W. 2d 441 at 442.

In the 1962 AP&L case the power company’s poles were located on right-of-way easements of two streets within the city of North Little Rock, Arkansas. The Commission subsequently engaged in the construction of an interstate highway which crossed these two streets and required the relocation of the affected poles further back on the existing right-of-way easements but outside of the new right-of-way acquired by the project. Because the poles were merely moved from locations on the existing right-of-way to other locations on the same right-of-way the Commission argued that the quoted language from the I960 case applied and the utilities should bear the cost of removal. However, the Court held that the right-of-way referred to in the quoted portion of the I960 AP&L case was not the existing right-of-way but the new right-of-way. Because the project removed and excluded the poles from the new right-of-way, the court ruled an ouster had occurred and the Commission was-required to reimburse the utility’s cost.

At this stage of the development of the cases, it might well have been assumed that the quoted dicta in the 1960 case still had substantial viability and would apply in situations where removal of utility facilities was within a street project’s newly created right-of-way. However, in the 1977 case of City of Little Rock v. Ark. La. Gas, supra, the Court rejected, at least by implication, any prospect of affording a different treatment to relocations of utility facilities depending upon whether the facilities were moved to points inside or outside a new right-of-way. The Arkla case dealt with a street improvement project where only the existing right-of-way was involved. The gas company, in the face of certain federal highway commission requirements, chose to remove its gas line from under the pavement or the street and relocate it along the side of the street, still within the existing right-of-way. The federal requirements included a prohibition against cutting the pavement for installing service connections for a period of five years and a restriction on Aridas use of its manholes to the hours between 8 p.m. and 6 a.m. This court found that the relocation to the side of the street was compelled by the limiting conditions placed on Arkla and that the requirements amounted to an ouster requiring compensation to the utility.

After reviewing these three cases, the chancellor below justified the conclusion that the utilities must bear their own relocation costs on the basis that, unlike the previous cases, there was no showing here:

“. . . That SWB or AWG had been ousted from easement rights altogether nor have any limiting conditions been placed on either in respect of access to, maintenance of or delivery of service from, their respective lines as relocated.”

We do not believe the case here can be distinguished from the Arkla case on the basis that in the latter limiting conditions were imposed and that no such conditions were imposed here. In this case the utilities were instructed to move their facilities outright — an even more drastic action than indirectly requiring their removal by imposing restrictions on access. We cannot affirm the lower court without overruling the Arkla case which we decline to do. Even if we were inclined to overrule the Arkla case, we could not condone a holding that reimbursement of a utility depends on whether it is directed to remove its facilities inside or outside of a new right-of-way. It is undoubtedly removal itself which causes the utility its primary harm in most cases, rather than the position of the relocation (assuming that the new location is in the near vicinity of the old location). It would be unfair to have a rule which would allow a municipality to gerrymander a new right-of-way in such a manner as to avoid reimbursing a utility.

We recognize the evolution of our decisions has departed to a substantial extent from the dicta of the I960 AP&L case relied upon by appellee. We further recognize that this case and the Arkla case depart from the general common law rule that a utility bear its own relocation costs when the changes are required by public necessity. McQuillin on Municipal Corporations, Third Ed. (1970) (Rev. Vol.) Vol. 12, Sec. 34, 74a (p. 183). However, the treatise does recognize exceptions to the general rule and that it may be changed by contract or legislation.

It is admitted by appellee that this project was constructed under the federal-aid urban system program and that if reimbursement is permissible under state law, the federal government will pay 70% of the reimbursement costs in issue. Two acts of the United States Congress have made provision for the reimbursement of relocation expenses occasioned in federally funded projects. The first is in the Uniform Relocation Assistance Act, 42 U.S.C. Sec. 4601 et seq. This Act provides reimbursement protection for “persons” who have been displaced of property rights as a result of federally funded or federally assisted programs. Appellee argues that utilities are not “persons” entitled to benefit from that Act as there is another federal statute dealing more specifically with utility relocation, the Federal Aids Urban System Act, 23 U.S.C. Sec. 103 et seq. Sec. 123a of that Act provides:

“When a state shall pay for the costs of relocation of utility facilities necessitated by the construction of a project on the Federal Aid Primary or Secondary Systems or on the Interstate System, including extensions thereof within urban areas, federal funds may be used to reimburse the state for such costs in the same proportion as federal funds are expended on the project. Federal funds shall not be used to reimburse the state under this section when the payment to the utility violates the law of the state or violates a legal contract between the utility and the state.”

There is no contract in this case that would be violated if these utilities are reimbursed, so the only issue here is whether state law would be violated. The only expression of the Arkansas legislature relating to relocation expenses is Ark. Stat. Ann. Sec. 14-1001 (Repl. 1979) and it reflects an intent to encourage the payment of costs of relocation in order to take full advantage of the federal payments provided by 42 U.S.C. 4601 et seq. Thus, in the only instance the legislature has spoken, it has reflected a general intent in favor of reimbursing relocation expenses.

We do not hold that in all cases of utility relocation the governmental authority must reimburse the utility for its costs, and we leave exceptions for future determination. Municipalities are not helpless in this regard. Ark. Stat. Ann. Sec. 73-208 grants cities and towns the right to provide for reasonable terms and conditions upon which a public utility may occupy the streets, highways or other public places within the municipality. For example, in this case SWB holds its property right under Ark. Stat. Ann. Sec. 73-1801 but appellee passed an ordinance setting the terms and conditions of SWB’s occupancy and pursuant thereto and in lieu of other taxes SWB makes an annual payment of $100,000 to appellee. AWG holds it property right under a franchise granted by appellee for which it pays a percentage of its revenues to appellee. The allocation of utility relocation costs could well be left to more specific legislation or negotiations between municipalities and utilites at the time of new construction or on the renewal of existing franchises.

We deem it unnecessary to discuss SWB’s contention that the federal government and not the city was the moving force in the project.

The decision of the chancellor is reversed and remanded for judgment to be entered in favor of the appellants for their costs of relocation.

Fogleman, C.J., not participating.

George Rose Smith and Stroud, JJ., dissent.

John F. Stroud, Justice,

dissenting. The majority opinion is a perfect illustration of the exception swallowing up the rule. The opinion indicates that this case cannot be affirmed without overruling one or more of the prior decisions of this court on the subject. In my view, the majority have just overruled all three precedents on the subject. Ark. State Highway Comm. v. Ark. Power & Light Co., 231 Ark. 307, 330 S.W. 2d 77 (1959); Ark. State Highway Comm. v. Ark. Power & Light Co., 235 Ark. 277, 359 S.W. 2d 441 (1962); and City of Little Rock v. Ark. Louisiana Gas Co., 261 Ark. 347, 548 S.W. 2d 133 (1977).

In the first AP&L case in 1959, the comments of this court quoted by the majority were not dicta, as the court was merely stating the general rule before finding that the facts fell within the exception to the rule due to the complete ouster of the utility’s facilities from the right-of-way. The general rule was stated as follows:

But even though the Power Company has the right to maintain its poles on the rights of way, it does not mean that the company could not be compelled to move its facilities so as not to unnecessarily interfere with use of the streets. . . . Hence, if the city or county should change the right of way of a public street or road, or widen it, or relocate it, the Company could be required to change its poles and wires without compensation so as not to ‘unnecessarily and unreasonably impair or obstruct’ the street.

The basic rule is also set out in 12 McQuillin on Municipal Corporations 183, § 34.74a (3d ed. rev. 1970):

The fundamental common-law right applicable to franchises in streets is that the utility company must relocate its facilities in public streets when changes are required by public necessity. Accordingly, it is generally held that the municipality may require a change in the location of pipes or other underground facilities of the grantee of a franchise, where public conveniences or security require it, even at the grantee’s own expense

In the second AP&L case decided in 1962, this court reaffirmed and quoted the basic premises previously set forth in the earlier AP&L case. However, as the Highway Commission required the utility to remove its poles from the path of a freeway and replace them with much higher poles, the court found that an ouster of the utility’s facilities had occurred, justifying reimbursement of the relocation expense.

The Arida Gas case in 1977 also found “in effect, an ouster rather than a mere relocation” due to the severe limitation of access to the facilities placed upon the utility by the street improvement project. By this comment the court obviously still acknowleded the general rule that the cost of a “mere relocation” would not be reimbursed to the utility.

In the present case, the City of Fayetteville required the telephone poles and gas meters of appellants to be relocated either within the existing right-of-way or the newly acquired right-of-way adjacent thereto as a part of the street widening project. There was no ouster from the right-of-way as in both AP&L cases, nor an ouster by restriction of access as in the Arkla case. The evidence clearly shows that there was a “mere relocation” with no extenuating circumstances, and as the facts square perfectly with the basic rule acknowledged by all three decisions of this court on the subject, I would apply the rule rather than discard it. For these reasons the finding of the learned Chancellor should be affirmed.

George Rose Smith, J., joins in this dissent.


source: Caselaw Access Project

author: Ernie E. Wright, Chief Judge. Marian F. Penix, Judge,

license: Public Domain

text:
    Shirley McCOY v. BUCKEYE COTTON OIL
    CA 80-396
    609 S.W. 2d 670
    Court of Appeals of Arkansas
    Opinion delivered December 23, 1980
    [Rehearing denied January 28, 1981.]

      Thomas & Nussbaum, by: Alan Nussbaum, for appellant.

      Owens, McHaney & Calhoun, by:John C. Calhoun, Jr., for appellee.
   Ernie E. Wright, Chief Judge.

The appellant brings this appeal from a decision of the Workers’ Compensation Commission denying her claim for medical and disability benefits on the finding she failed to establish by a preponderance of the evidence that her physical impairment arose out of and in the course of her employment.

For reversal appellant contends the Commission failed to give appellant the benefit of reasonable doubt in weighing the evidence. We treat the point as raising the issue that the finding of the Commission is not supported by substantial evidence and appellee argues this issue in its brief.

Appellant was injured in the right groin on November 29, 1978, when a jammed door to a lint cotton baler was pried open and the door handle struck her. Promptly after the accident her supervisor referred her to Dr. George Mallory, the company doctor, who examined the injury and found tenderness in the right groin. He performed no special tests, and released appellant for light work for a few days and prescribed pain medication. Dr. Mallory did not thereafter see or treat the claimant. On December 1, 1978, claimant was sent to the emergency room of Memorial Hospital in North Little Rock for further examination and her lower right side was found to be swollen. She worked until December 27, 1978, two days before she was to be laid off under a work reduction program. When she left work on December 27, she was having problems with hemorrhoids and her right leg was swelling.

Claimant continued to experience pain in the area of the injury and on January 25, 1978, she consulted Dr. Gilbert C. Evans. Upon examination, including x-rays and other tests, he found tenderness in claimant’s right groin area and the existence of a hernia or a mass in that area. He referred her to Dr. John E. Allen, a cardiovascular specialist and surgeon. Dr. Allen’s first impression was that the mass in appellant’s groin was an incarcerated hernia. He performed surgery and found no hernia but found multifocal fibrosis and lymphadenitis in enlarged nodes. Based upon the claimant’s history of injury at work and what he found upon surgery Dr. Allen stated the claimant’s “*** problems were secondary to her employment and arose out of traumatic dermatopathic lymphadenitis. This was confirmed by the final path report of which I am enclosing a copy.” Appellant was returned to the care of Dr. Evans and with the additional information supplied by the surgery performed by Dr. Allen, Dr. Evans’ objective findings were, “Traumatic lumphgenitis — Hunter’s Rt.” His report reflected the claimant’s history as having been struck in the abdomen by a baler door in late November, 1978.

Neither Dr. Allen nor Dr. Evans were present to give detailed testimony at the hearing on .the claim, however, the report of each reflected claimant’s condition resulted from the traumatic injury she sustained at work. We believe it to be a matter of common knowledge of which the Commission can take notice that it is extremely difficult, if not almost impossible, for claimants to secure the presence of a physician at hearings on workers’ compensation claims.

The employer’s physician, Dr. Mallory, a general practitioner, was present and testified on behalf of appellee. He had not diagnosed appellant’s dermatophyic lumphadenitis nor treated her for such condition. His diagnosis the only time he saw claimant was, “injury of right groin.” He saw her only the one time and prescribed some pain pills. He performed no special tests nor were any performed under his supervision. In response to leading questions from the appellee’s counsel he testified that vaginal infections could cause lymphadenitis, that the claimant could have incurred some infection after leaving her employment which had cleared up and left her condition, and that lymphadenitis is basically infectious in nature. He also testified infectious mononucleosis could cause lymphadenitis. At one point in response to a leading question as to whether hemorrhoids could produce lymphadenitis, he answered, “probably.” Later in his testimony however he stated, “I don’t think hemorrhoids would have anything to do with it.” There is no evidence that appellant suffered from any of the infections that Dr. Mallory stated could cause lymphadenitis. The evidence was her health was good prior to the injury and she was doing heavy labor work. She did have hemorrhoids, but Dr. Mallory’s final testimony as to whether that condition could account for lymphadenitis made it clear he did not think so. He stated he had never seen a case or read of a case of lymphadenitis resulting from a blow, and that he did not believe the condition Dr. Allen found came from the accident.

As the Commission’s opinion does not detail specific findings of fact on some crucial points, we are unable to tell whether the Commission resolved the claim upon the medical theory advanced by Dr. Mallory which in effect was that there is no validity to the opinions of Dr. Evans and Dr. Allen that the lymphadenitis was traumatic in origin and consistent with the history of the injury. The majority opinion of the Commission discusses at some length the testimony of the company doctor, but fails to mention the parts of the reports of Dr. Evans and Dr. Allen, a specialist, linking appellant’s condition to the injury. Dr. Evans and Dr. Allen performed extensive tests, Dr. Allen performed surgery, and they diagnosed her condition. Dr. Mallory had no opportunity to examine the mass that developed in appellant’s right groin. The opinion simply disposed of the crucial issue with the finding:

Claimant failed to prove by a preponderance of the evidence that a condition known as “dermatopathic lymphadenitis” was caused by a condition arising out of and in the course of her employment.

The above “finding” is a conclusion rather than a finding of fact, and we conclude that this case must be reversed and remanded to the Commission for further consideration. It appears the Commission does not have sufficient information before it to make a definitive determination as to whether dermatopathic lymphadenitis' can be produced by traumatic compression or rupture of lumph nodes or channels. Also, it is clear the Commission made no determination as to whether the multifocal fibrosis found in the groin by the pathologist was injury related.

The case will be reopened to receive further evidence on-these crucial questions, and if necessary the Commission should employ a qualified medical examiner in the field in question for the purpose of securing additional medical testimony relative to the issue of whether the condition from which claimant suffered arose out of the injury. This course of action is authorized by Ark. Stat. Ann. § 81-1319 (i), § 81-1323 (b) and Ward Furniture Mfg. Co. v. Heather, 234 Ark. 151, 350 S.W. 2d 691 (1961).

It is clear the Commission has failed to adequately detail findings of fact to enable this reviewing court to properly review the record. The Commission has the right to find the facts, but that right carries with it the duty to make and set out the crucial findings of fact and the supporting evidence. This rule is set out in Larson’s Workmen’s Compensation Law § 80.13 which cites numerous cases including Ward Mfg. Co. v. Reather, supra.

This case is reversed and remanded with directions to the Commission to take such further evidence as may be necessary, make definitive findings of fact on the crucial issues and render such award as is indicated by the findings.

In its final review of the evidence the Commission must keep in mind the established rule reiterated in Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487 (1968), that it is the duty of the Commission to draw every legitimate inference possible in favor of the claimant and to give him the benefit of the doubt in factual determinations.

Reversed and remanded.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. In this case, the majority of this Court, as presently constituted on its final day, has chosen to ignore the substantial evidence rule, supposedly the law in Workers’ Compensation appeals.

This misguided effort to achieve social justice, at the expense of a “deep-pocketed” or target respondent or defendant, is not the duty of a court. We are supposed to apply the law. Only the legislature should change it.

The Workers’ Compensation Commission draws every legitimate inference possible in favor of claimants. They are bound to do so by law.

When, as here, there obviously was substantial evidence for the Commission’s ruling, it is folly, and destructive of our whole anglo-American system to law to persist in this practice.

For the last time, I respectfully dissent.


author: Steele Hays, Judge.

text:
    G. W. NALL, Employer; ARKANSAS FARM BUREAU INSURANCE COMPANY, Insurance Carrier v. Floyd MAYNARD, Employee
    CA 80-279
    609 S.W. 2d 352
    Court of Appeals of Arkansas
    Opinion delivered December 23, 1980

      Barrett, Wheatley, Smith & Deacon, by: C. David Landis, for appellants.
    No brief for appellee.
   Steele Hays, Judge.

This workers’ compensation case is appealed by the employer from an award of total disability. Appellants contend that the claimant is not totally disabled and that the Workers’ Compensation Commission should have applied the second injury statute. We find the evidence sufficient to support the award and that the second injury statute is not applicable to the findings reached by the Commission.

The claimant is forty years of age and has a seventh grade education. His employment history includes work as a truck driver, mechanic and service station attendant. In 1962 and 1967 claimant sustained injuries to his back and in both instances surgery for removal of disc material was required. The 1962 injury was at the L4-L5 vertebral level on the left and a completely ruptured. intervertebral disc was surgically removed. This injury produced a ten per cent permanent, partial disability. The 1967 injury required surgery at the T5-S1 interspace on the right side for the removal of herniated intervertebral disc laminates. This injury produced additional disability.

In June, 1974, while employed by appellant, G. W. Nall, as a truck driver, claimant sustained the injury from which this claim arises as he was engaged in changing a truck tire. The injury resulted in a “severely ruptured L2 intervertebral disc.”

Claimant was released by his physician in January, 1975, with a rating of twenty-five per cent permanent disability and he returned to Mr. Nall’s employ, where he remained until late summer. Claimant attributes his leaving to not being able to do the work. Claimant appears to have worked off and on since the summer of 1975 at various jobs similar to the work he was accustomed to.

I

The sufficiency of the evidence to support the finding of total and permanent disability can hardly be seriously challenged. Appellants reason that because claimant returned to his previous employment changing tires and performing some of the same duties there and for other employers he cannot be regarded as totally disabled. But it is rather evident from the testimony that while the claimant seems to have made the effort, he is incapable of performing regularly the duties of the type of work for which he is qualified. At least that is the import of the findings below and we are bound to resolve all inferences against the appellants and to view the evidence most favorably to the claimant. Richardson v. Rogers, 266 Ark. 980, 588 S.W. 2d 465 (Ark. App. 1979); Price v. Servisoft Water, 256 Ark. 702, 510 S.W. 2d 293 (1974). In gauging the sufficiency of the evidence in support of the findings of the Commission, the Supreme Court often says that the test is not whether there is sufficient evidence to support a contrary finding, but whether the evidence suffices to support the finding which was made. Hollingsworth v. Evans, 256 Ark. 387, 500 S.W. 2d 382 (1973).

Weighing the medical evidence in this record from Dr. John Lohstoeter dated November 28, 1977:

I can think of no job this man could pursue that would be in any essence of the word “worthwhile” at this time. The factors keeping him from productivity are, of course, multiple. Mechanically, he is unable to ambulate any distance, he cannot drive without worsening his pain, etc. The major fact presents itself that he must spend the bulk of every day just trying to remain comfortable, and, no matter what he does, he cannot bring this to a successful conclusion. This is a sad state for a 40-year-old to endure.

against claimant’s limited educational qualifications, we are thoroughly satisified that the finding of total disability by the Commission is supported by substantial evidence. Upon that belief, we must affirm the finding. Richardson v. Rogers, supra Foster v. Johnson, 264 Ark. 894, 576 S.W. 2d 187 (1979).

II

Appellants insist that they are entitled to relief under the provisions of the second injury statute, Ark. Stat. Ann. § 81-1313(f)(2)(H):

In cases of permanent disability arising from a subsequent accident where a permanent disability existed prior thereto:
(2) If an employee has a prior permanent disability not occasioned by an injury resulting while in the employ of the same employer and in whose employ he received a subsequent permanent injury, the amount of compensation for this subsequent injury shall be fixed as follows:
ii. If the subsequent injury is one that is not scheduled under section 13(c) [subsection (c) of this section], the injured employee shall be paid compensation for the healing period and for the degree of disability that would have resulted from the subsequent injury if the previous disability had not existed.

Appellants point out that the 1962, 1967 and 1974 episodes involving claimant’s back are, in effect, sequential; that even the claimant recognized his own condition as involving a “bad back” prior to the 1974 injury; that this back condition was noticeable to others; and that claimant admitted being given restrictions on his physical activities as a result of his earlier injuries. It is argued that these facts bring the case squarely within the language of the second injury statute. Admittedly, these circumstances do give support to the premise that claimant’s total disability is the result of a combination of partial disabilities. But the problem is, the Full Commission made a contrary finding. The Administrative Law Judge and the Full Commission found that claimant’s total disability was the direct result of the 1974 injury, rather than being the result of the combined injuries and that determination has been held to be one of fact for the Commission. Davis v. Steams-Rogers Construction Company, 248 Ark. 344, 451 S.W. 2d 469 (1970); O.K. Processors, Inc. v. Dye, 241 Ark. 1002, 411 S.W. 2d 290 (1967). The specific finding, though not fully abstracted, appears in the order of the Administrative Law Judge, adopted by the Commission, as follows:

Notwithstanding the fact that the claimant had residual physical impairment from the 1963 and 1967 injuries, the fact remains that not only did he appear not to be symptomatic, but he had worked since 1967 in the workforce. At the time of his 1974 injury, he was not only working steadily but at a physically demanding job. That evidence, together with the medical evidence, convinces this author that the claimant has been rendered, totally disabled as a direct result of his June 22, 1974, episode. (Emphasis supplied.)

Therefore, we believe that the Workers’ Compensation Commission was correct in not applying the second injury statute to the specific findings of fact reached in this case. In order for the second injury statute to apply, it must be found that the previous injury (or injuries) combined with a second injury to cause the disability complained of. Wooten v. Mohawk Rubber Company, 259 Ark. 837, 536 S.W. 2d 734 (1976); Davis v. Steams-Rogers Construction Company, 248 Ark. 344, 541 S.W. 2d 469 (1970).

Finally,- it should be said that the finding of claimant’s total disability is attributable to the 1974 injury alone, rather than to the injuries combined, is supported by medical evidence. The earlier injuries involved the L4-L5 interspace, whereas the 1974 injury occurred at the point of the L2 intervertebral disc. Dr. Roy Tyrer’s report of March 4, 1976, discloses that he regards claimant’s present condition sa “essentially unrelated” to the previous injuries.

Thus, on the findings reached, the second injury statute is not applicable and the Commission was correct in so holding.

Affirmed.


author: James H. Pilkinton, Judge.

text:
    Faye AVINGTON v. Jessie Paul NEWBORN
    CA 80-324
    609 S.W. 2d 678
    Court of Appeals of Arkansas
    Opinion delivered December 23, 1980
    [Rehearing denied January 21, 1981.]

      Arnold & Demott, for appellant.

      Henry Morgan, for appellee.
   James H. Pilkinton, Judge.

The appellant, Faye Avington, and the appellee, Jessie Paul Newborn, own adjoining lands in Clark County, Arkansas. In the summer of 1979, Mrs. Avington had a survey made to determine the location of her east boundary line. There was an old fence, located somewhat west of where appellant thought her east boundary line was located. After appellant had the boundary surveyed, she took down the old fence, and had a new fence constructed just inside the survey line.

Mr. Jessie Paul Newborn, who now owns the property to the east, was in the U.S. Army and was stationed in Germany at that particular time. Mr. Newborn was notified by his aunt that the old fence had been taken down and a new one constructed. Mr. Newborn took a leave of absence and came back to Clark County, and filed this action in chancery court, asking for injunctive relief and damages for trespass. According to the pleadings, he based this, claim on adverse possession of the approximately five-foot strip in dispute.

The chancellor found in favor of appellee, determined the old fence to be the boundary line between the lands, and ordered Mrs. Avington to move the newly constructed fence to the old fence line. The chancellor also awarded judgment against the appellant in the sum of $ 1,500 for actual and punitive damages. Mrs. Avington has appealed from the decree of the chancery court.

The evidence is undisputed, that the old fence, now in question, was erected as a fence of “convenience” rather than as a boundary fence. Counsel for appellee phrases it in his brief as follows:

From the testimony of appellee’s witnesses it was apparent that in the early 1900’s, appellee’s grandfather moved his fence east to allow a lane for public use. Likewise, appellant’s predecessors in title moved his fence west to add to this lane.

The record is clear that there were originally two fences, which outlined a lane approximately ten feet in width, and that this lane was for the convenience of the parties who then owned the lands. The record further shows that over the years, the fence on the east side of this old lane deteriorated and passed out of existence, but Mrs. Avington and her predecessors in title ran cattle on their land, and for that reason maintained the fence on the west side of what was once the old lane. It is also clear that this strip in whole or in part was used as a lane for a second time at a later date, to afford ingress and egress to a house owned by the Newborns. The exact location of the house is not established by the record, and the evidence is unclear as to dates on any of these events which are critical to appellee’s claim of adverse possession. It is clear, however, that the true boundary line between the respective parties was the approximate center of the lane created by the setback of the fences.

The evidence indicates that Mrs. Avington is the record owner of the strip involved, i.e., the five or six feet of land immediately east of the old fence line as shown on the Whitfield survey. Appellee’s claim rests solely upon the existence of the old fence which, when he bought his land, he mistakenly assumed to represent the location of the true legal boundary. There is no contention here that Mrs. Avington did not put the new fence on her side of the correct line as established by Mr. Gary L. Whitfield, the only surveyor to testify. Mr. Newborn and Mrs. Avington both said they were attempting by this lawsuit to claim only to the correct legal line on the ground. And the prayer in appellee’s complaint seems to be in accord. It prays that the chancery court “enter a mandatory injunction directing the Defendant to replace the fence upon the historically accepted line, being the true boundary line between the properties owned by Plaintiff and the property owned by the Defendant.” (Emphasis supplied). Appellant therefore contends that any possession by Mr. Newborn was not adverse, on the theory that appellee intended to claim only to the true boundary, wherever that was, and was not claiming unconditionally the ownership of the land up to the old fence. See Wilson v. Hunter, 59 Ark. 626, 28 S.W. 419; and Goodwin v. Garibaldi, 83 Ark. 74, 102 S.W. 706. However, Mr. Newborn’s other testimony was to the effect that his claim was unconditional and he sought to prove that his possession to the old fence was under absolute claim of title. Thus although he stated on cross-examination, in response to a leading question, that he intended to claim only what his deed called for, at the same time he was very specific in his other testimony that at the time he bought the property from other members of his family he thought and assumed that the old fence represented the line. Appellee claimed he had never at any time recogni2:ed a possibility that the line might be anywhere else. Be that as it may, we can dispose quickly of the appellee’s claim of adverse possession. Until Mrs. Avington built the new fence and enclosed the approximately five feet of land in question, the record shows that this property was vacant and unenclosed. Hence appellee’s assertion of title by adverse possession rests solely upon the fact that his neighbor’s predecessor in title placed the old fence some five or more feet short of the common boundary. It is firmly settled, however, that “a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required number of years.” McLendon v. Johnson, 243 Ark. 218, 419 S.W. 2d 309 (1967); Brown Paper Mill Co. v. Warnix, 222 Ark. 417, 259 S.W. 2d 495 (1953). Here there is no semblance of actual hostile possession on the part of the appellee or his predecessors in title. Certainly there was no notice to Mrs. Avington that anyone was claiming the old fence as a boundary line. Under the circumstances here, appellee’s possession could not ripen into title by lapse of time, unless notice was in some way brought home to the true owner that the occupancy had changed from a permissive use for the convenience of the parties into a hostile use. In other words, if the holding of the strip, east of the old fence, began as an easement for a lane, by common consent, and for the convenience of the owners of both tracts, such holding could not change into an adverse or hostile status until notice was in some way brought home to the record owner, and the holding had continued adversely thereafter for the statutory period. Appellee admits that he never gave Mrs. Avington notice that he was claiming ownership to the “old lane fence” or that he considered it the west boundary line of his land. Harp v. Christian, 215 Ark. 833, 223 S.W. 2d 778 (1949).

After a careful consideration of the evidence, we have concluded that the decree of the chancery court is clearly erroneous (clearly against the preponderance of the evidence), and must be reversed. Rule 52, Ark. Rules of Civil Procedure. The evidence here falls far short of that required to establish title by adverse possession. Appellee is only thirty years of age, and knew nothing about the old lane. He claims that the fence still standing in 1979, which appellant tore down, was the same one that once existed on the east side of the lane. He had no personal knowledge of the lane, or which fence survived. Some of his witnesses did identify the fence still standing as “the same one that appellee’s grandfather built” but, on cross-examination, this evidence was weakened considerably as the witnesses admitted that they had not been on the land in recent years, and really were not sure whether it was the east or west lane fence which was still standing. Oh the other hand, appellant’s testimony concerning the old lane, the two fences bordering it, and the history of the surviving fence is clear and definite. While she is a party, and that must be taken into consideration in weighing her testimony, the evidence furnished by the surveyor corroborates the fact that it was the west lane fence that survived. Otherwise, the survey line would be five feet further west of the old fence. That would be inconsistent with appellee’s claim of adverse possession, as he would be the record owner of the strip in question. A careful review of the record clearly shows that the old fence, which appellant took down in 1979, was in fact the one originally built on the west side of the lane; and the finding of the chancellor to the contrary is clearly against the preponderance of the evidence.

It has been suggested that even though the evidence is not sufficient for appellee to prevail on the theory of adverse possession, this court should affirm the decree of the chancery court, on de novo review, on either the agreed boundary theory, or on a finding here that the fence had become a boundary line by long acquiescence. We find no merit in either of these suggestions. There is no evidence in this record to show that the fence still standing was an agreed boundary line. Appellee made no serious effort tó show an agreement concerning this fence as a boundary line. The record shows it was only a setback fence for a lane. The burden of proof was on appellee to show that the parties, or their predecessors in title, had agreed on a boundary other than that described in the respective deeds; and appellee made no serious effort to discharge this burden.

Neither do we find any merit in appellee’s suggestion that the fence had become a boundary line by long acquiescence. In all of the cases on boundary lines by acquiescence, there has been involved a peaceful adverse occupation of the lands up to the fence by the person claiming the boundary to be one by acquiescence. Council v. Clark, 246 Ark. 1110, 441 S.W. 2d 472 (1969) and cases there cited. Here the fence in question was built generally five feet off of the true boundary to accommodate a lane. The appellee failed to prove when the other lane fence passed out of existence, or the date the property ceased to be used as a lane. There is no basis upon which this decree could be properly sustained on the theory that the fence had become a boundary line by long acquiescence. The case was not tried on that theory, and there is no substantial evidence in this record to support that theory.

Appellant filed a cross-action below asking the trial court to settle her east boundary line in accordance with the Whitfield survey, and seeking to have appellant’s title to and possession of the disputed strip quieted and confirmed. She is entitled to that relief in light of the decision reached by this court. Therefore as title to land is involved, this case must be remanded for the entry of a final decree consistent with this opinion.

As this case is being reversed on another ground, the questions concerning damages have become moot.

Reversed and remanded.


text:
    ST. VINCENT INFIRMARY v. ARKANSAS EMPLOYMENT SECURITY DIVISION, and Charles L. DANIELS, Director of Labor, State of Arkansas, and Theresa LOCKHART and Helen WILLIAMS
    E 80-31
    609 S.W. 2d 675
    Court of Appeals of Arkansas
    Opinion delivered December 23, 1980

      House, Holmes & Jewell, by: Anne E. Owings, for appellant.

      Herm Northcutt, for appellees.
   James H. Pilkinton, Judge.

This is an unemployment compensation case. Appellees were discharged from their employment with St. Vincent Infirmary on October 4, 1979. They were employed in a child day care center operated by St. Vincent. The appellant contends that appellees were guilty of misconduct in accordance with Section 5(b)(1) of the Arkansas employment security law, which provides:

“. . . [a]n individual shall be disqualified for benefits:
(b)(1) If he is discharged from his last work for misconduct in connection with the work. ...”

It is well settled that in order for an employee’s action to constitute “misconduct” it must “. . . be an act of wanton or wilful disregard of the employer’s interests, a deliberate violation of the employer’s rules, a disregard of the standard of behavior which the employer has a right to expect of his employees.” Stagecoach Motel v. Krause, 267 Ark. 1093, 593 S.W. 2d 495 (1980); see also 76 Am. Jur. 2d, Unemployment Compensation, § 52; 26 ALR 3d 1356; Parker v. Ramada Inn, 264 Ark. 472, 572 S.W. 2d 409 (1978).

At the time of their discharge, Ms. Lockhart was employed as the secretary of the day care center, and Ms. Williams was a day care aide in the center.

Ms. Lockhart was discharged for a series of events occurring between October 1 and October 3, but particularly on October 3. The director was away from the center for part of the day on October 3. Ms. Lockhart engaged in personal business most of the day, visiting in the office with Ms. Williams and other employees, trying on blouses, and going over to the hospital to get food for herself and some of the other employees. Sometime between 1:00 and 1:45 in the afternoon, Ms. Lockhart left the grounds of St. Vincent Infirmary with Helen Williams and remained absent until about fifteen minutes to three that afternoon. Both Ms. Williams and Ms. Lockhart failed to clock out, which violated a well-established and generally known policy at the center. Ms. Williams and Ms. Lockhart refused to state where they had gone during this time, but admitted it was for personal business. They claimed they were gone only an hour, from 1:45 until.2:45, but there is evidence to the contrary.

Ms. Williams was discharged for her misconduct on October 3. As a day care aide for small children, she was supposed to supervise the children closely.. Instead of staying out on the playground with her co-worker and her charges, she visited with Ms. Lockhart in Ms. Lockhart’s office, ate a snack, and generally disregarded her duties. As stated above, she left the premises during the most crucial period of the afternoon, from 1:30 to 2:30. It was well known by her and the other employees at the center that this time of day was especially important, because day children were being picked up and evening shift children were being left off; and children were waking up from their naps and needed attention. Under established policy, no employee who had charge of children was permitted to leave at this time-unless it was her regular lunch break or unless she received special permission. And only the cook took a regular lunch break at this time.

After a thorough investigation of the facts on October 4, 1979, Ms. Carol Lawrence, director of the child care center, made the decision to terminate both employees for serious misconduct. When appellees later applied- for benefits, the initial determination of, the Employment Security Division was that they were disqualified. The claimants appealed, and after a hearing the appeals referee reached a decision that the claimants had been discharged for “reasons other than misconduct” and directed St. Vincent Infirmary to pay unemployment benefits. That decision was affirmed by, the Board of Review, which adopted the opinion of the referee. St. Vincent Infirmary brings this appeal from the decision of the Board of Review.

The Arkansas Employment Security Act provides that individuals are disqualified for eight weeks of employment security benefits if they are discharged from their work for "misconduct in connection with the work.” Ark. Stat. Ann. § 81-1106(b)(1) (Repl. 1976).

Ark. Stat. Ann. § 81-1107(d)(7) provides “in proceedings under this subsection (relating to an appeal to the Court of Appeals) the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.”

Whether the findings of the Board of Review are supported by substantial evidence is a question of lag, and this court may reverse a finding of the Board of Review which is not supported by substantial evidence. Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978).

We have been favored with splendid briefs by both appellant and appellees; and the case has also been argued orally. After a careful study of the record we have concluded there is no substantial evidence to support the decision of the Board of Review that appellees were discharged for “reasons of misconduct.” Therefore this case must be reversed.

It is undisputed that both appellees left the hospital grounds without permission, and without clocking out; that they were absent during the busy periods of the day; the time when they were gone, regardless of the length, did not correspond with appellees’ normal lunch period; and their absence placed the day care center in violation of regulations concerning the ratio of adult employees to the number of children present.

Appellees rely on Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W. 2d 890 (1980). As there stated, the statutory disqualification for unemployment benefits for misconduct should not be so literally construed as to effect a forfeiture of benefits by an employee except in clear instances of misconduct. The case at bar is distinguished from Willis Johnson Co. v. Daniels, supra. Here we have clear instances of misconduct on the part of both discharged employees and an absence of any substantial evidence to show that they were discharged for any reason other than misconduct in connection with their work. The actions on their part, which led to their discharge, were intentional, and displayed a substantial disregard of the employer’s interests, and of the employees’ duties and obligations. The record contains no evidence to the contrary. In Willis Johnson Co. v. Daniels, supra, we affirmed because in that particular case we found substantial evidence to support the result reached by the Board of Review. In the case before us now we must reverse because we cannot find substantial evidence to support the conclusion reached by the Board of Review that appellees were discharged “for reasons other than misconduct.”

Reversed.

Flowers, J., dissenting.

Hays, J., not participating.


author: W. Harold Flowers, Judge.

text:
    Ernestine DUCKINS v. STATE of Arkansas
    CA CR 80-54
    609 S.W. 2d 674
    Court of Appeals of Arkansas
    Opinion delivered December 23, 1980.

      E. Alvin Schay, State Appellate Public Defender, by: Matthew Wood Fleming, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M.Jochums, Asst. Atty. Gen., for appellee.
   W. Harold Flowers, Judge.

The sole question presented on this appeal is whether there was substantial evidence to sustain the appellant’s conviction on charges of carrying a weapon and resisting arrest. Ark. Stat. Ann., § 41-3135 (1) (Repl. 1977), and Ark. Stat. Ann. § 41-2803 (Repl. 1977). We find the evidence was sufficient.

On July 29, 1979, appellant was at the Other Center Cinema in North Little Rock, Arkansas, where she caused a disturbance and commotion following her charges that the cashier had overcharged her children. An offer to refund her money was made by the manager as he requested her to lower her voice or leave the theater. She continued the disturbance and the manager sought and received the assistance of an off-duty police officer who placed the appellant under arrest after she had used vile and vicious language. She continued her remonstrations and, according to a witness, “started screaming, hollering, digging her heels into the concrete to avoid leaving, and again shouting obscenities.” Testimony showed it took two officers to get the appellant into the police car.

When the appellant was placed in the police car, an officer took her purse. She repeatedly requested that it be given back to her, and upon a search by the officer, it was found to contain a .22 caliber Imperial pistol.

The appellant waived a jury trial, and upon trial to the court, she did not challenge the lawfulness of the search of her purse or admissibility of the pistol into evidence.

The appellant argues the charge of carrying a handgun as a weapon” should have been dismissed because of insufficiency of the evidence. The only weakness in the evidence asserted by the appellant is the state’s failure to show the gun found in the appellant’s purse was loaded. While our supreme court has referred to the fact that a gun was loaded as being evidence it was being carried or transported “as a weapon,” McGuire v. State, 265 Ark. 621, 580 S.W. 2d 198 (1979); Rowland v. State, 255 Ark. 215, 499 S.W. 2d 623 (1973), it has not identified that fact as an element of the offense or as essential to a finding that a handgun was carried with a purpose of using it “as a weapon.”

In Hathcock v. State, 99 Ark. 65, 137 S.W. 551 (1911), the supreme court approved an instruction to the effect that when one carries a pistol it is presumed to be loaded and carried as a weapon. The court quoted the following from Wardlaw v. State, 43 Ark. 73 (1884):

The statute does not require that the pistol should be loaded. ... If it did, its value would be severely impaired, for that is a fact which can hardly ever be ascertained beyond peradventure until somebody is shot. [43 Ark. at 74-75]

While the statute has been modified in some respects, the question in the Hathcock case, as here, was whether the handgun or pistol was being carried or used “as a weapon.”

In Carr v. State, 34 Ark. 448 (1879), a defendant showed affirmatively that one of the two pistols he had carried was inoperable and the other was unloaded. The court said, “[t]hese things, affirmatively shown, rebut the presumption that they were worn to be used as weapons,” (34 Ark. at 450), and the conviction was reversed and a new trial ordered.

Although these are old cases, they are the only ones in which our supreme court has confronted squarely the issue with which we are faced, and we find their authority undiminished. Thus, we hold it was not necessary for the state to have shown the pistol was loaded.

Affirmed.


author: David Newbern, Judge.

text:
    Henry Lee WATSON v. STATE of Arkansas
    CA CR 80-55
    609 S.W. 2d 673
    Court of Appeals of Arkansas
    Opinion delivered December 23, 1980

      E. Alvin Schay, State Appellate Defender, by: Linda Faulkner Boone, Deputy Defender, for appellant.

      Steve Clark, Atty Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

The main question presented is whether there was substantial evidence that property the appellant was found to have stolen exceeded $100 in value so as to authorize his conviction of felony theft. Ark. Stat. Ann., § 4l-2203(2)(b)(i) (Repl. 1977). We find the evidence was sufficient.

The appellant was convicted of stealing a suitcase packed with clothing and sundry items. Evidence showed he took the suitcase from an airport baggage area.

The owner of the suitcase testified as to the price she had determined a replacement suitcase of the same kind would bear ($96), and she testified as to the cost to her of some items such as slightly used cosmetics ($150) and 3 year old shoes ($90). These items, along with others, including a large amount of baby clothing, were in the suitcase when it was taken. She ultimately said the minimum value of the suitcase and its contents would have been $400 to $500.

The appellant finds objectionable the testimony as to the cosmetics, on the ground that the $150 included an undetermined amount of “services” provided by the seller. He contends the evidence with respect to the shoes cannot be considered substantial evidence of a value of over $100, and he contends the evidence as to the replacement value of the suitcase is only admissible if its market value cannot be determiend, and there is no showing that market value cannot be determined.

The appellant, however, does not address the testimony of the victim as to her opinion of the cumulative value of the property taken from her. That testimony was admissible and constitutes substantial evidence to support the finding the suitcase and its contents were worth in excess of $100. Polk v. State, 252 Ark. 320, 478 S.W. 2d 738 (1972). See also, Caldwell v. State, 255 Ark. 95, 498 S.W. 2d 858 (1973), and Cannon v. State, 265 Ark. 270, 578 S.W. 2d 20 (1979).

The appellant has also argued that the case should be remanded because the trial judge specified in the judgment that in view of evidence showing this to be the appellant’s second offense he must serve one-third of his sentence before he becomes eligible for parole. In Jones v. State, 270 Ark. 328 605 S.W. 2d 7 (1980), our supreme court held it was error for the court to enter a notation on the judgment that the defendant was “not to be considered for parole.” The case was remanded for deletion of the reference to eligibility for parole, because it was held the trial court had no authority to determine how the parole board exercises its prerogative. In the case before us, the trial court has in no way affected the exercise of the board’s prerogative because Ark. Stat. Ann. § 43-2807(c)(1) (Repl. 1977), provides specifically that a person sentenced to confinement in the state penitentiary for the second time “shall be eligible for release on parole after having served one-third of the time for which sentenced with credit for good time allowances.” The statute further provides that a judge may require one-half of the sentence be served. We find no prejudice to the defendant resulted from the trial court’s statement in this respect, and therefore we affirm. Moore v. State, 262 Ark. 27, 553 S.W. 2d 29 (1977).

Affirmed.


author: Richard B. Adkisson, Chief Justice.

text:
    Harvey L. BELL, Securities Commissioner of the State of Arkansas v. INVESTMENT TRAINING INSTITUTE, INC.; Jim NASH, An Individual; and FINANCIAL TRAINING ASSOCIATES
    80-168
    609 S.W. 2d 919
    Supreme Court of Arkansas
    Opinion delivered January 12, 1981

      James T. Pitts and William B. Brady, for appellant.

      Rose Law Firm, by: Phillip Carroll, for appellees.
   Richard B. Adkisson, Chief Justice.

The issue presented in this case is whether the appellant, Arkansas State Securities Commissioner, had either a statutory or common law basis to seek an injunction to prevent appellees from performing the following acts in regard to carrying on their business of tutoring applicants for license as broker-dealers under the rules of the Municipal Securities Rulemaking Board:

(1) Acquiring, or attempting to acquire, a copy of any examination given, or proposed to be given, by any government body or self-regulatory agency;
(2) Failing promptly to report to the appropriate government body or self-regulatory body the receipt of any portion of what is represented or which appears to be an examination given, or proposed to be given, by such a body or agency;
(3) Asking students to memorize and report back a specific test question(s), portions of a test, or otherwise relate verbatim portions of an examination;
(4) Providing specific questions for applicants to learn by rote as preparation for the examination;
(5) Having a staff member, officer, agent, or employee take an examination other than for a bona fide, full-time position within the securities business and as required for such association;
(6) Having a staff member, officer, agent, or employee in the testing room or in the halls, rest rooms, or other rooms and areas immediately adjacent to the testing room;
(7)Rebating fees, waiving fees, rewarding or otherwise paying for questions on, or reputed to be on, official examination;
(8) Representing that material used in the course of instruction is, or has been, on official tests, except where true and revealed as such by the testing body or agency;
(9) Conducting post-test, debriefing or other systematic debriefing practices which seek to determine specific questions and/or answers used on the test. Post-test conduct shall be limited to persons personally tutored for the examination and shall not be initiated, pursued or encouraged on the examination day;
(10) Conducting such a business without complying with Act 416 of the 1965 General Assembly, as amended.

The Pulaski County Chancery Court denied this requested injunction, holding that the Arkansas Securities Commissioner had no standing to bring the complaint, and that the statutory and common law basis cited and argued by appellant in support of his action related only to matters involving the “exchange, trading or sale of securities.”

Upon trial de novo in this court, we review three points which appellant relied on in the trial court and on appeal. Appellant claims a basis for injunctive relief under each of these points.

First, appellant claims statutory authority for relief under Ark. Star. Ann. § 67-1235(3) (Repl. 1966), which provides:

It is unlawful for any person, in connection with the offer, sale or purchase of-any security, directly or indirectly
(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.

However, since none of the acts complained of, if true, are in connection with “the offer, sale, or purchase of any security, directly or indirectly,” the statutory basis for the injunction is nonexistent.

Second, appellant claims a “violation of general law and Rules and Regulations of Securities Department,” citing Ark. Stat. Ann. §§ 67-1238(f), 67-1240(a)(2)(I), 67-1240 (b)(6) (Repl. 1966), and Rule 4.01(C). The statutory and regulatory authorities cited apply to applicants or registrants as defined within the Act and are inapplicable to appellees, who only train persons to take examination.

Also, we find appellant’s theory of “general law” as a basis for relief to be without merit. Appellant cites no authority for his broad assertion that various cases construing the Arkansas Securities Act, Ark. Stat. Ann. § 67-1235 — 1262 (Repl. 1966), have created a general common law prohibition against any wrongdoing by any person however remotely related to the specific provisions of the Act.

Third, appellant alleges appellees’ tortious interference with a contractual relationship between the National Association of Securities Dealers and the Arkansas Securities Department which administered the test.

Under this contract, the commissioner received a nominal fee to proctor the examination administered to applicants for registration. Even assuming that a valid contract existed between these parties, there is a total lack of proof in the record to establish an actionable interference with the contract by appellee resulting in damage to appellant. Also, we find no proof that the acts complained of either caused or were intended to cause any party to fail to perform the contract. See Mason v. Funderburk, 247 Ark. 521, 446 S.W. 2d 543 (1969).

Affirmed.


author: George Rose Smith, Justice.

text:
    Robert A. DREW and Joyce A. DREW v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF FORT SMITH
    80-204
    610 S.W. 2d 876
    Supreme Court of Arkansas
    Opinion delivered January 12, 1981

      Robert S. Blatt and Cooper Jacoway, for appellants.

      Gean, Gean & Gean, for appellee.
   George Rose Smith, Justice.

The only question presented by this appeal, which was transferred to us by the Court of Appeals, is whether the appellants can maintain their complaint’s second asserted cause of action as a class suit. Procedurally, the chancellor’s refusal to entertain the suit as a class action is appealable. Ross v. Ark. Communities, 258 Ark. 925, 529 S.W. 2d 876 (1975). Substantively, we sustain the chancellor’s conclusion.

In 1978 appellants, a married couple, bought a home already subject to a $32,750 mortgage to the appellee, First Federal. As a condition to its approval of the Drews’ assumption of the mortgage, First Federal required them to pay an assumption fee of 1% of the $32,384.30 balance due on the mortgage. The Drews paid the fee of $323.84, but within a few months they brought this suit against First Federal. They first assert that the assumption fee made the loan usurious, a question not yet decided in the trial court. Alternatively, they seek to assert in a class suit that the exaction of the assumption fee was an extortion on First Federal’s part, made possible by its contractual privilege of refusing to approve the Drews’ assumption of the mortgage and instead declaring the entire debt to be immediately due, which would force the Drews to obtain refinancing at a cost in excess of the 1% assumption fee. Our decision in Tucker v. Rulaski Federal Savings & Loan Assn., 252 Ark. 849, 481 S.W. 2d 725 (1972), is relied upon to support the Drews’ theory of recovery. The prayer of this part of the complaint is that First Federal be required to account to the plaintiffs, as representatives of the class, for all assumption fees collected from other persons during the preceding five years and therafter. An attorney’s fee is also sought. First Federal stopped collecting the assumption fee after this suit was filed.

First Federal filed a motion for a determination of whether the class suit is maintainable. ARCP 23(b). David Armbruster, a vice president of First Federal, was called by it as the only witness at the hearing upon the motion. On direct examination he testified that each assumed loan is different. The various properties are not only in Sebastian county but in other Arkansas counties and in Oklahoma. The improvements vary. Details of each transaction must be worked out on an individual basis with each assuming purchaser. Those who assume loans have varying degrees of credit worthiness. Counseling with the parties is necessary. Some applicants pay cash; others use secondary financing. In the Drews’ own case a substantial file was built up, the application having initially been refused because Drew’s income was insufficient. Eventually an arrangement was worked out by which he put up $2,000 as additional collateral. Armbruster estimated that about 1,800 assumption fees had been collected. Exact but incomplete information about the individual loans could be obtained by means of a computer at a cost of $2,500.

On cross examination Armbruster testified that about 10% of the assumptions were on FHA or VA loans, for which a flat fee of $35 was charged. He thought it cost more than that to process such an assumption. The other assumption fees averaged from $200 to $300 each, but his concern was with the total profitability of First Federal. No cost study had been made, though he was concerned about not charging more than what “we feel like is reasonable.” The same 1% fee was uniformly charged in each instance (except for FHA and VA loans). His estimates of the proportionate part of employees’ time and salaries devoted to processing the assumption applications indicate that, apart from the overhead cost of doing business, the fees resulted in a substantial profit to First Federal. Out-of-pocket expenses, such as fees for credit reports and the recording of instruments, were charged to the applicants. All alternative courses available to the borrowers would have been much more costly than the 1% fee.

The chancellor, in determining that a class action is not appropriate, found that there is not a sufficient commonality of interest among the members of the class, that any causes of action they may have are separate, and that a class action is not superior to other available remedies.

At the outset, it is possible that upon the facts of this case a class action might be maintainable in a federal court under Rule 23 of the Federal Rules of Civil Procedure. Indeed, in Arizona, where the federal rule has been adopted as a state rule, an intermediate court held upon facts practically identical with those before us that a class suit is proper. Home Federal S. & L. Assn. v. Pleasants, 23 Ariz. App. 467, 534 P. 2d 275(1975) overruled upon a different point in Hanania v. City of Tucson, 123 Ariz. 37, 597 P. 2d 190 (1979).

In the Pleasants case the court pointed out that the federal courts resolve doubts in favor of class actions. That, however, has not been the traditional view in Arkansas. Our original class action statute, Section 33 of the Civil Code, remained unchanged for more than a century. Ark. Stat. Ann. § 27-809 (Repl. 1962). It did not encourage the maintenance of class actions and was not so interpreted. In fact, we construed it quite restrictively in the case principally relied upon by the appellee, Ross v. Ark. Communities, 258 Ark. 925, 529 S.W. 2d 876 (1975), where we held that in a class action both the questions of law and the questions of fact must be common to all members of the class. Cf. Comment, Spears, The 1979 Civil Procedure Rule, 2 UALR Law Journal 89, 101 (1979).

It is significant that when we adopted our Rules of Civil Procedure in 1978 we did not copy Federal Rule 23, as we did many of the federal rules. Instead, we repeated our Civil Code section as subsection (a) of our Rule 23. We also omitted the greater part of subsection (b) of Federal Rule 23. On the other hand, we liberalized our restrictive holding in Ross by providing in subsection (b) that a class action may be maintained if the trial court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

In the case at bar it is sufficiently shown that the members of the class are numerous and that the principal question of law — whether First Federal’s exaction of the assumption fee could in some instances at least give rise to a cause of action in favor of the borrower — is common to the members of the class. It must still be shown, however, that the class action is superior to individual remedies for the fair and efficient adjudication of the controversy. Not merely efficient but also fair, which necessarily means fair to First Federal as well as to the class as a whole.

It is on this point that we cannot say the chancellor abused her “broad discretion” (Note 2 to our Rule 23) in finding that the class action is not superior to other remedies. In an individual action brought, say, by these appellants, First Federal would unquestionably be entitled to prove that the time and effort devoted to the Drews’ application made the 1% fee a reasonable one. If that is so, the Drews are not in an equitable position to profit by showing that First Federal overcharged other borrowers. Thus, even under Federal Rule 23(a)(2) it is questionable whether the Drews’ claim is “typical” of the claims of the class. Undoubtedly First Federal itself treated the borrowers as a class in exacting a uniform fee for everyone, but its conduct was not fraudulent or criminal. Consequently we cannot fairly hold that First Federal is somehow unable to present whatever defense or mitigation it may have in individual instances. Thus the class suit may become not one case but a conglomeration of hundreds of individual cases. The chancellor did not abuse her discretion in finding that such a class action would not be superior to individual remedies.

Affirmed.

Dudley, J., not participating.


author: Darrell Hickman, Justice.

text:
    Gregory SMITH, Larry Donnell JONES, and John Edward PRIDE, Jr. v. STATE of Arkansas
    CR 80-185
    609 S.W. 2d 922
    Supreme Court of Arkansas
    Opinion delivered January 12, 1981

      E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy State Appellate Defender, for appellants Smith and Jones.

      Kenneth C. Coffelt, for appellant Jones.

      Steve Clark, A tty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Five young black males were charged with raping two young white females. The case was tried before the Pulaski County Circuit Court sitting as a jury. After deliberating, the court found three of the defendants guilty and two not guilty. The three found guilty were Gregory Smith, Larry Donnell Jones, and John Edward Pride, Jr. On appeal they allege as common error that there was insufficient evidence to sustain their convictions. Their defense consisted mainly of attacking the credibility of the two females and hinged on the fact that neither of the females could say positively that a certain defendant penetrated her.

It must first be emphasized that the distinction between a principal and an accessory has been abolished. One who aids or assists in the commission of a crime is as guilty as the actual perpetrator of the deed. Ark. Stat. Ann. § 41-302 (Repl. 1977). Next, it is not for this court to determine the credibility of witnesses. That is a function of the trier of fact. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980). We only determine if there is substantial evidence to support the judgment. McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979). We find substantial evidence and affirm the convictions.

The female victims both testified that they were only fourteen years of age when they were raped. They were at a high school football game at Quigley Stadium in Little Rock on November 9, 1978, where they met three young black males during the game and engaged in coversation. It was agreed that they would go somewhere and get “high.” The victims said that there were two black girls with the young men and they all left the game to go a block or so to an apartment. The females said they did not know any of the black males or females before that evening.

Both white females agreed that at first there were only three males present in the apartment, but that others came into the apartment later. Jones left to get some liquor. When Jones returned the group had a drink; talked, and played cards. Later, one of the white females became somewhat apprehensive because the black females had left and when she asked to go to the restroom, Jones accompanied her to a separate building and stayed outside the room. She said that she was looking for a way out. After they returned to the apartment the two females said they had to leave. Both females agreed that two males blocked their way and that the lights were then turned off. One said she was raped three separate times; the other also said she was raped at least three separate times and perhaps four or five times. One said there were five or six males in the room; the other said there were eight or ten males when the rapes occurred.

Both females gave considerable testimony incriminating Larry Jones. Jones was at the game and at the apartment all the time, except when he left for the liquor. One female said Jones held one of her legs when she was raped. Jones was one of the two males that blocked the door when they tried to leave; he made obscene remarks just before they were raped; and he pushed one of the girls back just before the rape.

The females also identified the two other defendants as participants, but to a lesser degree. One described Gregory Smith as having a pierced ear with a small gold ball in his ear. He was identified as being one of the two who remained in the apartment when Larry Jones left for the liquor. He was identified by one female as being the other male who assisted Jones in blocking the door.

John Edward Pride, Jr., was identified by one female as having braided hair. He was identified as being one of two males who remained in the apartment when Larry Jones went for the liquor. He was also identified as being one who played a game of cards with one of the females and as one of the males who held one of the females when she was assaulted.

The only defense witnesses were two witnesses who were called on behalf of Pride. These were Pride’s brother and mother, both of whom testified that he was home when the alleged rapes took place.

Identity and the credibility of the witnesses were the critical issues in this case. However, the testimony we have recited is substantial and is sufficient to support the findings of guilty entered. Consequently, we affirm the convictions.

Affirmed.


author: John I. Purtle, Justice.

text:
    Melvin Wilbert DUKES v. STATE of Arkansas
    CR 80-189
    609 S.W. 2d 924
    Supreme Court of Arkansas
    Opinion delivered January 12, 1981

      E. Alvin Schay, State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted in the Jefferson County Circuit Court on two counts of aggravated robbery and two counts of theft of property and of being an habitual offender. The jury trial was conducted on May 9, 1980. Appellant was sentenced to 15 years on each of the two theft of property convictions and was sentenced to 50 years and a $10,000 fine on one aggravated robbery conviction and life in prison and a $15,000 fine on the other aggravated robbery conviction, all sentences to be served consecutively.

The only point argued on appeal is that appellant’s motion to dismiss for lack of speedy trial was overruled. We disagree with the appellant on this contention.

Appellant was initially charged by information on October 18, 1978. The warrant was not served until November 20, 1979, nor was the appellant taken into custody by the Jefferson County authorities until May of 1980. Appellant left the State of Arkansas before the warrant was served and went to California. He testified at the trial in Jefferson County that he was served with the warrant on November 18, 1978, while he was in the county jail in California. No other evidence or information supporting this statement is contained in the record. It is known that appellant commenced serving a sentence at Soledad, California, on March 4, 1979-

The warrant and information from Arkansas were served November 20, 1979, while appellant was incarcerated at Soledad. On the same day he filed a request for disposition of his Arkansas charges and was tried on May 9, 1980. Appellant’s request for disposition is dated November 20, 1979- The warden at Soledad made an offer to deliver temporary custody of appellant to the prosecuting attorney in Jefferson County. This offer was also dated November 20, 1979- There are no other records in the transcript or briefs to indícate earlier action by either the appellant or the prosecuting attorney.

The appellant filed a motion for dismissal for lack of a speedy trial on April 17, 1980. The motion was denied during the trial of the case on May 9, 1980.

The demand for a speedy trial in this case was made pursuant to Interstate Agreement on Detainers codified as Ark. Stat. Ann. §§ 43-3201 - 3208 (Repl. 1977) and Arkansas Rules of Criminal Procedure, Rule 29-1. Rule 29.1 reads:

(a) If the prosecuting attorney , has information that a person charged with a crime is imprisoned in a penal institution in the State of Arkansas, he shall promptly seek to obtain the presence of the prisoner for trial.
(b) If the prosecuting attorney has information that a person charged with a crime is imprisoned in a penal institution of a jurisdiction other than the State of Arkansas, he shall promptly cause a detainer to be filed with the official having custody of the prisoner and request such officer to advise the prisoner of the filing of the detainer and of the prisoner s right to demand trial
(c) Upon receipt from a prisoner of a demand for trial upon a pending charge, the prosecuting attorney shall promptly seek to obtain the presence of the prisoner for trial. , .

Article III, § (a), of the Interstate Agreement on Detainers Act requires that a petitioner shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecutor written notice of the place of his confinement and a request for final disposition of his case. Rule 29.1(b) places the duty upon the prosecutor to promptly file a detainer upon learning that an accused is imprisoned elsewhere. The prisoner then has the; right to demand trial and such trial must be had within 180 days unless there is good cause for a delay.

Neither the abstract and brief for appellant nor the transcript of the case reveals anything indicating there was an arrest and detainer filed other than the one of November 20, 1979. A request for disposition of indictment or .information was also filed by appellant on the same date. Also, the warden of the California institution offered to make temporary delivery of appellant for disposition of the charges pending in Jefferson County, Arkansas.

Both parties agree that the appellant was tried within 180 days from the date of the request for disposition which was dated November 20, 1979. Therefore, the only other matter on the appeal is whether the appellant was entitled to figure the 180 days from November 18, 1978, the date which he alleges he was first arrested. Assuming that he was arrested on that date, although there is nothing in the file to support such fact, the petitioner failed to respond in accordance with the provisions of the Interstate Detainer Act and Rule 29.1(c). There is a positive duty upon a prisoner to seek a trial after he is notified that charges are pending. If appellant had received a notice on November 18, 1978, it was his own fault that he did not request a final disposition of the charge until November 20, 1979.

We have previously held that an accused in prison in another state, for a different crime, must affirmatively request trial in order to activate the speedy trial rule or statute. State v. Davidson, 254 Ark. 172, 492 S.W. 2d 246 (1973). Also see Faulk v. State, 261 Ark. 543, 551 S.W. 2d 194 (1977). Therefore, the appellant having been tried within 180 days after his request for disposition of his case, we find no error and affirm the trial court.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Mac Allen SCANTLING v. STATE of Arkansas
    CR 80-173
    609 S.W. 2d 925
    Supreme Court of Arkansas
    Opinion delivered January 12, 1981

      Witt & Donovan, by: Ernie Witt, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was charged with the rape of his ex-wife’s eleven-year-old daughter. The jury found him guilty of carnal abuse in the first degree and set the sentence at ten years in the Arkansas Department of Correction and a fine of $10,000.

Appellant contends that the evidence presented at the trial was insufficient to support a conviction for carnal abuse.

The credibility of the witnesses and the weight of the evidence are matters to be determined by the trier of fact and not by the appellate court. Thomas v. State, 266 Ark. 162, 583 S.W. 2d 32 (1979). The test on appeal is whether there is substantial evidence to support the verdict. Hutcherson v. State, 262 Ark. 535, 558 S.W. 2d 156 (1977). There is substantial evidence in this case to support the verdict. The eleven-year-old prosecuting witness testified that the appellant had intercourse with her. The medical testimony was that although there was no evidence of physical trauma in the vaginal area, there was evidence of intercourse. This evidence supports the jury’s verdict.

Appellant next contends that the trial judge abused his discretion in permitting leading questions. The witness was eleven years of age. The trasncript shows that she was nervous and upset at the intimate nature of the questions. Arkansas Uniform Rules of Evidence 611 (c), Ark. Stat. Ann. § 28-1001 (Supp. 1977) allows the trial judge some discretion in permitting leading questions under these circumstances.

As stated in Hamblin v. State, 268 Ark. 497, 597 S.W. 2d 589 (1980).

“. . . In cases involving very young females, who are alleged to have been victims of crimes of this nature, this court will not disturb the action of the trial judge in permitting leading questions to be asked by the prosecution, if it appeared to him to be necessary to elicit the truth, unless his discretion has been abused. Crank v. State, 165 Ark. 417, 264 S.W. 396.”

The questions were proper under the circumstances.

Appellant’s third issue concerns a dialogue with the jury. During deliberations, the jury returned to the courtroom to seek clarification of some factual issues. After the foreman asked the first question, a colloquy took place with the judge and attorneys for the appellant and the state, all attempting to answer the questions. At one point the foreman asked, “Who brought the complaint to the state ... ?” One of the prosecuting attorneys, during the dialogue responded, “It’s just a legal technicality.”

The appellant’s attorney participated in the discussion at the trial and now, on appeal, objects to the colloquy. Appellant waived this issue by his attorney attempting to answer the questions of the jurors.

This case is being affirmed on its particular facts but should serve as a caveat. After deliberations have begun the court alone should answer questions from the jury.

After the verdict, the appellant employed his present attorney who filed a motion for new trial. The motion states that appellant was denied the effective assistance of counsel prior to and during the trial. The trial court denied this motion and it is properly in this court on direct appeal.

The circuit judge found that the trial attorney acted within the range of competence demanded of attorneys at trial. The totality of the evidence does not show the decision of the lower court is erroneous and it is affirmed.

Determining incompetency of an attorney during trial is a difficult matter because highly competent, experienced and skilled attorneys might disagree as to matter of trial tactics and strategy. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973). During this trial the attorney had to make an infinite number of decisions: whether to object; whether to offer a particular witness; how to cross-examine an eleven-year-old prosecuting witness; whether to put the defendant on the stand; and how to argue the case. As pointed out in Leasure, supra, 254 Ark. at 965, almost every person convicted can envision areas where his or her lawyer could have taken a different course.

Prior to trial the defense attorney must, at a minimum make some effort to prepare himself or herself and the client for trial. Normally this would include either interviewing the prosecuting witness or reviewing the statements given by the prosecuting witness and contained in the prosecuting attorney’s file. Neither of these was done in this case, but the trial attorney had known the young prosecuting witness for a number of years and decided not to interview her. Instead the Attorney conducted three interviews with the prosecutrix’ mother. While no formal discovery motions were filed asking for the prosecutrix’ statements, the defense attorney informally conducted discovery by questioning the deputy prosecuting attorney. The defense attorney testified, “I don’t think I have ever filed a motion and the reason is that Mr. Williams has always made anything he has available to me.”

Appellant complains that the attorney who tried the case did not talk to his alibi witness and made the decision not to use that witness without the benefit of an interview. The appellant’s alibi witness was his mother. The trial attorney testified that he knew all the members of appellant’s family and concluded that using appellant’s mother might well antagonize the jury.

Although effectiveness of trial counsel is not equated with success, it is meaningful that in plea bargaining the only offer by the state was a life sentence upon a plea of guilty to the charge of rape. The trial resulted in a ten year sentence and a $10,000 fine for carnal abuse.

Affirmed.