text:
    Jo Ann McGINNIS v. Harry B. McGINNIS
    CA 79-251
    597 S.W. 2d 831
    Court of Appeals of Arkansas
    Opinion delivered March 26, 1980
    Review Denied April 30, 1980
    Released for publication April 30, 1980

      Catlett & Stubblefield, for appellant.

      Gill & Johnson, by Marion S. Gill, for appellee.
   M. Steele Hays, Judge.

This is a declaratory action to have the rights of the parties to a property settlement declared and adjudicated by the court and to have certain provisions of the property settlement agreement declared void because, of its repugnance to the fee simple title of appellant.

The parties to this proceeding were divorced on July 31, 1975. They entered into a property settlement agreement, whereby appellant, Jo Ann McGinnis, received, among other things, 881.42 acres in Desha County. This agreement also provided for a lease to the husband on the same property, entitling him to exclusive possession and control of the land during his life. The agreement also provided:

(1) This lease shall be for the term of Husband’s life, and shall terminate on the 31st day of December of the year in which the Husband’s death occurs, if not sooner terminated by Husband’s as hereafter provided. The Husband shall have the right, by giving ninety (90) days advance written notice to Wife before the end of any calendar year. However, if Husband terminates this lease, he shall manage and supervise said land for Wife, at her request, and he will rent said land to the most qualified farmer obtainable and at the highest rent available.

On August 12, 1975, appellee conveyed the property in question by quitclaim deed. The granting clause stated that “I, Harry B. McGinnis, Grantor, ... do hereby grant, convey, sell and quitclaim unto Jo Ann McGinnis, Grantee, and unto her heirs and assigns forever, all my right, title, interest and claim” in the property which is the subject of this law suit. The Habendum clause stated:

To Have and to Hold the same unto the said grantee, and unto her heirs and assigns forever, with all appurtenances thereunto belonging.

On January 25, 1979, appellant brought this action to have the lease provision in the property settlement agreement declared void because she was not aware the provisions pertaining to the lease would “nullify” her right to sell the property and that the execution of the agreement was wholly unfair, and was an imposition on her property rights.

The chancellor entered a decree in favor of appellee, stating that appellant failed to present substantial evidence in support of her complaint; and that the provisions of the lease agreement and the deed are not repugnant. Appellant appealed the decision of the chancellor.

Appellant’s sole point for reversal is that the lease provisions of the property settlement agreement should be declared void, as being unconscionable and repugnant to the fee simple title of appellant.

We agree with the chancellor’s decisión and, therefore, uphold the decree. First of all, we should consider what type of leasehold was created by the agreement. This leasehold cannot be considered a tenancy for years because there is not adequate sufficiency as to the duration of the term. [See generally 49 Am. Jur. 2d Landlord & Tenant § 66 (1970)]. It has the primary characteristics of a tenancy at will. Generally speaking, a tenancy at will is characterized by uncertainty respecting the term and the right of either party to terminate it. At common law, when the lease was to be held at the will of the lessee it must also be held at the will of the lessor. In the instant case, the lease by an express provision, was terminable only by the appellee.

49 Am. Jur. 2d Landlord & Tenant § 75 (1970) states:

There is authority in support of a broad rule of law that a lease or estate which is at the'will of one of the parties is equally at the will of the other party, and that one of them is no more or no further bound than the other . . .
On the other hand, there is authority to the effect that in such a case the lessor may bind himself by such an agreement so that he cannot maintain an action at law for possession. Against such an action at law, equitable relief can be obtained, and in jurisdictions in which equitable defenses are allowed in actions at law, it would seem that there would be a good defense to the lessor’s action for possession in such a case.

Similarly, in Underhill, Landlord & Tenant, page 373 (1909), the following rule of law was pronounced:

A lease which is determinable only at the option of the lessee and which, consequently, may continue with his consent and against a protest of the lessor is valid . . . Such leases as this are not open to the objection that they are without consideration on the part of the lessee as to the period during which he elects to remain. The rent received by the lessor during the period is the consideration for the promise of the lessor to permit the lessee to remain in possession. These leases are somewhat in the nature of leases at will, and the time or period during which the lessee may continue need not be fixed but may be wholly at his option.

Hence, in Calkins v. Pierce, 172 Me. 474, 92 A. 529 (1914), lessor leased her homestead to lessee for her lifetime, on condition that lessee take care of lessor for as long as she lived. Lessor later brought an action to recover possession of the homestead. The trial court found in favor of lessor-plaintiff, stating that such an instrument purported to create a life estate and it, being a freehold, must be conveyed by deed. The Supreme Judicial Court of Maine reversed the ruling of the trial court, stating that in the absence of fraud, the agreement was still binding. The court further stated that such a lease of land for life in consideration of lessor on the premise that the life estate was not conveyed “under seal.” Where the lessee has not breached the contract, the lease operates to estop the lessor from repudiating the agreement:

Although the agreement did not convey a life estate, yet it was a valid agreement between the parties, and conveyed to the defendant an estate in the land, determinable only by death or at the will of the defendant.

In the instant case, appellee had a present subsisting interest in the property based on adequate consideration. Appellee had stated that he would not consent to a divorce unless he could farm the land in question. He had been farming the land, paying part of the mortgage and taxes, and paying the rent pursuant to the agreement. We believe appellant is estopped from denying the validity of the lease. See Newsome v. Meade, 102 W. Va. 489, 135 S.E. 604 (1926). Nor can we agree with appellant that her power to sell her interest is “completely nullified by the lease.” True, the lease no doubt reduces the prospects of a sale at full market value, however, we are not able to conclude that 881 acres of valuable farm land in Desha County, producing substantial annual income and which will at some future date become unencumbered as to fee title, cannot be sold.

Finally, the lease provision was part of an acknowledged property settlement agreement pursuant to a divorce proceeding and the decree of divorce approved and confirmed the settlement in its entirety and incorporated it into the decree by reference. Moreover, appellant’s quitclaim deed was executed pursuant to an express provision of the property settlement agreement and, consequently, subject to the lease. Agreements of this type are highly favored under the law and in the absence of fraud, should not be modified by judicial action. Godwin v. Godwin, 231 Ark. 951, 333 S.W. 2d 493 (1960); Tennison v. Tennison, 216 Ark. 748, 227 S.W. 2d 138 (1950). Appellant was at all times represented by counsel during the divorce proceedings. She cannot now be allowed to strike part of the property settlement agreement when she has no equitable or legal basis for doing so, at the same time retaining the benefits thereof.

Affirmed.


source: Caselaw Access Project

author: James H. Pilkinton, Judge. Marian F. Penix, Judge,

license: Public Domain

text:
    Irsie Irene POSEY v. Virgil POSEY
    CA 79-115
    597 S.W. 2d 834
    Court of Appeals of Arkansas
    Opinion delivered March 26, 1980
    Review Denied April 30, 1980
    Released for publication April 30, 1980

      Francis T. Donovan, for appellant.

      Guy H. Jones, Phil Stratton, Guy Jones, Jr., Casey Jones, by: Guy H. Jones, for appellee.
   James H. Pilkinton, Judge.

Irsie Irene Posey and Virgil Posey were married on November 30, 1939. They lived together from that date until February 17, 1979, a period of over thirty nine years. On February 17, 1979, after taking his wife to have their 1978 income tax returns prepared, and buying groceries, Mr. Posey left his wife at home and told her he was going to the barber shop to get his hair cut and would be back shortly. This was about 2:00 o’clock in the afternoon. He did not return home, and has lived elsewhere since.

Mr. Posey filed this suit for divorce against Mrs. Posey on March 23, 1979, and alleged general indignities. She filed a general denial and a cross action, but did not ask for an absolute divorce from the bonds of matrimony but from bed and board only. Her cross complaint alleged that Mr. Posey had been guilty of general indignities, and of adultery.

At a temporary hearing Mrs. Posey was awarded separate maintenance in the amount of $50.00 per week and possession of the home and automobile until the case could be heard on its merits.

The case proceeded to trial and, at the conclusion, the trial court found that each had established grounds for divorce; however, since Mrs. Posey was not asking for an absolute divorce, and Mr. Posey was, the chancellor awarded a divorce to him. At the same time the court reduced the support award from $50.00 per week, as provided in the temporary order, to $75.00 each two weeks; and Mr. Posey was awarded the automobile. The parties owned a home place as an estate by entirety. The court ordered the home sold, with the net proceeds to be divided equally as tenants in common, but permitted Mrs. Posey to remain in the home until it could be sold. Mrs. Posey has appealed from the decree of the chancery court.

From a review of this case de novo we are persuaded that the trial court erred in granting Mr. Posey a divorce. A preponderance of the evidence clearly shows that Mr. Posey was guilty of indignities towards his wife. After Mr. Posey went to the barber shop in February and did not return, his wife became alarmed when night came. She called her sister. It was snowing that particular night. Mrs. Posey’s sister did go out and locate the car Mr. Posey was driving. The car was unlocked but Mr. Posey was not with the automobile. Mrs. Posey testified that she was afraid he had met with foul play. She waited until eleven o’clock that night before having the car brought back to the home. She also reported Mr. Posey as missing to the local police department. It is undisputed that Mrs. Posey was very concerned about the whereabouts of her husband. One of her sisters and the sister’s husband came over and spent the rest of the night with Mrs. Posey.

Mr. Posey had left home on Saturday and Mrs. Posey did not hear from him until late the following Sunday. He called then, according to Mrs. Posey’s testimony, and demanded to know the whereabouts of his automobile. It is undisputed that he came by the home on the following Tuesday, put on clean clothes and went to work. A woman let him out of a car at the end of the driveway on that occasion. On the following Saturday he returned to the home again, moved all his clothing, and took the car. He told his wife he did not know where he would be but the proof shows Mr. Posey moved to a motel.

The proof offered by Mrs. Posey is not sufficient to establish that Mr. Posey was guilty of adultery. However, and without detailing all of the evidence, the record is clear that the neglect of his wife by Mr. Posey has been habitual while he has devoted his time and attention to another woman.

It is true, that Mrs. Posey was not without fault on her part; however, if we concur in the finding of the court below that both parties were at fault, we think the husband was the greater and first offender. We have concluded, under the facts here, that a decree of limited divorce should be awarded to the wife in accordance with the prayer of her cross complaint. The doctrine of comparative rectitude was applied in Longinotti v. Longinotti, 169 Ark. 1001, 277 S.W. 41 (1925), and Ayers v. Ayers, 226 Ark. 394, 290 S.W. 2d 24 (1956). In both Ayers and Longinotti, the fault of each party was examined and the party less at fault was granted a divorce even though both parties had established a right to divorce. We think the same course should be followed in the case before us.

We do not regard the doctrine of recrimination to be applicable in this case. The trial court did not find the parties to be equally at fault. Neither do we so find. The rule in Arkansas is that recrimination is applied only where the parties are equally at fault. Lewis v. Lewis, 248 Ark. 621, 453 S.W. 2d 22 (1970). Mrs. Posey did charge Mr. Posey with adultery and it can be correctly said on this record that she did not prove that particular charge. The trial court did not base its decree in favor of Mr. Posey on the ground that Mrs. Posey had charged her husband with adultery and failed to prove it. The chancellor may have felt that although Mrs. Posey failed to prove the charge of adultery, her testimony relative to that particular charge was given in good faith. It was held in Relaford v. Relaford, 235 Ark. 325, 359 S.W. 2d 801 (1962) that a charge of infidelity without basis is an indignity entitling the person charged to a divorce. Before the doctrine set forth in Relaford v. Relaford could be properly applied it must appear that Mrs. Posey was not in good faith when she testified. After pointing that out in Bowers v. Bowers, 257 Ark. 125 at 128, 514 S.W. 2d 387 (1974), the Arkansas Supreme Court said:

Furthermore, we do not go so far under the theory set forth in Relaford v. Relaford, supra, as to hold that a spouse is entitled to a divorce whenever such charges are not corroborated.

On the record here we cannot say that Mrs. Posey’s charge and testimony relative to the alleged adultery were not in good faith.

A limited divorce is called divorce from bed and board in our statute. See Ark. Stat. Ann. § 34-1202 (Supp. 1979). It is also known as divorce a mensa et thoro.

The grounds on which a limited divorce may be granted are the same as those specified for an absolute divorce. § 34-1202, supra. There is ample evidence in this record to support a decree in favor of Mrs. Posey based upon indignities. As her proof is sufficient, as required by law, she is entitled to a limited divorce which is the type of relief sought in her cross complaint.

The record shows that Mrs. Posey has no income of her own at this time. She has some back trouble which interferes with her ability to seek or hold a job under present circumstances. In his opinion from the bench the chancellor said:

You will understand the difficulty the court has now in the fact that Mrs. Posey is not able to work, and she has reached the age, like she says, where employment doesn’t come easy, and she has to sustain herself. For forty years she has been a homemaker and I guess worked some of the time, and made her contribution in the home. So the court feels for a period of time he should help sustain her.

In an earlier part of his remarks in deciding this case, the chancellor had also observed:

The proof is that Mrs. Posey has maintained the home, provided food and care for the plaintiff, and that she is physically unable to maintain a livelihood. This court is not inclined to award payments outside the marriage, but certain circumstances necessitate it.

Mr. Posey’s income is approximately $12,000 a year. He has pension benefits of $136.00 per month in addition to his earnings. The trial court awarded the appellant $50.00 per week as separate maintenance at the temporary hearing, an amount suggested at that time by the appellee. We find that sum to be more in keeping with appellant’s needs, and the ability of the appellee to pay, than the $75.00 for each two-week period awarded by the court at the final hearing. An award of this type is always subject to modification upon changed circumstances; however, upon the now existing facts we find the award for Mrs. Posey should be fixed at $50.00 per week. She should also be permitted to have possession of and occupy the homeplace as long as it is her principal place of residence. She has no other place to reside according to the testimony. An additional fee of $300.00 is allowed for services rendered by appellant’s counsel on appeal.

At the temporary hearing and prior to trial the parties made a voluntary division of certain furnishings, satisfactory to each, and that division of personal property is not questioned on appeal. The parties are bound by their voluntary actions in that regard, and such division is not disturbed by this appeal. Mr. Posey was awarded the family automobile in the trial court. That was a correct disposition of the car inasmuch as Mrs. Posey does not drive, and it is admitted that in dividing funds she received an extra amount approximately equal to the value of her interest in the car from a joint bank account.

The decree of the chancery court must be reversed and remanded for further proceedings and the eptry of a decree consistent with this opinion.

Reversed and remanded.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. I cannot agree with the majority opinion. It concedes the proof offered by Mrs. Posey is not sufficient to establish that Mr. Posey was guilty of adultery.

There is absolutely nothing in the record proving “the neglect of his wife by Mr. Posey has been habitual while he has devoted his time and attention to another woman.” There is not testimony Mr. Posey neglected nor subjected Mrs. Posey to indignities prior to the time he initiated the separation by leaving home. I am aware of Milne v. Milne, 266 Ark. 900, 587 S.W. 2d 229 (Ark. App. 1979), though in disagreement with the law as stated by the majority opinion. My colleagues will state that I simply cannot accept the fact that Arkansas is not a no-fault state. This however, is not the basis for this dissent. Even if Milne, which holds that conduct up until time of divorce can serve as grounds for divorce, is applied, Mr. Posey has done nothing which constitutes conduct which should deny him a divorce.

Our divorce statute requires no cohabitation after grounds for divorce are established. Had Mr. Posey remained at home the law would have presumed sexual intercourse and therefore condonation of his wife’s indignities which would have precluded a divorce. This separation, which is essential to obtaining a divorce, is now the evidence the majority points to to show studied neglect.

The majority makes it impossible for a party seeking a divorce to enjoy the company of fellow human beings. They concede there is no proof of adultery, yet reward Mrs. Posey for her falsei accusation. The majority would demand the behavior of a cloistered monk who must not communicate with, nor be seen in the presence of, members of the opposite sex. Furthermore they assume the conduct is immoral and an affront to the estranged wife. Our Court does not sit in moral judgment.

In reality the majority just cannot support a husband of 40 years leaving his wife. They do not wish to appear to approve of a divorce in this situation. This is not our function! The legislature has set out the guidelines by which a divorce may be granted. Neither the length of the marriage, nor sympathy for the wife, are factors for determining grounds.

While I would affirm Mr. Posey’s divorce I would increase Mrs. Posey’s alimony and award her the house. This is allowed by Act 705.

I respectfully dissent.


author: James H. Pilkinton, Judge.

text:
    Clarence B. BURDESS v. ARKANSAS POWER AND LIGHT COMPANY
    CA 79-302
    597 S.W. 2d 828
    Court of Appeals of Arkansas
    Opinion delivered March 26, 1980
    Petition for rehearing denied April 23, 1980
    Petition for review denied April 28, 1980
    Released for publication April 30, 1980

      Brockman & Brockman and C. Mac Norton, for appellant.

      Steve L. Riggs, Asst. General Counsel of Ark. Power & Light Co., for appellee.
   James H. Pilkinton, Judge.

The issue in this case is whether a prescriptive easement in favor of the appellant exists over the lands owned by the appellee, Arkansas Power and Light Company, and commonly referred to during the trial as the “White Bluff Plant Site”.

Appellant and appellee are the respective owners of contiguous tracts of land in Jefferson County, Arkansas. Both tracts lie to the east of Highway 365, to the west of the Arkansas River near Lock and Dam No. 5, to the north of the Pine Bluff Arsenal and the Jefferson River Road, and to the south of the Redfield River Road. The appellant alleged that the appellee had barricaded a road which had been used for many years by himself and the public; that a prescriptive easement should be declared over the tract owned by appellee; that the appellee should be enjoined and restrained from preventing him and the public from using this road; that the actions of appellee precluded his ingress and egress to the tract; and that he had been damaged in the amount of $25,-000.00 by the acts of appellee. The appellee denied the allegations of appellant and in addition pled affirmative defenses of abandonment, laches, waiver and estoppel. In connection with the trial, the judge made an on-site inspection. After this, the Chancery Court rendered its decision holding that the appellant did not have a prescriptive right over the property belonging to appellee. This appeal followed.

The Chancellor wrote a well reasoned opinion in this case which is a part of the record. After discussing the case law in detail, including Boullioun v. Constantine, 186 Ark. 625, 54 S.W. 2d 986 (1932); Bridwell v. A.P.&L., 191 Ark. 227, 85 S.W.2d 712 (1935); Armstrong v. Cook, 240 Ark. 801, 402 S.W. 2d 409 (1966); Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W. 2d 281 (1954), the trial court said:

. . . It appears that Kearney Road was an improved road to a point at about where A.P.&L. now has a guard gate and from approximately that point running east the road was unimproved and nothing more than a timber trial through the woods. This road was used by hunters and fishermen in addition to those hauling timber from these lands. Also, for a time several years ago, Burdess and some others lived near the river and owned property nearby and used this road as a means of ingress and egress.
The decisive question, in this case is, did Burdess, when he was using the disputed road, manifest an open and adverse interest for more than 7 years to the passageway and did the A.P.&L. and its predecessors in title know or should they have known of this adverse claim, thus creating an exception to the general rule as announced in Bridwell and Boullioun and many other cases? The Court must answer in the negative.
The burden of proof was on Burdess to show that the use of the road was adverse to the rights of A.P.&L. and its predecessors in title and not with their permission. Corruthers v. King, 235 Ark. 977.
Burdess has failed to meet this burden for the following reasons:
1. There is no evidence that Burdess or anyone else has ever improved the road. No gravel was ever put down nor were any culverts or bridges built.
2. Unlike the facts in Fullenwider, Burdess had an all weather, improved road running to his property from old Highway 65 until he, subsequent to A.P.&L.’s putting up a gate to the public on the west side of its property, apparently sold all his rights in certain other property he owned that abuts his remaining 18 acres. See Judgment on Stipulation, Defendant’s Exhibit 1. At the time of the trial in this case, Burdess had filed in the Federal Court case a motion to set aside the judgment and reacquire certain rights he did have to use the aforementioned improved road. In this motion, Burdess has alleged that “plaintiff (United States of America) has denied defendant access to all of his remaining property which he owns, and renders this property worthless to him.” See Defendant’s Exhibit 4. Even though he did not explicitly state it, the strong implication is that the improved road crossing the property sold to the government constitutes Burdess’ sole means of ingress and egress to his remaining 18 acres. This, of course, is at variance with his position in this case.
3. With the exception of a 1932 quadrangle map (Plaintiff’s Exhibit 5), no major photograph introduced by either party shows a clear and well-defined road crossing what is now A.P.&L. property. There are many timber trails that can be identified running in all directions.
4. International Paper Company was the owner of most of the timberland acquired by A.P.&L. for its White Bluff Plant. It apparently not only permitted but authorized many persons to come onto its property in connection with the cutting and hauling of timber therefrom. International Paper also apparently made no objections to Burdess and hunters and fishermen using the disputed roadway. Paraphrasing language from Boullioun, it was not the custom or habit of International Paper to object to persons enjoying the privilege of using its timber trials. The land was completely unenclosed and unimproved and the use of the many passageways in the nature of timber trials was with the indulgence of International Paper and its successor in interest, A.P.&L. “until such time as the owners (desired) to inclose them.”
For reasons stated, the Court holds that Burdess does not have a prescriptive right in the disputed road.
With this holding, the question of plaintiff’s damages is now moot.

Appellant argues on appeal that the decision of the lower court denying appellant a prescriptive easement is not supported by a preponderance of the evidence. The testimony of witnesses for both sides shows clearly that the land in question is unenclosed and unimproved timberland. The law is clear that use of a roadway over unenclosed and unimproved land is deemed to be permissive and not adverse to the owners of the land. Bridwell v. A.P.&L., 191 Ark. 227, 85 S.W. 2d 712 (1935). Although permissive use of a roadway can ripen into adverse use, there must be some overt activity on the part of the user to make it clear to the owner of the property that an adverse use and claim of right is being exerted. Stone v. Halliburton, 244 Ark. 392, 425 S.W. 2d 325 (1968).

It is clear from the evidence in this case that the logging trails used by the various witnessses were used spasmodically. Some witnesses indicated they had used trails in the area only during certain hunting seasons. The record shows that no discernable roadway existed across the area purchased by appellee for the White Bluff Plant Site although some interspersed logging trails did exist. Appellee did not deny that some parties may have used these logging trails or that they may at some time have driven vehicles across the land in question from International Paper Company. The record shows that no one from International Paper Company, or any previous owner of the property in question, ever prevented any of the hunters, fishermen, the appellant, or other witnesses for appellant from using the logging trails. The testimony is to the effect that no hostility ever emerged as a result of the use of any of the trails. Upon fencing of the area purchased by appellee, use of the White Bluff Plant Site as access ceased. Appellee claims that permission to use the land had been withdrawn. In addition, the evidence is clear that none of the trials used by the witnesses constituted improved roadways and that no maintenance was performed by parties using the trials. All witnesses indicated that the trails were unimproved; that no items such as culverts, gravel or other improvement could be located. The testimony in this case is silent on the issue of notice or of any activities sufficient to put the landowner on notice of an adverse claim of right. Consequently, the opinion of the learned Chancellor is correct in holding that the requirements necessary for creation of a prescriptive easement are missing. We have carefully considered the cases cited by appellant but find them not to be in point. They are distinguished from the case before us because in those cases relied upon by appellant actual knowledge by the landowner was involved or substantial maintenance had been performed. Neither element is present in the case at bar.

The Chancellor made an on-site observation following the taking of evidence, this was at the request of appellant. The Chancellor was accompanied by counsel for both parties in a four-wheel drive Jeep.

We agree with the trial court that the requirements for establishment of a prescriptive easement were not proven. This record simply does not show the necessary elements to establish a prescriptive easement. As the ruling of the Chancery Court is supported by a preponderance of the evidence, the decree must be affirmed.

Affirmed.


author: Marian F. Penix, Judge. Marian F. Penix, Judge.

text:
    OLD AMERICAN INSURANCE COMPANY v. A. W. WILLIAMSON
    CA 79-242
    597 S.W. 2d 118
    Court of Appeals of Arkansas
    Opinion delivered March 26, 1980
    Rehearing Denied April 23, 1980
    Released for publication April 23, 1980

      Arnold, Arnold, Lavender & Rochelle, by: Charles D. Barnette, for appellant.

      Ted. C. Capeheart, for appellee.
   Marian F. Penix, Judge.

A W. Williamson was the beneficiary of. hospitalization insurance policy with Old American Insurance Company. The policy was written on Charles L. Williamson, who died from a gunshot wound.

A. W. Williamson filed claim for the death benefit. Old American denied the claim. A.W. Williamson filed suit. Both parties moved for summary judgments. Both were denied. Written briefs and arguments were submitted to the Court, a trial by jury having been waived by both parties. The Court entered a judgment for plaintiff A. W. Williamson. Old American Insurance Company brings this appeal.

I

Old American contends the Court erred in finding the policy was ambiguous as to whether or not benefits would only cover death by reason of an automobile accident.

Page 1 of the policy provides:
The Company will pay the benefits, which, according to the policy provisions, are payable for hospital confinement as the result of injury or sickness and death as result of injury, when suffered by a Covered Person, as defined and provided for under the provisions of the policy.
The policy continues:
This policy provides benefits for hospital confinement from sickness or injury and for death from injury, subject to reduction for Covered Persons under age 18. It is renewable at the option of the Company, all as defined and provided for herein.

There is nothing in either of these clauses indicating the death from injury is limited to injury incurred from an automobile accident.

On page 2 are a list of the BENEFITS. The 3d paragraph Automobile Accidental Death Benefit:

If injury sustained as the result of an accident to an automobile, inside of which a Covered Person is riding, whether as driver or passenger, causes the death of such person within 90 days of such accident and while this policy is in force as to such person, the Company will pay the Death Benefit shown in the Policy Schedule, in a lump sum, in addition to any other benefits payable under this policy.

This clause can be interpreted as putting a 90 day limitation upon a death arising from an automobile accident. The paragraph appears to pertain only to benefits accruing in the event death results from an injury suffered in an automobile accident. It does not, however, state that the death benefit is restricted to death by automobile. There is nothing in the policy which excludes death from gunshot wound.

This policy provides benefits for death as result of injury in two different places on page 1; on page 2 for an automobile accident death benefit but does not exclude any other type of death from injury; and on page 4 contains identical language as found at the bottom of page 1, that is: BENEFITS ARE PAYABLE FOR DEATH FROM INJURY.

The policy taken as a whole is ambiguous. The general rule in Arkansas is that construction of the policy will be adopted which is most favorable to the insured. An insurance contract, like any written agreement, should, in case of doubt as to the meaning thereof, be interpreted against the party who has drawn it and is responsible for the language employed therein. See Firemen’s Insurance Company of Newark, N.J. v. Motley, 222 Ark. 968, 264 S.W. 2d 418 (1954).

Wommack v. U.S. Fire Insurance Company, 323 F. Supp. 981 (1971) stated:

Commonsense approach should be used in construing a policy of insurance fairly and reasonably to ascertain and carry out intent of parties, and generally the words employed in a policy are to be understood in their ordinary sense.

A common and ordinary sense approach to this policy leads this Court to the conclusion the parties intended death benefits to be paid in the event the insured died of an accidental injury.

Supplemental Opinion delivered April 23, 1980

We find the policy to be ambiguous as to Death Benefits. Therefore, as it is the settled law of Arkansas, when an insurance contract is ambiguous it is construed most strongly against the insuror, we find the Court’s judgment to be correct.

II

Old American Insurance Company contends the insured’s death was not from an accidental injury, in that it resulted from a gunshot wound which was precipitated by the insured’s own actions.

Evidence at the trial was contradictory. There was some testimony the insured had threatened to “cut” the killer. The trial judge, who had the opportunity to observe the witnesses and assess their credibility, found the insured’s death to have resulted from an accident. • We hold there is substantial evidence to support the decision of the trial court.

We find A.W. Williamson entitled to death benefits under this policy.

Affirmed.

Marian F. Penix, Judge.

We allow $250.00 additional attorney’s fee to counsel for appellee for services rendered on appeal.

Ark. Stat. Ann. § 66-3238 allows reasonable fees to be paid to insured’s attorney when the insurer has refused payment under the policy.

The purpose of the statute for allowance of attorney’s fees is to permit insured to obtain the services of a competent attorney and the amount should be such that well prepared attorneys will not avoid this class of litigation or fail to devote sufficient time for thorough preparation. Equitable Life Assurance Society of the United States v. Rummell, 257 Ark. 90, 514 S.W. 2d 224 (1974).

We find $250.00 to be a reasonable attorney’s fee. Blevins v. Commercial Standard Insurance Companies, 554 F. 2d 967 (8th Cir. 1976).


author: Marian F. Penix, Judge.

text:
    FRANK J. ROONEY, INC. and THE TRAVELERS INSURANCE CO. v. Lloyd D. PITTS
    CA 79-317
    597 S.W. 2d 120
    Court of Appeals of Arkansas
    Opinion delivered March 26, 1980
    Petition for review denied April 21, 1980
    Released for publication April 23, 1980

      Jones, Gilbreath & Jones, for appellants.

      Davis, Bassett, Cox & Wright, for appellee.
   Marian F. Penix, Judge.

This is a Workers’ Compensation case.

In September 1975 the Claimant sustained wide-spread permanent brain damage due to anoxia secondary to a cardiac arrest resulting from an acute myocardial infarction. Since that time the Claimant has been confined to the hospital and it is anticipated he will remain so for the remainder of his life. Initially the Respondent controverted the claim. On August 23, 1976 the Administrative Law Judge Charles E. Davis found the claim compensable and awarded total and permanent disability benefits, medical expenses, past and future, with current medical totaling $45,251.05 and accumulating at about $2,500 per month. The Respondent appealed to the Commission and later dismissed the appeal. There was no specific medical bills placed in the record at the August 23 hearing.

Extensive correpondence took place between the counsel for the Claimant and Respondent Insurance Company concerning the unpaid medical expenses. At further hearing on November 29, 1976 it was determined the Respondent was liable for a 20% penalty on the unpaid medical expenses. At a January 17, 1977 hearing Judge Davis ruled the respondent could not question the reasonableness and necessity of medical expenses accumulated prior to the August 23, 1976 hearing. On February 3, 1977 Judge Davis entered an order permitting Respondent to have a registered nurse view the Claimant’s treatment for the purpose of determining the reasonableness and necessity of the type of medical treatment the Claimant was receiving. Another hearing on January 17, 1977, continued on March 31, 1977, concerned the reasonableness and necessity of the type medical treatment being received by the Claimant.

In January 1977 the Respondent paid the $19,182.15 bill owed to Washington Regional Medical Center but refused to pay the $44,726.20 bill owed Fayetteville City Hospital.

In an August 28, 1978 order by Administrative Law Judge Jay Tolley the Claimant was awarded a 20% penalty on the sum of $44,726.20 as reasonable and necessary medical expenses incurred, the Claimant’s attorney was awarded a 10% fee on said penalty. On appeal to the full Commission the order was affirmed. The Circuit Court affirmed the Commission.

I

The Respondent appeals alleging error in the order directing the Respondent to pay a 20% penalty pursuant to Ark. Stat. Ann. § 81-1319(f). Respondent contends there had never been an “award”.

The reasonableness and necessity of medical treatment is an issue to be determined by the Commission. The Respondent Insurance Company was being asked to pay a substantial amount of medical expenses in excess of $40,000 and entitled to a hearing and determination on the issue of reasonableness and necessity without being assessed a 20% penalty. The August 23, 1976 opinion did not deal with the exact amount of medical to be paid. The Respondent Company was never permitted to submit evidence to show the expenses at Fayetteville City Hospital were unnecessary and unreasonable. There has never been any evidence, nor decision, with reference to the reasonableness and necessity of the $44,726.20 bill. The lower court erred as a matter of law. The Respondent was ordered to pay a 20% penalty on medical expenses, the exact amount of which had never been awarded. The statute § 81-1319(f) specifically requires there be an award:

(f) If any installment, payable under the terms of an award, is not paid within 15 days after it becomes due there shall be added to such unpaid installment an amount equal to 20% thereof, which shall be paid . . .

The August 23, 1976 opinion held “Respondents are liable for all medical expenses incurred or to be incurred by the Claimant.” After this opinion Respondent received a $77,152.66 bill. The bills had not been introduced at the August 23 hearing. This bill was compromised and paid on April 5, 1977. This was done without there ever having been an order directing the payment of a sum certain. At the August 8, 1978 hearing, the new Administrative Judge Jay Tolley, held the Respondent liable for a 20% penalty on a medical bill that had long been compromised and paid on April 5, 1977.

The medical bills were and are astronomical in this case. Of course the Respondent had a right to investigate the reasonableness and accuracy of them. Judge Tolley recognized that the August 23, 1976 order did not specify an exact amount of medical which must be paid. He therefore sought to tie it to Judge Davis’ evidentiary ruling of January 17, 1977 which was oral. The January 17 ruling was not an order nor an award, and an appeal could not be taken from it. Neither Judge Tolley nor the full Commission nor the Court below has heard the Respondent’s arguments and evidence with reference to the disputed bill.

The Claimant and Fayetteville City Hospital could have submitted their bills to the Commission for approval pursuant to § 81-1311. Instead they sent over $70,000 in bills to Respondent directly. The Respondent was prohibited by Judge Davis from showing the medical treatment and expenses at Fayetteville City Hospital were unreasonable and unnecessary.

Judge Tolley recognized Judge Davis’ error:

There simply was no proof as of August 23, 1976, as to the amount of medical involved. The amount of medical involved was only known after the August 23,1976 opinion .. It thus became encumbent on the claimant if he were to have a second hearing to determine the exact amount of the responsibility of the respondents for the medical.

Judge Tolley’s error was stating “This was accomplished as a result of the January 17, 1977 hearing.” This is error. How could an evidentiary ruling — which prohibited introduction of evidence on the issue — constitute a decision that $44,726.20 was reasonable? A $8,945.24 penalty has been imposed against Respondent without allowing Respondent to be heard. Applying the 20% penalty was error. There was no award which Respondent refused to pay.

II

Respondent contends error in applying § 81-1319(f) to an unpaid medical.

The Claimant attempts to distinguish our holding in Turner v. Trade Winds Inn, 267 Ark. 219 (1979) by stating it is a narrow holding pertaining only to subsection 81 -1319 (e). While the language in turn does specifically relate only to subsection (e) the philosophy which interpreted § (e) also applies to subsection (f). We find the philosophy expressed in Turner, supra, to be controlling.

On March 5, 1980, this court in Model Laundry & Dry Cleaning & Sentry Insurance Co. v. Gary D. Simmons, 268 Ark. 770, 596 S.W. 2d 337 (Ark. App. 1980), held:

. . . imposition of the penalty would raise a question to whom it should be paid.
. . . we, by looking to the statutory langauge can see the general assembly would not have made the penalty applicable only to installments had it intended it to apply to the other payments as well.
We hold that the reference in § 81-1319(f) to ‘installment, payable under the terms of the award’ does not include medical and legal expenses.

We hold that the penalty provision of § 81-1319(f) applies only to disability benefits and has no application to medical bills.

Ill

The Respondent urges Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480 (1976) requires a reversal on the award of maximum attorney’s fees to Claimant’s attorney. The Respondent interprets Henning, supra, as requiring an evidentiary hearing to determine whether maximum fees are warranted. We do not find this to be the correct interpretation of Henning. An evidentiary hearing is necessary only when the record indicates a bare minimum of services was provided. In the instant case the transcript alone is comprised of six volumes. There were five intense hearings and voluminous correspondence. The record hárdly indicates a bare minimum of services. There is substantial evidence to support the Commission’s award of maximum attorney’s fees. Therefore, we must affirm on this point.

The 20% penalty award is reversed.

We affirm the award of attorney’s fees.

Howard, J., dissents as to the 20% penalty award.


author: George Howard, Jr. Judge.

text:
    Charles Wayne ROBERTS v. James Kenneth SWIM
    CA 79-45
    597 S.W. 2d 840
    Court of Appeals of Arkansas
    Opinion delivered March 26, 1980
    Rehearing Denied April 30, 1980
    Released for publication April 30, 1980

      Baim, Bairn, Gunti, Mouser & Bryant, by: David K. Gunti, for appellee.

      Eilbott, Smith, Eilbott & Humphries, by: Alan R. Humphries, for appellee.
   George Howard, Jr. Judge.

This is an appeal, by the natural father of the minor involved, from a probate court order approving the adoption petition of the appellee, the child’s stepfather, without requiring the consent of the natural father. The trial court found that consent of the natural father was not required in view of the fact the natural father had for a period of at least one year, failed significantly without justifiable cause to communicate with the child or to provide for the care and support of the child as required by the final divorce decree involving the father and his former wife. See: Revised Uniform Adoption Act, Ark. Stat. Ann. § 56-201, et seq. (Repl. 1977 and Supp. 1979); Brown v. Fleming, 266 Ark. 814, 586 S.W. 2d 8 (Ark. App. 1979).

Section 56-206 provides:

“(a) Unless consent is not required under Section 7 [§ 56-207], a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:
(l)the mother of the minor;” (Emphasis supplied)

It is settled law that statutory provisions involving the adoption of minors are strictly construed and applied. Woodson v. Lee, 221 Ark. 517, 254 S.W. 2d 326 (1953); Norris v. Dunn, 184 Ark. 511, 43 S.W. 2d 77 (1931); Breithaupt v. Parker, Referee, 213 Ark. 837, 213 S.W. 2d 382 (1948). See also: Nelson, et al v. Shelly, et al, 268 Ark. 760, 600 S.W. 2d 411 (Ark. App. 1980).

The mother did not join in the adoption petition with appellee for the adoption of his stepchild; nor is there a written consent in the record by the mother registering her approval of the adoption. Moreover, the trial court’s adoption order nor the oral findings announced from the bench make any reference to the mother as having indicated her approval of the adoption. While the mother testified during the adoption proceedings, she never registered her consent.

It is plain the trial court was without jurisdiction to proceed in this matter without the mother’s consent.

While we reverse the trial court on the ground that the mother of the minor did not execute a written consent, we make the following observation.

In Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979), the Supreme Court in articulating the heavy burden cast upon one wishing to adopt a child against the consent of a parent quoted from 2 Am. Jur. 2 Adoption § 60:

“ ‘. . .In order to grant an order or decree of adoption in opposition to the wishes and'against the consent of the natural parent, the conditions prescribed by statute which make that consent unnecessary must be clearly proven and the statute construed in support of the right of the natural parent. Natural rights of parents should not be passed over lightly, even though the court is given power to enter decree of adoption without the consent of the parent or guardian when the judge considers that the best interests of the child will be promoted. The law is solicitous toward maintaining the integrity of the natural relation of parent and child, and where the absolute severance of the relation is sought without the consent and against the protest of the parent, the inclination of the courts is in favor of maintaining the natural relation.’ ”

The learned trial judge, in rendering his oral opinion, at the close of the case, registered some concern about appellant’s claim of not being able to visit with his child and his ability to contribute to the child’s support, but found that appellant had forfeited his right to consent to the adoption.

We believe that the conduct of a parent who has failed significantly without justifiable cause to communicate with his child or to provide for the care and support of his child as required by law or judicial decree, must be willful in the sense of being voluntary and intentional. It must appear that the parent acted arbitrarily and without just cause or adequate excuse. Pender v. McKee, 266 Ark. 18.

A trial court may find the resumption of payment of support just prior to or after the commencement of the adoption proceedings, while such resumption is not of itself sufficient as a matter law to preclude the operation of the statute, relevant in considering whether the parent’s conduct was willful or arbitrary.

Reversed.


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

text:
    EMERSON ELECTRIC COMPANY, Employer v. Chestley James POWERS, Employee
    CA 79-221
    597 S.W. 2d 111
    Court of Appeals of Arkansas
    Opinion delivered March 26, 1980
    Released for publication April 16, 1980

      Cathy, Goodwin, Hamilton & Moore and Donis B. Hamilton, for appellant.

      Dewey Moore, for appellee.
   George Howard, Jr. Judge.

Appellee sustained a compensable injury to his eye when hot metallic aluminum splashed in his face. Since the accident, appellant has not been able to judge distance and read signs along the highway; he has a nervous condition and his ability to drive an automobile has been affected appreciably.

Dr. Bobby Earl McKee, an ophthalmologist, testified that while appellee had an estimated impairment of 8.5% to the right eye and 16.4% impairment to the left eye, these figures did not actually represent the total visual impairment sustained by the claimant; that claimant’s visual efficiency was 62% and, consequently, his visual loss was 38%; that this visual loss represents a combination or cumulative impairment to both eyes, as distinguished from the sum of the impairment of . each eye separately totaling only 24.9%.

Dr. McKee also testified:

“A. Visual efficiency is measured by the ability to see objects, the ability to see objects in different fields of vision, and the ability to use the two eyes together. That’s the measure of visual efficiency.”
“A. . . . Now, as I explained to the people when I talked to them on the phone; you don’t normally estimate the visual efficiency of one eye alone. You have a combination of the two eyes, and with the combination of the two eyes, the American Medical Association has a form that the worst eye is multiplied, I think, by two, or the best eye is multiplied by two; then you divide that by three or four, but it is more complicated than just the visual efficiency of each eye; so, we really don’t use the visual efficiency of each eye because that’s really not an evaluation of his visual efficiency. His visual efficiency is not of each eye alone. His visual efficiency is of the two eyes.
As I explained to them, that’s really not an important figure at all there. It’s not a true estimate of his visual efficiency.”
“A. Because visual efficiency, as I explained to them is not visual efficiency of one eye because when you calculate the visual efficiency of one eye, then it assumes that that is just, one eye; so, when you add the two eyes together it changes becáuse the visual efficiency of the worst eye is given added weight around the calculation.”

In articulating the impropriety in computing claimant’s visual efficiency by computing each eye separately, as suggested by appellant-respondent, Dr. McKee said:

“A. It represents the percent visual efficiency of each eye, assuming he had no relationship to the other eye; meaning that if this were his only eye, then that would be the visual efficiency of that eye. You can not do that when a person has two eyes because there is always a relationship to the other eye.”

The Administrative Law Judge, in relying upon the testimony of Dr. McKee, found that appellee’s visual impairment to both eyes was 38%.

The Full Commission found that claimant sustained an 8.5% loss of vision to the right and a 16.4% loss of vision to the left eye entitling him to 24.9 weeks for loss of vision. In other words, the Commission rated each eye separately and did not give any consideration to the cumulative or combined effect of the injuries to claimant’s visual efficiency.

The Circuit Court of Green County, in reversing the Commission, stated:

“The Type of injury is partial loss of vision in both eyes.
“A literal, technical, mechanical application of the law (statutory as interpreted by case law) would require an affirmance of the Commission.
“The medical testimony established beyond dispute that claimant has sustained an 8.5% loss of vision in his right eye and a 16.4% loss to his left eye. The Commission added those percentages and assigned a disability of 24.9%. Its arithmetic seems unassailable. But the medical testimony further establishes that visual efficiency is determined by interaction of both eyes, thus producing a result which differs from the sum of the percentages just stated. In other words, because of the nature of human vision, this disability represents an exception to the mathematical rule that the whole is equal to the sum of all its parts. The undisputed proof in this case is that 16.4 + 8.5 =38. While that computation might offend mathematical purists, it is the only one that will accomodate the undisputed evidence in this case.”
Ark. Stat. Ann. § 81-1313(c) provides:
(c) An employee who sustains a permanent injury scheduled in this subsection shall receive, in addition to compensation for the healing period, sixty-six and two thirds per cent (66 %%) of his weekly wage for that period of time set out in the following schedule:
(14) Eye enucleated, in which there was useful vision, one hundred (100) weeks;
(19) Loss of per centum of vision: Compensation for the permanent loss of eighty per centum (80%) or more of the vision of an eye shall be the same as for the loss of an eye. In all cases of permanent loss of vision, the use of corrective lens may be taken into consideration in evaluating the extent of loss of vision;
(22) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member.

It is clear from the medical evidence claimant’s visual efficiency has been impaired to the extent of 38%. It is plain that one’s visual efficiency is not determined by evaluating the visual efficiency of each eye separately. Dr. McKee testified there is always a direct and integrated relationship between one’s eyes. Of course, it goes without saying an evaluation of one’s visual efficiency by rating each eye separately either assumes that the eyes have no relationship to each other or the claimant, as in the instant case, has only one eye. Under the calculations of the Commission, claimant stands to be uncompensated for visual impairment to the extent of 13.1%, amounting to, in terms of dollars, $1,650.60.

In 99 C.J.S., Workmen’s Compensation § 308, pages 1113 and 1114, it is provided:

“It has been recognized that to compute an award for multiple injuries by simply adding the amounts for each injury considered separately may be unfair where the cumulative result of the separate injuries is a significant additional injury; . . .”
“Where multiple injuries affecting members of the same extemity result in disability to the extremity other than that occasioned by the disability of the members, the award should be based on the disability of the extremity as a whole. . .

The better view, and, perhaps, more in acccord with the beneficient purpose of the Workers’ Compensation Law, recognizes the cumulative or combined effect of injuries and compensates for such upon the basis of the percentage of permanent disability found to be produced by the several injuries considered collectively, providing there is competent medical evidence to show such disability. Elk City Cotton Oil Co. v. State Industrial Commission, et al, 185 Okl. 503, 88 P. 2d 615, 618; Wetherbee Electric Co., et al v. Carmichael, et al, 194 Okl. 121, 148 P. 2d 188; Consumers Co-op Ass’n, et al v. Titus, et al, 201 Okl. 344, 205 P. 2d 1162, 1164; Porter v. Alfred S. Amer. Co., 83 So. 852 (La. 1920); Franklin v. L. Highway Comm., 152 So. 604 (La. Court of Appeals 1934); Alabama By-Products Corp. v. Winters, 176 So. 183 (Ala. 1937); Coffman v. City of Pulaski, 422 S.W. 2d 429 (Tenn. 1967); 11 Schneider, Workmen’s Compensation § 2318, page 510.

In 2 Larson, Workmen’s Compensation Law, § 58.20, page 10-212, the following observation is made:

“. . . [I]n recent years, there has developed . . . the view that scheduled allowances should not be deemed exclusive whether the issue is treatment of a smaller member of a percentage loss of a larger, or treatment of any scheduled loss as a partial or total disability of the body as a whole.”

We are persuaded that the facts bring this case within the scope of Ark. Stat. Ann. § 81-1313 (c) (14) and the circumstances warrant the allocation of a total schedule to two hundred (200) weeks for both eyes which sustained a combined impairment of 38%, aggregating seventy-six (76) weeks of compensation. We do not believe, as the trial court so believed, that an award determined by adding partíais taken spearately adequately compensates claimant for his loss.

In Vishney v. Empire Steel & Iron Co., 95 Atl. 143, claimant sustained an 80% partial and permanent loss to both eyes. The trial court determined the number of weekly benefits that claimant should receive by considering each eye separately. The Supreme Court of New Jersey, in reversing the trial court, state that claimant was entitled to compensation under a provision of the Act fixing compensation for complete disability and loss of both eyes, and because there was some usefulness remaining, the compensation should bear such relationship to the amount stated in the schedule as the disabilities bear to those produced by the injury named in the schedule.

In clarifying its holding in Vishney, the New Jersey Supreme Court in Orlando v. F. Ferguson & Son, 102 Atl. 155, made the following comment:

“We think the true rule is that in the case of a partial but permanent loss of the usefulness of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, compensation shall bear such relation to compensation for total and permanent disability as the partial but permanent disabilities collectively bear to total and permanent disability. . . .”

The Arkansas Supreme Court has emphasized that the Workers’ Compensation Act is remedial legislation and, consequently, should be broadly and liberally construed and doubtful cases should be resolved in favor of the claimant. Shaw v. Keeshin Poulty Co., 227 Ark. 90, 296 S.W. 2d 400 (1956).

In International Paper Company v. Tidwell, 250 Ark. 623, 466 S.W. 2d 488 (1971), the Court stated:

“ ‘ . . . Liberality of construction with reference to individual rights under our acts is resorted to whenever obscurity of expression or inept phraseology appears and, given a restrictive construction, would have the effect Df defeating praiseworthy purposes that undoubtedly actuated our lawmaking body.’ ”

We are convinced that the holding of the Commission was not supported by substantial evidence and the trial court was correct in reversing the Commission. Accordingly, we affirm the Circuit Court of Greene County.

Affirmed.

Newbern, J., dissents.

David Newbern, Judge,

dissenting. I would be pleased to interpret our statute liberally if I could find in it language to interpret which could possibly lead to the conclusion the majority has reached.

Rather than “visual efficiency” which this court seems to attempt to measure in the majority opinion, our statute, as the majority notes, deals only with the loss of “an eye,” or loss of vision of “an eye.” I note that the New Jersey case cited by the majority was based on a statute “fixing compensation for complete disability and loss of both eyes” which our statute does not do. I also cannot help but observe that the Arkansas General Assembly knows how to increase compensation for loss of two body members which work together or perform the same function. Ark. Stat. Ann. § 81-1313 (c) (15)(Repl. 1976) provides compensation for loss of hearing in one ear at 40 weeks compensation. Section 1313(c) (16) provides 150 weeks for loss of hearing in both ears. Section 1313(c) (17) provides 50 weeks compensation for loss of one testicle and 150 weeks for loss of both testicles. These provisions are in the very same schedule of injuries which makes no such provision for the eyes.

Supplemental Opinion on Denial of Appellee’s Motion for Clarification delivered June 25, 1980

While I sympathize with the majority’s motives, I do not find this to be a matter of interpretation. The majority is legislating to make our statute as they would have it, despite the obvious intent of the body charged with that function. Thus, I respectfully dissent.

Per Curiam. While we deny appellee’s motion to issue a supplemental order in this action, we deem it expedient to state that our opinion of March 26, 1980, and the mandate issued pursuant thereto on April 15,1980, do not preclude the trial court from exercising its inherent and discretionary power to correct errors appearing in its orders or judgments, when such errors were not made an issue, as in the instant case, oh appeal.

       An ophthalmologist is a physician who specializes in the diagnois and treatment of eye disorders. 2 Attorneys’ Dictionary of Medicine, page 0-28.

       A Dr. George A. Haynes, an optometrist, submitted a report to respondent stating, in part, “Assuming that his vision before the injury was 20/20 in each eye, there is a lost (sic) of 16.4% in the right eye and 8.5% lost (sic) in the left eye.”
      Optometry is a field of practice dealing with the measurement of the eye with regard to its visual sharpness, focusing power and the need for eye glasses. 2 Attorney’s Dictionary of Medicine, page 0-35.


text:
    Dale PEMBERTON and Maxine PEMBERTON, His Wife v. ARKANSAS STATE HIGHWAY COMMISSION
    CA 79-225
    597 S.W. 2d 605
    Court of Appeals of Arkansas
    Opinion delivered March 26, 1980
    Released for publication April 16, 1980

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

      Thomas B. Keys, John L. Munday and James N. Dowell, for appellee.
   George Howard, Jr. Judge.

This is an appeal from a decree finding the Arkansas Highway Department owner of 3,942 yards of crushed rock stockpiled on property owned by appellants. The Department has cross-appealed from that part of the decree awarding appellants $750.00 for future damages to and the unlawful use of appellants’ property.

On March 3, 1975, Freshour Construction Company entered into a written lease with appellants which authorized Freshour to “quarry, crush, remove, ship and sell” stone from an eighty (80) acre tract of land owned by appellants. Freshour agreed to pay 10$ per cubic yard for all stone removed.

Freshour was granted three years, from the date of the agreement, to complete the operation. However, paragraph 9 of the agreement gave Freshour sixty (60) days, after the termination of the agreement, to remove “all property, equipment, facilities, or improvements belonging to the lessee.”

Sometime in March, 1975, Freshour contracted to sell the Highway Department 18,900 cubic yards of crushed stone for $69,432.00. In accordance with the Department’s policy, Freshour was granted stockpiling privileges. Consequently, the stone sold to the Department was removed as the Department’s needs required. At the end of the three year term, the Department had approximately 3,943 yards of the crushed stone stockpiled on appellants’ lands. The value of the stone was estimated at $16,000.00.

Sixty (60) days after the termination of Freshour’s lease, appellants barricaded the entrance to their premises precluding the Department from removing any more stone.

Appellee petitioned the Searcy Chancery Court for an injunction enjoining appellants from converting the stone to their own use; and that appellants be directed to allow appellee to remove the chat.

Appellants argue that the Department is an assignee of Freshour and, therefore, the Department is subject to all of the terms and conditions contained in the written agreement between appellants and Freshour; that accordingly, appellee had sixty (60) days from the termination of the contract to remove all of its crushed stone and the failure to do so precludes appellee from asserting any right to the chat. Moreover, appellants contend that Freshour expressly informed them that any crushed stone remaining on their lands at the end of the sixty (60) day grace period belonged to them.

The trial court made the following findings:

“8. That the gravel remaining upon the defendants’ lands was the property of the Highway Department, and not Freshour’s, it having already sold said gravel to the Highway Department.
“9. That inasmuch as said gravel was the personal property of the Highway Department it did not revert to the defendants under the terms and conditions of their lease with Freshour.
“10. That the Highway Department has used the property of Mr. and Mrs. Pemberton for the purpose of stockpiling gravel, or gravel was permitted to remain on their land without proper rental payments, and that they are indebted to Mr. and Mrs. Pemberton for the use and storage of said gravel.”

It is settled law that a proceeding on appellate review from a chancery court is reviewed de novo. It is equally settled that an appellate court will affirm the chancellor where his findings are supported by a preponderance of the evidence. Lenderman v. Lenderman, 266 Ark. 1000, 588 S.W. 2d 707 (Ark. App. 1979); Moore v. Smith, 255 Ark. 249, 499 S.W. 2d 634 (1973).

It is undisputed Freshour paid appellants for all the stone extracted from their property; and that the Highway Department paid Freshour $69,432.00 for 18,900 cubic yards of stone of which approximately 3,900 yards still remain upon appellants’ property. While it is conceded that appellants made no agreement with the Highway Department for stockpiling privilege and never dealt directly with the Department in the sale of stone, appellants readily admit that during the term of Freshour’s lease, the Department entered upon appellants’ permises and removed stone whenever the need arose. Moveover, appellants further concede that they had seen a State Highway Department sign near the pile of stone claimed by appellee identifying the chat as State’s property.

Under the written lease between appellants and Freshour, Freshour had the right to “sell” all the crush stone taken from appellants’ lands. The only condition imposed was that Freshour “shall make a monthly report to lessors . . . of all stone sold. . . . Such reports shall be accompanied by a check in the payment of the royalty due on the stone sold, or hauled from the property.”

It is settled law that where minerals are extracted under a lease, the title to the minerals vests absolutely as personal property in the lessee as soon as they are mined and removed from their original location. 58 C.J.S. Mines and Minerals, § 177, page 379; Quality Coal Company v. Guthrie, 203 Ark. 433, 157 S.W. 2d 756 (1941); Pasteur v. Niswanger, 226 Ark. 486, 290 S.W. 2d 852 (1945); Osborn v. Arkansas Territorial Oil & Gas Company, 103 Ark. 175, 146 S.W. 122 (1912).

Ark. Stat. Ann. § 85-2-106 (Add. 1961), provides:

A ‘sale’ consists in the passing of title from the seller to the buyer for a price.

An assignment, on the other hand, is essentially a delegation of the performance of the duties of an assignor to another who, by its acceptance, promises to perform those duties. This promise is enforceable by either the assignor or the other party to the original agreement. See: Ark. Stat. Ann. § 85-2-210 (Add. 1961). We are persuaded that the transaction between Freshour and the Arkansas Highway Department was clearly a sale and not an assignment. There is no evidence that the Highway Department either intended or actually engaged in any mining operation on appellants’ property.

Appellants argue that since appellee did not remove the stone within sixty (60) days from the termination of the lease held by Freshour, the chat became the property of appellants pursuant to Freshour’s promise. The difficulty we encounter in giving any weight to this purported agreement is the fact that Freshour could not barter away the property rights of the appellee who was not a party to such an arrangement. Of course, Freshour could make such an arrangement with reference to any stone it owned.

Finally, we hold the action of the trial court in awarding appellants $750.00 for future damages and the unauthorized use of their property for three years is supported by a preponderance of the evidence. Appellee’s appraiser testified that while the property was essentially pasture land, the property had a rental value of $50.00 per year. The appraiser also testified that he could not predict when grass would grow back on the area where the stone was stockpiled.

Affirmed.


author: David Newbern, Judge.

text:
    ALLIED INSURANCE CO. v. STATE of Arkansas and MIDLAND INSURANCE CO. v. STATE of Arkansas
    CA 79-237 & CA 79-238
    597 S.W. 2d 115
    Court of Appeals of Arkansas
    Opinion delivered March 26, 1980
    Released for publication April 16, 1980

      Jones, Gilbreath & Jones, for appellants.

      Steve Clark, Atty. Gen., by: E. Alvin Schay, Asst. Atty. Gen., for appellees.
   David Newbern, Judge.

We have combined these two cases for disposition on appeal because their facts are essentially identical, and the same basic questions are presented in each. The appellants ask us to hold that the bond of Patricia Parker in each case should not have been ordered forfeited by the court because her mental illness prevented her appearance. We are asked, in the alternative, to hold the bond forfeitures should be reduced because they are excessive. We hold the statute which makes forfeiture improper on failure to appear because of mental illness requires proof not presented by the appellants. However, we agree the bond forfeitures were excessive, and we reduce them to the extent we deem them unjustified by the records in these cases.

On December 3, 1976, Patricia Parker was charged in Sebastian County Circuit Court by information with theft by deception. Bail bond was set at $15,000. The bond was supplied by Taylor Bonding Company and underwritten by appellant Midland Insurance Co. Trial was set for November 7, 1978, and the bond was ordered forfeited when Ms. Parker failed to appear. Taylor Bonding Company was given notice of the trial date, but appellant Midland was not.

On August 5, 1977, the same Patricia Parker was charged by information in Sebastian County Circuit Court with forgery. Bail bond was again supplied by Taylor Bonding Company and was set at $10,000. This bond was underwritten by Allied Insurance Company which was owned by Midland Insurance Company. A hearing to determine if the accused had the benefit of counsel was set for November 20, 1978, and the bond was ordered forfeited when Ms. Parker failed to appear. Appellant Allied had five days notice of the hearing date.

Ms. Parker was ultimately returned to the court in Sebastian County after she had, on March 12, 1979, voluntarily surrendered herself to Pulaski County authorities to face entirely separate charges against her there. The appellants, Midland and Allied, moved to set aside and discharge the bond forfeitures. At hearings held on June 5, 1979, the appellants presented evidence of their effort to apprehend the defendant. Their evidence showed they sent their regional manager to Fort Smith from Indianapolis to investigate the matters. The manager’s testimony detailed his efforts which were mostly telephone calls attempting to locate the accused and notifying other bondsmen of her description and the fact she was wanted. The companies offered a $3,000 reward which, of course, was not collected because of Ms. Parker’s voluntary surrender. The manager testified he spent $336.00 on the case plus fifteen hours of his time and the cost of phone calls, the amounts of which were not specified.

Also presented by the appellants at the hearing was the testimony of a clinical psychologist to the effect that Ms. Parker was the victim of a serious mental illness including a multiphasic personality. The purpose of this testimony seems to have been to prove the accused was prevented from appearing at the hearings because of her mental disability.

1. Mental Disability

Ark. Stat. Ann. § 43-733 (Repl. 1977), provides, in part:

No forfeiture of any appearance or bail bond shall be rendered in any case where a sworn statement of a licensed court appointed physician is furnished the court showing that the principal in such bond is prevented from attending by some physical or mental disability, . . .

There was no evidence presented showing the clinical psychologist who testified in this case was “court appointed.” There was no showing that this defendant was confined due to her mental illness. In Tri-State Bonding Co. v. State, 263 Ark. 620, 567 S.W. 2d 937 (1978), our supreme court reaffirmed its previous holdings that for mental illness of the prinicpal to be sufficient to relieve the bondsman, the principal must be confined and beyond the power of the bondsman. Although that case did not interpret the statute on which these appellants rely, it should be potent authority for a definition of the word “prevented” as it appears in the statute.

We need not discuss whether a clinical psychologist is a “physician,” because we hold the statute does not excuse these sureties for the reasons already given.

2. Excessive Forfeitures

Tri-State Bonding Company v. State, supra, dealt with many of the considerations which come to bear in determining whether a bond forfeiture is excessive. There is no need to state all of them here, but we recognize the main ones to be assurance that the forfeiture is reduced to allow the bondsman to recover expenditures made in attempts to apprehend the defendant; compensation of the state for expenditures resulting from delay in appearance of the defendant; and maintenance of forfeitures in a range which will assure continued commercial availability of the bail bonds and yet assure that sureties continue to try to meet their obligation to produce defendants on time.

Ark. Stat. Ann. § 43-729 (Repl. 1977), gives the trial court discretion to remit all or part of the bond if the defendant is surrendered or arrested. The Tri-State case presents a good example of the ad hoc manner in which cases like these have been approached. There, seven separate forfeitures were considered, and the reductions and refusals to reduce varied with the circumstances without any particular element controlling.

Applying the considerations stated above to the Midland appeal, we hold the trial court abused its discretion in forfeiting more than $5,000 of the $15,000 bond. See, Central Casualty Co. v. State, 233 Ark. 602, 346 S.W 2d 193 (1961), where a $7,500 forfeiture of a $15,000 bond was reduced to $750 because of the accused’s good faith excuse for failure to appear, and Craig and Schaaf v. State, 257 Ark. 112, 514 S.W. 2d 383 (1974), where the supreme court held forfeiture in excess of $2,500 of a bond of $7,369.23 was an abuse of discretion because although the bondsman allowed the accused to leave the state, the bondsman succeeded in apprehending the defendant. In both of the cases before us, we consider the evidence of the mental illness of the defendant, which was apparently unknown to these sureties, to be relevant to their lack of control of the situation, although as earlier discussed, it gave them no statutory excuse. We also consider that it was not the efforts of these appellants which brought the accused to justice. In the Midland appeal, the state undoubtedly was out some expenses of preparation for trial, but they were not shown to be in excess of $430 which was paid out for witness and juror fees. Altogether, we do not believe they could have exceeded $5,000.

With respect to the Allied appeal, we find a significant relationship to Smith v. State, 265 Ark. 137, 577 S.W. 2d 411 (1979), because there, as here, the hearing at which the accused failed to appear was one to ascertain whether the accused had counsel. There were, however, other factors including an inaccurate notice to the accused that he should appear for arraignment (he had already been arraigned) and evidence of the accused’s unsuccessful attempt to have attorneys appear for him. The supreme court held any amount in excess of $1,000 of a $5,000 bond forfeiture which had been imposed in the trial court was excessive. Comparing, as best we can, the facts in the Allied appeal with those recited, we hold the forfeiture of the Allied bond should not exceed $3,-333.33.

Affirmed as modified.


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    Harold A. THOMAS and Rita M. THOMAS v. Franklin A. POFF, d/b/a POFF REALTY; Robert SHOCKLEY, d/b/a/ SHOCKLEY REALTY; and Bob McDonald
    CA 79-246
    597 S.W. 2d 838
    Court of Appeals of Arkansas
    Opinion delivered March 26, 1980
    Rehearing Denied April 30, 1980
    Released for publication April 30, 1980

      J. Sky Tapp, for appellants.

      E.T. Smitherman and Lane, Muse, Arman & Pullen, by: Donald C. Pullen, for appellees.
   David Newbern, Judge.

In this case we hold a summary judgment finding the appellants liable for a real estate commission was appropriate, there being no question of fact outstanding in view of deemed admissions by the appellants and unrebutted affidavits of the appellees as well as a lack of timely objection or opposition to the motion. A subsidiary holding is that matters are deemed admitted if responses to a request for admissions are not signed by the parties as opposed to their counsel.

The appellees brought suit against the appellants for a 10% commission specified in a listing contract pursuant to which the appellee Poff agreed to act as agent for the sale of the property. The appellees submitted a request for admissions that the listing contract setting forth the 10% fee requirement was made; that appellee McDonald introduced Wayne Foster to the appellants and showed Foster the appellants’ property; and that the appellants sold the property to Foster for $275,000.

Although the counsel for the appellants filed timely responses to the request for admissions, denying all but the existence of a listing contract, the matters as to which the request was made were deemed admitted because the response was signed only by the appellants’ counsel and not by the parties of whom the admissions were sought. We hold the trial court was correct in deeming those matters to be admitted. Ark. Stat. Ann. § 28-358 (a) (Supp. 1977). B. & P. Inc. v. Norment, 241 Ark. 1092, 411 S.W. 2d 506 (1967); Universal Life Ins. Co. v. Howlett, 240 Ark. 458, 400 S.W. 2d 294 (1966); Young v. Dodson, 239 Ark. 143, 388 S.W. 2d 94 (1965). A.R. Civ. P. 36(a), which superseded the statute cited above after this case was heard retains this absolute requirement that to avoid having the matters in the request deemed admitted, the responses must be sworn to by the responding parties.

The appellees made their summary judgment motion on the basis of these deemed admissions and affidavits by appellees McDonald and Shockley in which they explained the multiple listing arrangement pursuant to which they showed the property listed by appellee Poff to Foster.

Notice of a hearing set for June 25, 1979, on the motion for summary judgment was sent to the appellants in care of their counsel. The notice was mailed on June 7, 1979. Neither the appellants nor their counsel appeared at the hearing, and the court granted the motion. The judgment was for $27,500.

The appellants argue there was an issue of fact remaining to be decided and thus the trial court should have refused to grant the summary judgment. While our perusal of the record impresses us that no such issue remained outstanding, we need not reach that point. At no place in the record does it appear that his argument was presented to the trial court, despite ample opportunity to have done so. Thus, we will not consider it here. Thomas v. Committee “A” Arkansas State Plant Board, 255 Ark. 517, 501 S.W. 2d 248 (1973); Turkey Express, Inc. v. Skelton Motor Co., Inc., et al, 246 Ark. 739, 439 S.W. 2d 923 (1969).

We would be satisfied to end this opinion at this point but for appellants’ counsel’s assertion that his clients are being denied “at least a chance to present their side of the case,” and his assertion here, although apparently not below as the record does not show it, that the failure to appear was “merely a mistake in the date.” The appellants’ counsel concludes his brief by saying:

To deny the Appellants their day in Court on technical grounds will only further alienate the law from the people, a breach which is widening daily.

Although there is nothing in the record about it, appellants’ counsel argues his clients were out of the country and thus unavailable to sign the response to the request for admissions. Had the appellants needed more time to verify and sign their response, they could have asked for it. Ark. Stat. Ann. § 28-360 (Repl. 1962). See also, A.R. Civ. P. 26 (c). Had they wanted to respond to the motion for summary judgment, they could have done so by presenting affidavits or discovery responses of their own. Ark. Stat. Ann. § 29-211 (Repl. 1962 and Supp. 1977). See also, A.R. Civ. P. 56. They also could have appeared at the hearing, of which they do not deny having had notice, to argue against the motion.

If the law and the justice system were administered without rules, we would have adjudication at the whim of the adjudicators, a miasma which even the most ill-disciplined could not tolerate. The strength of our legal system comes largely from the fact that it is a system, and to refuse to require order in the manner of reaching fair dispositions of disputes would be to kick aside a major peg of the law’s contribution to our civilization. True, our rules are complex, and perhaps too much so for lay persons. Thus we have a need for lawyers who are familiar with and able to apply them. In our view, the “justice” which the appellants’ counsel insists his clients are being denied requires even-handed adherence to procedural requirements. Whimsical departures from them in the service of the needs of those who refuse to abide by the rules would do ultimate and universal disservice to the cause of fairness for all.

Affirmed.


author: Ernie E. Wright, Chief Judge.

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    William E. CLARKE et ux v. MONTGOMERY COUNTY et al
    CA 79-255
    597 S.W. 2d 96
    Court of Appeals of Arkansas
    Opinion delivered April 2, 1980
    Released for publication April 23, 1980

      Gardner & Gardner, for appellants.

      Shaw, Shaw & Tucker, by; Robert L. Shaw and Glen G. Langston, for appellees.
   Ernie E. Wright, Chief Judge.

Appellants are the owners of approximately 160 acres of land bordering the North bank of the Ouachita River near Oden in Montgomery County, Arkansas. In May, 1977, Montgomery County filed suit in the Chancery Court alleging the appellants have been obstructing and interfering with the public’s use of a long established county road used by the general public traversing said land, and seeking injunctive orders against interference with the road. In March, 1978, Carl Smith and other residents of Montgomery County filed a separate suit in the same court alleging the road in question is a county road, that it has been used adversely by the general public under claim of right for a hundred years or more and that the public’s right to the road has ripened by prescription. The appellants filed an answer in the last suit denying the road is a public road or that the appellees have acquired the right to use the road by prescription. No answer or other pleading was filed by the appellants in the suit filed by the county. The cases were consolidated for trial, and at the conclusion of the trial the court found the road in question, not exceeding twenty feet in width, extending across appellants’ land to the North bank of the Ouachita River is a public road, a part of the county road system, the plaintiffs and general public have used the road adversely under claim of right for many years, have acquired prescriptive rights in the road, and the road has never been abandoned. The court also found the general public had for many years adversely used a parking area adjacent to the river and road for many years, and the public had acquired a prescriptive right to use such parking area. Appellants were enjoined from obstructing or interfering with the use of the road and parking area. On appeal appellants contend appellees failed to meet their burden of proof establishing prescriptive rights in the road or parking area.

There was evidence the road in question had existed for more than fifty years extending from an established county road southerly across the land owned by appellants to the Smith Ford across the Ouachita River, that the road had been open, used adversely by the general public and that for more than seven years last past the road had been graded by the county. The ford is not used as much as in prior times because a bridge across the river was built nearby. The road is used by appellants for access to their home and continues on to the river. People use the road to go to the river for swimming, picknicking and putting boats in the river and taking them out. The county judge testified he never asked permission about maintaining the road and it was being graded by the county before he took office in January, 1971. the county graded down to and across the river. There was never objection to the county maintaining the road until 1976 when appellant, Clarke, placed a temporary gate across the road, and the county judge required him to take it down. There is no evidence the county graded any parking area adjacent to the road and river.

There was evidence on the part of appellants that the use of the road by the public and the grading by the county was permissive, but the chancellor on conflicting evidence found the road had been used openly and adversely for many years, had been worked by the county and that it was a public road established by prescription. The chancellor’s finding as to the road is not contrary to the preponderance of the evidence, and therefore, we affirm as to the road.

As to the finding and holding of the court that the public had acquired prescriptive rights in a parking area adjacent to the river and road, the evidence of adverse use of the parking area was weak and there was no evidence the area was ever maintained by the county. Regardless of the weight of the evidence as to the parking area, we conclude there is no basis in law for decreeing the public has acquired prescriptive rights in appellants’ land for parking or for any purpose other than the right to use and maintain the road in question. Prescriptive public easement rights are limited to public thoroughfares used for travel purposes, and we find no authority for extending public prescriptive rights to a parking area used sporadically by members of the public. We do not find that the Arkansas Supreme Court has addressed the specific question. In the case of Jones v. Scott, 256 Ark. 653, 509 S.W. 2d 381 (1974), the trial court had decreed the public had prescriptive rights in a riparian area outside the road on a non-navigable stream for launching of boats. The court reversed on the weight of the evidence. However, the New York Supreme Court in Pearsall v. Post, 20 Wend. 111, dealt extensively with a similar question involving the use of certain land surrounding a road right-of-way adjacent to a river and referred to as a landing. The court held prescriptive rights of the public are limited to avenues of travel and do not exist as to a landing other than the right of transit as a road. In holding no such prescriptive right in the public is recognized in a landing, the court distinguished cases establishing adverse claims of ownership by private individuals. The court said:

A landing, even though for the purpose of direct transit, is more than a highway. The relative rights, both of owner and and passenger, in a highway, are perfectly understood and dealt with by the law. Subject to the right of mere passage, the owner of the soil is still absolute master. ... It is enough, however, that we are thrown upon the common law, which does not recognize any such prescriptive easement for the benefit of a whole people ... a rule of law, which should admit the possibility of turning such enjoyment into prescriptive and absolute right on the part of the public, would open a field of litigation, which no community could endure.

The decree is modified to delete the determination appellees and/or the public have any easement rights upon appellants’ land other than the road easement. We point out, however, this holding does not impair the traditional rights the law recognizes the public as having in the use of a navigable stream. The riparian owner along navigable streams holds only to the high water mark, and the title to the bed of the stream is in the State of Arkansas. Owen v. Johnson, 222 Ark. 872, 263 S.W. 2d 480 (1954).

Affirmed as modified.


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    T. C. ASHCRAFT et al v. Joe HUNTER
    CA 79-352
    597 S.W. 2d 124
    Court of Appeals of Arkansas
    Opinion delivered April 2, 1980
    Released for publication April 23, 1980

      Shackleford, Shackleford, & Phillips, by: Norwood Phillips, for appellants.

      Odell C. Carter, for appellee.
   Ernie E. Wright, Chief Judge.

This is an appeal from a circuit court judgment affirming an award to appellee by the Workers’ Compensation Commission.

The claimant sustained an admittedly compensable injury arising out of the course of employment with the respondent employer in June, 1972. The claim for benefits was accepted by respondents without the filing of a claim with the commission. Claimant was paid compensation benefits, and was released by his doctor in December, 1972. He was hospitalized in 1973 for a condition arising out of the injury, and again the respondents accepted the claim and paid the hospital, medical and related expenses. The last check for medical services was issued Sepember 26, 1973. The claimant was again hospitalized for a condition arising out of the injury in August, 1974. Prior to September 26, 1974, bills for medical treatment, hospitalization and medications were submitted to the Chambers Claim Service, agent for respondents that had handled all claims incident to the injury from the inception. No action was taken on the claims until after September 26, 1974, one year after the voluntary payment of the last claim.

Mr. H.R. Whatley testified on behalf of the respondent, Rockwood Insurance Company, that he was the owner of the Chambers Claim Service, and was claims service agent for the insurance carrier. He regularly issues drafts on the respondent carrier in the processing of claims. He had routinely handled all claims incident to the injury, and issued drafts for all payments that had been made. He was aware that no formal claim had been filed with the Commission. The last disability compensation was paid to claimant through June 17, 1973, and the last draft for medical services was issued September 26, 1973. There was evidence the 1974 claims were mailed to Chambers Claims Service on September 19, 1974, and Mr. Whatley testified he would normally have received them within three days, but he did not make note of the date he received them. He did not deny they were received prior to September 26, 1974. Mr. Whatley stated it was possible some one from his office may have advised the hospital the claim was covered, as this “happens all the time.”

On October 31, 1974, Mr. Whatley gave the claimant notice the carrier was denying liability by invoking the one year statute of limitations, Ark. Stat. Ann. § 81-1318 (b) (Repl. 1976), which bars a claim for additional compensation unless it is filed with the Commission within one year from the date of last payment of compensation or two years from the date of injury, whichever is greater. The statute provides certain exceptions not here relevant.

After being notified of denial of liability, the claimant, who was not previously represented by counsel, obtained counsel and filed claim with the Commission on November 5, 1974.

The administrative law judge ruled the claim was barred by limitations on the ground the claim was not filed with the Commission within one year from the date of the last payment of compensation, and dismissed the claim.

On appeal the Commission found the claims in question were received by the Chambers Claim Service before the expiration of one year from the date of last payment by respondents, that the claims were received in the same manner as prior claims had been received and accepted without a formal filing with the Commission, and held the actions of the respondents’ representative had misled the claimant to his detriment in not filing a formal claim with the Commission. The Commission held under the circumstances respondents were not permitted to invoke the statute of limitations.

The Commission pointed out that Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W. 2d 468 (1964) approved the following doctrine as applicable to Workers’ Compensation statutes:

These Compensation Acts are entitled to and have universally received a liberal construction from the courts. The humanitarian objects of such laws should not, in the administration thereof, be defeated by overemphasis on technicalities — by putting form above substance.

We conclude there is substantial evidence to support the findings of the Commission, and that the Commission was correct in holding that under the circumstances the claim is not barred by limitations.

We do not find that the Arkansas Supreme Court has passed directly on whether a respondent may be said to have waived or to be estopped from asserting the bar of limitation statute because of the late filing of a claim for additional compensation. In some states there are statutes permitting the excusing of late claims for good cause or mistake. Arkansas has no such statute, so the issue is whether the appellants waived the statute of limitations or are estopped to invoke the statute.

Larsen, § 78-45, indicates that where a claimant is led to believe by the statements or actions of the respondent that a formal claim is not necessary, the lateness of filing is ordinarily excused. In many of the cases from other jurisdictions there cited, there was evidence that the respondent or agent had made statements to the effect the claim was filed or not to worry about the time limit. Such specific statements are not here present. However, we do have undisputed evidence of a course of action on the part of the authorized agent for the appellant insurance carrier of voluntarily accepting the claim as compensable in 1972, paying disability benefits through June 17, 1973, paying hospital and medical benefits in 1972 and again paying further hospital and medical benefits for a recurrence of the medical problem in 1973, the last such voluntary payment being September 26, 1973. All of this course of action was without the filing of a formal claim with the Commission, and the carrier’s representative was aware no formal claim had been filed. Also, the carrier’s representative was aware the claimant was not represented by counsel.

We conclude the course of action of the carrier and its representative conveyed the posture of the carrier quite clearly that the filing of a formal claim was not necessary, and that claims for appropriate compensation benefits would be processed without the formality of filing formal claims with the Commission. The claims for additional benefits now in issue were routinely submitted to the carrier’s same claims agent who had handled all of the appellee’s claims arising out of his 1972 injury, and were received by the agent before the expiration of the one year statute of limitations after the date of payment of the last prior claim. The agent notified claimant the claim was rejected on the basis of limitation after the expiration of the one year period.

We hold the respondents are estopped by their course of actions from invoking the benefit of the statute of limitations. 12 Schneider, Workmens’ Compensation Law, § 2376, states the general rule to be that representations or conduct of the employer which reasonably misleads the employee into believing it is unnecessary to file his claim within the required statutory period, operates to estop the employer from relying on the statute of limitations.

We believe the case of National Lead Co. v. Workmens’ Compensation Appeals Board, 251 Cal. App. 2d 673, 60 Cal. Reptr. 41 (1967), announces a sound rule. There the relevant facts are comparable to the present case, and the court concluded:

Without any application, the employee had been paid temporary disability for 16 months and had been furnished medical treatment for more than 3 years, including an 8-month period after retraining and reemployment by another concern. This unforced furnishing of medical treatment continued without question through July 26, 1960. On that day, his sense of continuing availability of medical care from the employer was kept alive by the doctor’s direction to return when he felt more pain. Thus there is evidence to support the board’s finding of estoppel. The one year period for filing formal application did not begin to run before March of 1964, the earliest possible date for inferring any question by the employer of applicant’s right to continue care.

In the present case the effect of the Commission’s holding was that appellants are estopped by their course of actions from invoking the statute of limitations. We agree.

The circuit court was correct in affirming the decision of the Commission, and we affirm the judgment of the circuit court.