text:
    Albert WILLIAMS and Elvis JOHNSON v. NATIONAL YOUTH CORPS IN SCHOOL PROGRAMS and HARTFORD INSURANCE COMPANY
    CA 80-38
    600 S.W. 2d 27
    Court of Appeals of Arkansas
    Opinion delivered May 21, 1980
    Released for publication June 11, 1980

      Brockman & Brockman, by: C. Mac Norton, for appellants.

      Bridges, Young, Matthews, Holmes & Drake, for appellees.
   James H. Pilkinton, Judge.

This is a workers’ compensation case. On December 12, 1973, Albert Williams and Elvis Johnson were injured in a motor vehicle accident. At the time of the occurrence, both Williams and Johnson were students attending White Hall Senior High School and were participating in a work-study program which was funded by the National Youth Corps in School Programs, commonly known as “NYC.” NYC is a federally funded project which attempts to assist economically deprived youths in securing employment. In order to carry out the NYC program, a local governmental unit, in this case the White Hall School District of Jefferson County, was selected to supervise and administer a work-study program within the school system. Under the program the local school district selects the young people who are to be enrolled, and the participants work a maximum of ten hours per week while attending school. Albert Williams and Elvis Johnson were among those selected by the White Hall School District to participate in the program. NYC provided a counselor and the payroll funds. The White Hall School District provided the supervisor and the work.

Williams and Johnson both had been a part of the NYC program for several years. The participants in the program were required to work a total of ten hours a week but the time that this work was specifically done was left up to the school district. Williams and Johnson worked two hours a day, usually after school, for five days a week, at minimum wage. They lived from five to six miles from the White Hall School and rode the school bus to school each day. They would clean up classrooms, carry out trash, and perform similar tasks under the NYC program. As the school bus ran before the work duty was usually performed, Williams and Johnson would ride home from school in a truck owned and operated by the White Hall School District. This truck was operated by a Mr. Bates, a full-time employee of the school, who was allowed to drive the truck home each day. Williams and Johnson lived near the Bates home at Redfield and rode home on this particular truck. The gasoline for the truck was furnished by the school district, and the superintendent of schools was aware of the fact that these two students and other parties in the NYC program rode home in the truck each evening.

Standing alone, the mere fact that the accident occurred while appellants were riding in a vehicle owned by the White Hall School District would not be sufficient to support a finding of compensability. Appellees correctly point out that before a finding of compensability can be properly made, it must be determined by the commission that the injury of the appellants occurred in the “course of employment.” In dealing with this question, the courts have developed a distinct body of law pertaining to “going to and from work.” See 1 Larson, Workmen’s Compensation Law, § 15 (1978). The general rule is that injuries which occurred while an employee is going to or from work are not compensable. The reason for that particular rule is that all persons, including employees, are subject to the recognized hazards of travel to and from work in a vehicle, generally referred to as the “street risk doctrine.” There are many exceptions, however, to the “going and coming” rule. See Comment, Workmen’s Compensation: The “Going and Coming Rule” and Its Exceptions in Arkansas, 21 Ark. L. Rev. 414 (1967). Hunter v. Summerville, 205 Ark. 463, 169 S.W. 2d 579 (1943).

After a hearing, the Administrative Law Judge dismissed the claims for workers’ compensation benefits filed by the appellants due to the application of the “going and coming” rule. On appeal, the Arkansas Workers’ Compensation Commission found that NYC and the school district were engaged in a joint undertaking, and that both claims were compensable as a result of an exception to the “going and coming” rule. On appeal to the circuit court that court reversed the findings and award made by the full commission and dismissed both claims. The circuit court held that the appellants did not come within any exception to the “going and coming” rule. The case now comes before us on appeal from the opinion of the Circuit Court of Jefferson County.

It was the duty of the commission to draw every legitimate inference possible in favor of the claimants and to give them the benefit of the doubt in making factual determinations. Brower Manufacturing Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950 (1972). Further, the commission in considering a claim is required to follow a liberal approach and, as stated above, draw all reasonable inferences favorable to claimant. Holland v. Malvern Sand and Gravel Co., 237 Ark. 635, 374 S.W. 2d 822 (1964). The same rules apply in determining whether the accident did, in fact, grow out of and occur within the course of the employment. Cox Brothers Lumber Co. v. Jones, 220 Ark. 431, 248 S.W. 2d 91 (1952), Brooks v. Wage, 242 Ark. 486, 414 S.W. 2d 100 (1967). See also Tinsman Manufacturing Company, Inc. v. Sparks, 211 Ark. 554, 201 S.W. 2d 573 (1947).

On appeal a court’s inquiry is limited to determining whether the decision of the Arkansas Workers’ Compensation Commission is supported by substantial evidence, and in so determining, courts are required to view the evidence in the light most favorable to the decision of the commission. St. Michael Hospital v. Wright, 250 Ark. 539, 465 S.W. 2d 904 (1971). Doubtful cases are resolved in favor of claimant. Cooper Industrial Products, Inc. v. Worth, 25 6 Ark. 394, 508 S.W. 2d 59 (1974). Thus, in disposing of this appeal, this court is only concerned with whether there is substantial evidence in the record to support the findings and award of the commission. It is not within this court’s province to determine the preponderance of the evidence. Mounts v. Bechtel Corp., 256 Ark. 318, 507 S.W. 2d 99 (1974). Purdy v. Livingston, 262 Ark. 575, 559 S.W. 2d 24 (1977).

Where joint employment occurs both employers are liable for workers’ compensation. Dillaha Fruit Co. v. LaTourrette, 262 Ark. 434, 557 S.W. 2d 397 (1977). See also 1C Larson, Workmen’s Compensation Law, § 48.40 (1980). There is evidence in this record to support the finding of the commission that Mr. Charles E. Moore, the NYC representative, and Mr. Julius Brown, superintendent of the White Hall School District, entered into a joint contractual undertaking between the White Hall School District and the National Youth Corps to employ the claimants. There is no question that coverage for workers’ compensation was required by the federal statute, 29 U.S.C.A. § 983(6), as was brought out by the testimony of Mr. Moore. The commission found that the burden of compliance with the federal requirement of supplying workers’ compensation rested with the appellee NYC In school Program, and that both parties understood that such coverage was, in fact, provided by Hartford Insurance Company, the appellee carrier herein. We cannot say that such finding it not supported by substantial evidence.

Both Mr. Brown and Mr. Moore stated that the project was a joint venture as the work afforded benefits to the White Hall School District as Johnson and Williams were used in cleaning classrooms and in doing various chores incidental to keeping the grounds and buildings tidy, which was a direct benefit to the school district. There is evidence in the record to show that this project was undertaken by both parties, and that a mutual relationship was established by agreement. The superintendent of schools testified that he knew the appellants were riding in the White Hall’s vehicle operated by Mr. Bates, as they lived in the same geographical area where Mr. Bates resided. Mr. Fred Harper, who was the immediate foreman over the appellants and whose responsibility it was to see that they performed the work, also testified that when Johnson and Williams worked after school, and the school bus had departed, then it was necessary for the appellants to ride home with Mr. Bates. The evidence shows that Mr. Bates had the right to take the school district truck home with him, and that he used the truck to take care of other business on behalf of the school district between White Hall and Redfield, Arkansas, where Mr. Bates lived. The testimony reveals that Mr. Bates, on the date the collision occurred, had stopped at Plainview, which is two or three miles south of where the collision occurred, and had picked up other students who were working in the National Youth Program at Plainview Elementary School. It was his job to supervise and see that the Plainview School buildings were cleaned as well as the White Hall school buildings. The record also establishes that the only work Johnson and Williams had done on Decmeber 12, 1973, the date of the accident, was after school; and Mr. Bates left early on the date of the collision. Both Mr. Brown and Mr. Harper testified that Mr. Bates was on White Hall School time and payroll until he reached his home at Redfield. It is not questioned that the appellants, while returning to their homes on December 12, 1973, sustained severe injuries. Appellant Williams had to undergo surgery and amputation of a portion of his left leg, and appellant Johnson sustained various facial injuries. Mr. Bates, who was driving the White Hall School truck at the time of the accident, was killed in the collision. Appellant Johnson testified that he had made specific arrangements with Mr. Bates to ride so he would have a way home as he had no other means of transportation and could not work in the NYC program unless he could ride home with Mr. Bates in the White Hall School truck. Appellant Williams testified he thought it was understood for all NYC students employed by White Hall School District at the time of the collision to ride home in the school district truck, which he did continuously. There is no question in this case that all of the students, who worked in the appellee NYC program and who were employed by the White Hall School District, made the return trip to their homes in the school’s truck; and that on December 12, 1973, they were the only students at White Hall participating in the NYC program. Appellant Williams stated it was customary for him to ride home with Mr. Bates every day he worked, and that this had been going on during the two-year period he was so employed. He further testified that Mr. Brown, Mr. Bates and Mr. Harper all knew definitely that he was using the truck to ride home, and it was a customary means of transportation.

As pointed out in Hunter v. Summerville, 205 Ark. 463, at 473, 169 S.W. 2d 579 (1943), a decision in any case of this type must depend upon the particular state of facts proved. The evidence in the case before us established that transportation home was necessary before the appellants could participate in the NYC program at the White Hall School; and that there was an implied undertaking by the school district to furnish this transportation, as well as a tacit acquiescence on the part of the school district in the custom of these NYC work-student participants riding home each evening in the school truck. Although a close issue of fact was presented to the Arkansas Workers’ Compensation Commission, we conclude that there was substantial evidence to sustain the findings and award made by the commission in favor of appellants. Hunter v. Summerville, supra. It follows therefore that the circuit court erred in not upholding the decision of the commission which had the duty to determine the facts, the judgment is, therefore, reversed and this case remanded with directions to reinstate and affirm the findings and order of the commission.


source: Caselaw Access Project

author: Marian F. Penix, Judge.

license: Public Domain

text:
    Thomas RONIO v. STATE of Arkansas
    CA CR 79-146
    600 S.W. 2d 31
    Court of Appeals of Arkansas
    Opinion delivered May 21, 1980
    Released for publication June 11, 1980

      R. L. Walloch, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fetvell, Asst. Atty. Gen., for appellee.
   Marian F. Penix, Judge.

Thomas Ronio, appellant, was found guilty by a jury of Manufacturing a Controlled Substance. He was sentenced to two years imprisonment and fined five thousand dollars. Ronio appeals.

Pursuant to a Search and Seizure Warrant, Ronio’s home and yard were searched June 5, 1979. Items seized were bags of marijuana and approximately 300 plants of marijuana. Ronio was charged with the crime of Manufacturing a Controlled Substance.

Ronio alleges he was not afforded a fair trial because of highly prejudicial statements made to the jury by the prosecuting attorney.

In his closing argument the prosecutor remarked he felt sorry for children who got the marijuana habit. The defense counsel objected stating “There is nothing introduced in evidence he has sold anything to children. This is highly prejudicial.”

The Court stated:

The jury will be admonished as I instructed you while ago closing arguments are not evidence. You can and should disregard anything. Mr. Brazil might say that is not based on fact.

There was no evidence presented at the trial as to sales of marijuana to children. We must determine whether Ronio was prejudiced by the remark made by the prosecutor.

In the case of Hall v. State, 264 Ark. 885, 576 S.W. 2d 178 (1979), the Deputy Prosecuting Attorney, in his argument to the jury, stated that heroin is the worst of drugs and made reference to the deterioration of the community due to its young people injecting heroin into their bodies. The accused, who was charged with a single sale of heroin, moved for a mistrial. In his concurring opinion, Justice Fogleman agreed with the majority that it is not prejudicial for an attorney to make comments which are a matter of common and general knowledge.

In the recent case of Hays v. State, 268 Ark. 701, 597 S.W. 2d 821 (Ark. App. 1980) the Prosecuting Attorney in closing argument mentioned the detrimental effects of marijuana upon high school students. Our Court held the comments to be essentially the mere expression of an opinion and not offered as statement of fact outside the record.

In the instant case, we find the Prosecutor’s remarks to be an expression of opinion regarding one of the harmful effects of illicit drugs and also a matter within the jury’s common and general knowledge.

We find no prejudice. The decision is affirmed.

Affirmed.


author: David Newbern, Judge. Ernie E. Wright, Chief Judge,

text:
    Charles PEACOCK, Jr. et ux v. Daniel C. BRYANT et ux
    CA 80-23
    600 S.W. 2d 413
    Court of Appeals of Arkansas
    Opinion delivered May 21, 1980
    Released for publication June 25, 1980
    Rehearing denied June 25, 1980

      Joe Peacock, for appellants.

      John C. Calhoun, Jr., of Owens, McHaney & Calhoun, for appellees.
   David Newbern, Judge.

In this case an action was brought seeking reformation of an instrument which embodied a contract for the sale of farm property. The chancellor held that the instrument was not ambiguous and that he could find “no fraud and no mistake of a type supporting reformation.” The appellant asks us to reverse, saying the chancellor erred in his finding “the contract was not ambiguous.” While we agree with the appellant that the contract was ambiguous, we affirm because the chancellor’s decision that there was neither fraud nor mistake sufficient to support reformation was not clearly erroneous. A. R. Civ. P. 52.

The appellants and the appellees entered negotiations for the sale of the appellees’ land. They had apparently agreed on a price of $700 per acre for 805 acres. The appellants were to assume the appellee’s indebtedness to the third parties, the Alsworths, on the land in an amount of over $220,000 leaving over $343,000 to be paid to the appellees by the appellants. The only real hurdle in the negotiations was the amount of the down payment to go to the appellees. The appellants wanted to pay $5,000, and the appellees wanted in excess of $70,000 as a down payment.

In the negotiations, which took place in 1978, the parties were apparently working with a draft contract. At least, they had before them figures showing the total price for the land at $700 per acre, and how much of the total would go to the appellees and how much to pay off the Alsworths. The appellants agreed to go as high as $15,000 for a down payment, and it was suggested, by whom we are not certain, that the appellees might accept if the appellants would, in addition to making the $15,000 down payment, make the payment which would become due from the appellees to the Alsworths on January 1, 1979- It was clear that the appellees were to remain on the land until the 1978 crops came in. The negotiations ended when the appellees agreed to accept the $15,000 down payment in exchange for the appellant’s agreement to make the January 1, 1979, payment to the Alsworths.

The lawyer who had represented the appellants in the negotiations drafted the instrument and presented it to the appellees’ lawyer for review. The crucial part of the instrument is as follows:

The Buyer agrees to purchase and the Seller agrees to sell the 805 acres described above for $700.00 per acre. The total purchase price of $563,500.00. $15,-000.00 of this price has been paid as an earnest money deposit, and the Seller agrees to accept and the Buyer agrees to pay an additional $20,000.00 on the date possession is relinquished by the Seller. The remaining balance of $528,500.00 shall be paid as follows: The Sellers, as of January 1, 1979, will owe to David B. Alsworth and his wife, Juanita Alsworth, the sum of $22\,7)09.12,plus accrued interest since January 1, 1978. The Purchasers will assume this indebtedness in favor of David B. Alsworth and Juanita Alsworth. [Emphasis added].

The appellees’ lawyer asked that the italicized words, “plus accrued interest since January 1, 1978,” be inserted, and they were.

The effect of this insertion was to raise the total purchase price by over $21,000, which was the amount of interest owed the Alsworths as of January 1, 1979- The figures in the instrument representing the per acre and total purchase price were not raised accordingly but were left as they had been stated at the outset of the negotiations.

The appellants insist they did not understand that by agreeing to make the January 1, 1979, payment they were agreeing to pay the interest in addition to the principal. The appellees insist that they would not have accepted the low, $15,000 down payment without this incentive which was, in effect, a farm year free of land expense in the event the appellants went through with the deal and made the January 1, 1979, payment to the Alsworths.

When it became apparent there was a misunderstanding, the appellees insisted that, if the appellants did not make the controverted payment, they would regard the $15,-000 down payment as forfeited and the contract at an end. The appellants made the principal and interest payment to the Alsworths and brought this suit to reform the instrument.

The appellants’ complaint alleged there was mutual mistake in that both parties intended the appellants would only be responsible for the “principal indebtedness” to the Alsworths due January 1, 1979, rather than “the indebtedness.” The instrument clearly became ambiguous with the insertion of the phrase requiring the appellants to make the 1978 interest payment to the Alsworths because, for example, it recited the per acre price of $700 which had actually become something over $721. However, there is no shred of evidence that the insertion was done by fraud or trick or otherwise inequitably. There is no doubt the appellants’ lawyer who drafted the instrument knew of and apparently approved the change. Evidence presented by the appellees, including their own testimony and that of the lawyer who represented them was ample to support their conclusion they intended that the appellants be liable for the 1978 interest and would not have made the deal otherwise.

If the appellants had brought an action in which the court would have been required to interpret the instrument, there might have been a closer question, but here the court was asked to reform it on the basis of mutual mistake. Certainly the chancellor’s decision that there is no mutual mistake is supported by the testimony presented by the appellees that they were not mistaken in the least as to what was required of the appellants.

In this de novo review we do not consider ourselves bound to one theory supporting the remedy sought, but we find there was no evidence of fraud or trickery or unilateral mistake coupled with inequitable conduct by the appellees. Absent evidence of one of those occurrences, shown by clear and convincing proof, we may not reform the instrument. Tomlinson v. Williams, 210 Ark. 66, 194 S.W. 2d 197 (1946); Mitchell Mfg. Co. v. Kempner, 84 Ark. 349, 105 S.W. 880 (1907).

Affirmed.

Wright, C.J., and Howard, J., dissent.

Ernie E. Wright, Chief Judge,

dissenting. I would reverse. There is no evidence the parties discussed a final sale price of any amount other than $700.00 per acre for the 805 acres or a total sale price other than $563,500.00. These were the figures specifically set out in the contract. In detailing how the $528,500.00 balance of the contract price was to be paid the language in the contract is as follows:

The remaining balance of $528,000.00 shall be paid as follows: The Sellers, as of January 1, 1979, will owe to David B. Alsworth and his wife, Juanita Alsworth, the sum of $221,309-72, plus accured interest since January 1, 1978. The Purchasers will assume this indebtedness in favor of David B. Alsworth and Juanita Alsworth and by virtue of this assumption, shall be entitled to all the interest, right, and equity of the Sellers, Daniel C. Bryant and his wife, Julia N. Bryant, under the terms of an agreement filed for record in the office of the Recorder of Deeds of White County, Arkansas, on the 19th day of December, 1974, at 12:50 p.m. This indebtedness in favor of the Alsworths in the sum of $221,309-72 carries an interest rate of 10% per annum. The remaining indebtedness of $307,190.28 shall be paid as follows: $221,309-72, the amount equal to the Alsworth indebtedness, shall carry an interest rate of 7% per annum. The balance of $85,880.56 shall carry an annual interest rate of 8 1/2%. This total amount of $307,-190.28, with the varying interest rate will be paid at $25,000.00 per year, plus accrued interest on the two separate amounts. This amount will be paid at $25,-000.00 per year plus interest for a period of 7 years. At the end of the seven year period, the balance will become due and payable in one lump sum with all interest accrued.

The clause, “plus accrued interest since January 1, 1978,” was inserted in the contract at the request of the attorney for appellees, as is italicized above to aid in the understanding of the problem. After the insertion of the clause no provision was made in the subsequent language calling for crediting the accrued interest on Alsworth’s mortgage debt to the deferred balance of the contract, and the language of the contract proceeds to spell out principal amounts to be paid by appellants aggregating the full amount of the deferred balance of the contract in the sum of $528,000.00 without regard to the accrued interest on the Alsworth debt, such interest being $22,120.97.

The complaint asks, “if necessary,” for a reformation of the contract to add the word principal in front of the word indebtedness in the sentence following the phrase added by appellees’ attorney on the ground the agreement as written contains a mutual mistake, and that it was the intent of the parties that appellants would assume only the principal debt to Alsworths leaving appellees responsible for the accrued interest.

To avoid a forfeiture appellants paid the accrued interest on the Alsworth debt in the amount of $22,120.97, but did so under protest.

Appellants prayed for reformation of the contract and an order of the court requiring appellees to credit the contract with the $22,120.97 paid by appellants for accrued interest owed by appellees on the Alsworth contract.

The court held the contract was not ambiguous, the evidence did not establish a mutual mistake and denied reformation.

As a result of the added clause above mentioned the payment provisions call for payment by appellants of more than the clearly stated total deferred balance of the contract, the excess being the accrued Alsworth interest.

There is no evidence in the record of any discussion between the parties of an increase in the sale price of the property, although there is evidence the attorney for appellees during negotiations privately told appellees the effect of the added clause would result in their receiving more than $700.00 per acre.

This being an appeal from the judgment of the chancery court the review is de novo. It is not necessary that the contract be reformed to achieve an equitable result. It need only be construed, and as appellants seek an order requiring the contract to be credited with accrued interest payment of $22,-120.97, the petition is sufficient to warrant the granting of appropriate equitable relief.

From reading the contract as a whole it is clear the most reasonable construction as to the intent of the parties is that the language inserted was not intended to change the sale price or the amount of the deferred balance. The sale price and the deferred balance are stated with clarity and precision. The language added to the contract at the instance of counsel for appellees coupled with the following payment provisions would seem to require appellants to pay the accrued Alsworth interest in addition to the stated deferred balance of the purchase price. Such provision is irreconcilable with the prior clearly stated sale price and the stated deferred balance. In my view reasonable persons in reading the contract would conclude the clearly stated sale price and deferred balance to express the intention of the parties, and the contract should be so construed. Mitchell v. Mitchell, 236 Ark. 812, 368 S.W. 2d 284 (1963).

The appellants have already paid the accrued interest of $22,120.97 and are entitled to credit for said amount on the last payment of principal payable under the contract.

In my view the case should be reversed with directions for such credit to be given.

Howard, J., joins in this dissent.


author: Steele Hays, Judge.

text:
    Albert J. EDMONDSON, Ex Parte v. D. R. EDMONDSON et al
    CA 80-39
    599 S.W. 2d 765
    Court of Appeals of Arkansas
    Opinion delivered May 28, 1980
    Released for publication June 18, 1980

      Alan D. Epley, for appellant.

      Sam T. Heuer, for appellees.
   Steele Hays, Judge.

This is a family dispute over the ownership of a certain tract of land in Carroll County. In 1966 Charlie Edmondson died intestate leaving eleven children to survive him. Appellant, Albert J. (Jack) Edmond-son, who is one of the deceased’s children, had lived with his father and had taken care of the “homeplace” since his discharge from the Army in 1946. Dick Edmondson, his oldest brother, also worked on the farm during that time. Upon Mr. Edmondson’s death, both Dick and appellant Jack made arrangements to obtain quitclaim deeds from the .other children of their interest in the property. There was testimony at the trial to indicate that the deceased father had expressed a desire to give the property to appellant. Appellant had testified that Dick had made all the arrangements with the other children, but three of the children testified that appellant had discussed the matter with them before they signed the quitclaim deed.

In 1967, nine of the children quitclaimed their interest in the property to appellant. One sister, Susie Alvard, sold her interest to appellant for a valuable consideration of $2,272.72.

In 1978, appellant filed an action to quiet title to the tract of land in question which consisted of approximately 172 acres. Appellees, the other surviving children of Charles Edmondson and their heirs, filed a response to the petition to quiet title. They also counterclaimed on the basis that the quitclaim deed was procured by fraud and that there existed a confidential relationship between appellant and the other heirs of Charles Edmondson. Furthermore, they alleged that appellant orally promised that he would hold the property and upon the sale of such property, he would divide the proceeds among the heirs. As a result of this alleged oral promise, petitioners contended that a constructive trust should be declared on any proceeds obtained from the sale of such property.

The Chancellor rendered a decision against appellant, stating that he had failed to prove by a preponderance of the evidence that title should be quieted in his name. Furthermore, the Chancellor held in favor of the counter-petitioners (appellees), stating that they had shown by clear and convincing evidence that the dispute property was conveyed to appellant for use during his lifetime and was to be divided among all the heirs at his death. Appellant brings this appeal from the judgment below.

Appellant alleges five points for reversal which can be narrowed down to one central issue — namely, whether a constructive trust should be imposed upon the disputed property in favor of the other heirs of Charles Edmondson.

We find the facts in this case to be similar in many respects to the facts in Walker v. Biddell, 225 Ark. 654, 284 S. W. 2d 840 (1955). In Walker, supra, appellant obtained quitclaim deeds from his two sisters to 320 acres of land held by their family for many years. One sister and the other sister’s heirs brought suit to have the quitclaim deeds cancelled, contending that they had merely executed the deeds to appellant to make it easier to execute oil-and-gas leases on the property. Appellant contended that he had always owned the property, that he had put the property in the name of his two sisters to avoid the possibility of a judgment creditor levying on the property, and that the two sisters simply reconveyed the property back to appellant when the claim was paid.

The Walker children had inherited the land from their father and had lost it in a foreclosure proceeding twenty years later. Title was regained when one Henry Stevens conveyed the property to appellant’s wife and his two sisters. It remained that way until appellant’s two sisters quitclaimed their interests in the property to him. On appeal, the Arkansas Supreme Court found that appellees had met their burden of showing by clear and convincing evidence that the deeds in question were made in reliance upon appellant’s oral promise to hold the land for himself and his sisters. The court specifically adverted to a letter written by appellant to one of the sisters recognizing her interest in the property and assuring her that he was not taking it from her. This evidence considered with the other testimony - was enough to meet the burden of proof. The court also held that the statute of frauds does not apply to a constructive trust. A constructive trust will arise when the grantee’s oral promise to hold property for the grantor is fraudulently made or when a promise is given by a grantee who stands in a confidential relation to the grantor. Armstrong v. Armstrong, 181 Ark. 597, 27 S.W. 2d 88 (1930); Restatement, Trusts § 44.

In the instant case, all of these factors are present that were stated in the Walker case. Three of Charles Edmond-son’s descendents testified that appellant had made an oral promise to hold the property for the benefit of himself and the grantors and if he ever sold the property, the proceeds would be divided among the heirs. This evidence was corroborated by a letter (Defendant’s exhibit #1) written by appellant to appellee, Leva Summers, which stated in part:

Well, Sis, we have gotten everything fixed up on the homeplace, had to pay Susie off at $25,000 making her $2,273.1 paid her by she is out now am going to fix it so you or your children will get your one ninth part in time, don’t knoiv just when . . . (Tr. 141) (Emphasis added).

Also, appellant’s testimony indicates that some promise or agreement was made at the time the heirs quitclaimed their interest in the property to appellant and that he later changed his mind about following through with the agreement:

“Q. Why did you change your mind, Mr. Jack?
A. I didn’t change my mind.
Q. You never have changed your mind?
A. I did after she filed this outfit and broke the promise.
Q. After she filed the outfit and broke the promise. Now, you tried to quiet title where you could sell it first, didn’t you, Sir?
A. Some of the deeds was in pretty much of a mess. I tried to get ’em straightened out.
Q. Well, I haven’t seen those messes, but that’s alright. So you decided that after she filed against this quiet title that you wouldn’t give them nothing. Is that your testimony?
A. I decided I’d give ’em what I wanted 'em to have and who I wanted to have it . . .”
“Q. Do you recall telling me that when you got married that’s when you changed your mind?
A. No.
Q. You don’t recall that? (T. 135).
A. I recall that, but what caused me to change my mind was that law changed the situation.
Q. How did the law change the situation, Mr. Jack?
A. I couldn’t explain that just exactly.
Q. Did your attorney tell you that?
A. No.
Q. Who told you the law forbids you now to carry out the agreement with these ladies?
A. It’s the Dowry Homestead Act.
Q. Dowry Homestead Act won’t let you do that now?
A. It gives her an interest in it.
Q. And you decided that when you got married' to her?
A. No, I didn’t decide that when I got married to her.
Q. When did you decide it?
A. It was on the statutes of the State of Arkansas long ’fore then.
Q. So, at that point, because the State of Arkansas, according to you, would not let you give these ladies their part, you were going to keep it from them?
A. No.
Q. What were you going to do, sir?
A. I went ahead and made another will. My wife signed her dowry part of it over to them and then they went and filed this outfit, so that broke that, and that was that.”

Then, later appellant testified:

“Q. And you were going to give each one of the children their one-ninth or one-eleventh part?
A. That’s the way I had it fixed ’til they broke it. Had the will fixed up.
Q. I’m not interested in the will.
A. That’s what it was.
Q. Until they broke it?
A. That’s right.
Q. So they filed your suit and they opposed you, so you decided well, then, they ain’t gonna get nothin’, is that the way it was?
A. No.
Q. When did you decide?
A. Whenever they broke the promise.
Q. How did they break their promise?
A. By filing these accusations against me.”

Clearly, appellant’s testimony indicates that he had promised to give the property to the other heirs of Charles Edmondson either at the time of his death or, in the event of a sale of the property, he would divide the proceeds. This evidence, taken together with the letter' by appellant to his sister and the testimony of the appellees provides clear, cogent and convincing evidence that the quitclaim deed was executed in reliance upon appellant’s oral promise to hold the land for himself and the other heirs of Charles Edmondson. Walker, supra; McCombs v. McCombs, 227 Ark. 1, 295 S.W. 2d 775 (1956); McNutt v. Carnes, 213 Ark. 346, 210 S.W. 2d 290 (1948).

Even in the absence of a promise which is fraudently made, the court can impose a constructive trust when a promise is given by a grantee who stands in a confidential relation to the grantor. Henry v. Goockwin, 266 Ark. 95, 583 S.W. 2d 29 (1979); Walker v. Biddle, supra’, Restatement, Second, Trusts, § 45- The relationship between brothers and sisters is, in the absence of fraud, one of confidence; they are not deemed to be dealing with each other at arm’s length. White v. White, 254 Ark. 257, 493 S.W. 2d 133 (1973); Walker v. Biddle, supra’, Armstrong v. Armstrrong, 181 Ark. 597, 27 S.W. 2d 88 (1930). Hence, in the instant case, appellant, to some extent, stood in the fiduciary relationship to his brothers and sisters. There is no requirement to show that appellant’s promise was fraudently made. It is enough to show that appellant made an oral promise and that he stands in a confidential relationship to the grantee. In this case, these factors have been shown by clear, cogent and convincing evidence and therefore appellees have met the test for establishing a constructive trust. Bottenfield v. Wood, 264 Ark. 505, 573 S.W. 2d 307 (1978); Robertson v. Robertson, 229 Ark. 649, 317 S.W. 2d 272 (1958). However, three heirs of Charles Edmondson indicated that when they quitclaimed their interest to appellant, they did not rely on any oral promise of appellant to hold the property in trust. Paul Edmondson testified at trial that he gave up all interest in the property when he signed the quitclaim deed, and that no promise was made to turn it back to him at any time. Also, Wendell Edmondson testified that he did not know of any oral promise made by appellant to give the property back to the heirs at the time of appellant’s death or at the sale of the property. Finally, Lola Pierpont, prior to trial, wrote appellant two letters renouncing any interest in the property. The letter dated September 20, 1979, stated in part:

I thought of writing another letter saying I had give my share of the place to you and having it notarized for you. Floyd didn’t think it was necessary since I had already sent one to you. (T. 126).

The letter dated October 20, 1978, states:

Now, we gave you our part of the place some years ago and it is yours. (T. 127)
Clearly, these three heirs did not rely on any oral promise given by appellant. Furthermore, it was their understanding that they gave up their entire interest in the property. We hold that the constructive trust does not benefit their heirs since they stated that, at no time, did they rely on any oral promise of appellant and, in fact, expressed an intention to give up their share of the property.

Hence, the ruling of the Chancellor is modified to the extent that the constructive trust will not benefit those heirs who have declared that they have no interest in the property and did not rely on any oral promise made by appellant; namely, Paul Edmondson, Wendell Edmondson and Lola Pierpont. Title is quieted in appellant’s name to five-elevenths of the disputed property. Appellant holds title to the remaining six-elevenths as trustee of a constructive trust to benefit the remaining heirs of Charles Edmondson as divided by the Chancellor.

Affirmed as modified.


author: James H. Pilkinton, Judge. David Newbern, Judge,

text:
    Larry SANDERS v. Charles L. DANIELS, Director of Labor
    CA 79-360
    599 S.W. 2d 770
    Court of Appeals of Arkansas
    Opinion delivered May 28, 1980
    Released for publication June 18, 1980

      Appellant, pro se.

      Herrn Northcutt, for appellee.
   James H. Pilkinton, Judge.

This is an unemployment compensation case. The claimant has appealed a determination of the Arkansas Employment Security Board of Review holding him ineligible for benefits under the provisions of the Arkansas Employment Security Act. The Board of Review found that claimant, although unemployed, was ineligible for benefits under the provisions of Section 4(c) of the act. The board specifically found that claimant had unduly restricted his availability for work, and that he was not doing those things which a reasonably prudent individual would do to find work.

Section 4(c) of the Arkansas Employment Security Law [Ark. Stat. Ann. § 81-1105(c) (Repl. 1976)] provides that claimants will be eligible for benefits if they are unemployed, physically and mentally able to perform suitable work, are available for such work, and are doing those things that a reasonably prudent individual would be expected to do to secure work.

In Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978), the Arkansas Supreme Court held that the findings of fact made by the Board of Review in cases of this type are conclusive on appeal if supported by substantial evidence. Therefore, the question here is whether there is substantial evidence to support the determination of the Board of Review. It is clear from a study of the record that there is such substantial evidence. The testimony reflects that claimant is a journeyman carpenter. In the last job which he held before filing the claim in question he was earning $6.00 an hour as a carpenter in construction work. He had worked at the rate of $6.00 an hour for some seven or eight months. Before that time he had been employed as a carpenter by a construction company which started his pay at $4.75 an hour, but soon raised him to $5.00 an hour. In connection with the present claim, the appellant stated that he would not work for less than $6.00 an hour as a carpenter because the weather and other factors made the work uncertain and reduced his earnings during the winter months as he often could not work a full week. It is undisputed that his usual line of work was as a carpenter. The evidence also shows that there is no union carpenter work in the area involved, and the reports of the Employment Security Agency show that orders for carpenters coming to the agency called for a wage of $4.00 to $4.50 an hour for this kind of work. The claimant, however, refused to accept less than $6.00 an hour as a carpenter thereby limiting his availability for employment in his usual line of work. The claimant did testify that he would be willing to accept less than $6.00 an hour for employment in a factory because factory work would be steady and stable during the winter- months whereas carpenter work would not be constant. The record indicates that appellant has contacted three possible employers in the construction field, and two factories, inquiring about work since filing his claim.

The Board of Review specifically found that the claimant’s availability for work is restricted by his wage demand, and further found that he was not doing those things that a reasonably prudent individual would be expected to do to secure work. He was therefore found to be ineligible for benefits under the provisions of Section 4(c) of the act. As there is substantial evidence to support the findings and decision of the Board of Review we must affirm. Harris v. Daniels, supra. It should be noted that claimant was only declared ineligible for benefits from September 16, 1979, through the date of the hearing on October 16, 1979.

Affirmed.

Newbern, J., dissents.

David Newbern, Judge,

dissenting. I cannot find substantial evidence that the employee was doing less than a reasonable person would do to find employment. Apparently he said he would not accept less than $6.00 per hour as a carpenter because, given the irregularity of carpentry work, he had to have that much to provide for himself and his family. There is no evidence the claimant was offered a job at any rate of pay. He specifically testified he would take less than $6.00 if employed at work that promised to be steady. He also made it clear he was a journeyman carpenter and that he disagreed with the agency’s statement that calls for carpentry workers showed the usual wage to be $4.00 or $4.50.

At the end of the hearing the claimant said he couldn’t understand how he could be considered ineligible when there was no construction work of any kind available and no jobs at the factories where he had applied. The hearing concluded as follows:

REFEREE: Anything more you would like to say, Mr. Sanders?
CLAIMANT: I’ll just say, if I can find work, I’ll work, that that’s —
REFERJEE: I have nothing else. We’ll close the hearing. A written decision will be issued, and you will receive that in the mail at your home address. Thank you very much for coming in this morning, Mr. Sanders.

I believe the claimant’s response to the question as to what wage he would work for was not unreasonable and that it cannot be considered substantial evidence supporting the conclusion that he was not doing that which a reasonable person would do to find work. Therefore, I respectfully dissent.


author: James H. Pilkinton, Judge.

text:
    Albina PAULINO v. Charles L. DANIELS, Director of Labor
    CA 80-56
    599 S.W. 2d 760
    Court of Appeals of Arkansas
    Opinion delivered May 28, 1980
    Released for publication June 18, 1980
    Appellant, pro se.

      Herrn Northcutt, for appellee.
   James H. Pilkinton, Judge.

This is an unemployment compensation case. The appellant, who was the claimant below, has appealed to this court from a decision of the Arkansas Employment Security Board of Review which determined that her appeal to that board was not timely filed.

The record shows that the decision of the Appeals Tribunal was mailed on December 20, 1979, and claimant’s appeal to the Board of Review was filed on January 7, 1980. The appeal was not, therefore, filed with the Board of Review until after the expiration of the 15 days allowed by law.

Section 6(d)(2) of the Arkansas Employment Security Act [Ark. Stat. Ann. § 81-1107 (d)(2)] reads, in part, as follows:

The claimant, the Director of Labor or any other party entitled to notice, may file an appeal from a determination made by the Agency with an Appeal Tribunal or with any office of the Employment Security Division within 15 days after the date of mailing to his last known address, or if such notice is not mailed, within 15 days after the date of delivery of such notice.
If mailed, an appeal shall be considered to have been filed as of the date of the postmark on the envelope. Provided, that if it is determined by an appeals tribunal or the Board of Review that the appeal if not perfected within the fifteen (15) days period as a result of circumstances beyond the appellant’s control, such appeal may be considered as having been filed timely.

Section 6(d)(3) of the Arkansas Employment Security Act reads, in part, as follows:

The Board of Review may, on its own motion, within the time specified in paragraph (2) of this subsection, initiate a review of the decision of the appeal tribunal or determination of a special examiner or may allow an appeal from such decision on application filed within such time by any party entitled to notice of such decision.

In disposing of this case, the Board of Review in addition to finding that the appeal was late also specifically found, as a matter of fact, that claimant’s failure to file a timely appeal was not a result of circumstances beyond her control. In this court, on appeal, the appellant attempts to explain her reasons for the delay in filing her appeal to the Board of Review as follows:

(a) On December 28, 1979, Friday PM, when I received the notice of dismissal, Appeal #80-BR-69, no appropriate form was enclosed.
(b) On January 2, 1980 AM, I informed Ms. Goodson and Mr. Slaydon of ESD that I received the Notice of Appeal Dismissal on December 28, 1979. They both promised to mail me the necessary form as soon as possible.
(c) On January 4, 1980 AM, I again called Ms. Good-son and Mr. Slaydon that I have not received the appeal form because I do not want to be late in filing the petition for appeal to the Board of Review. They assured me that I can still file the following Monday, January 7, 1980, and also promised me that they will explain the cause of the delay before the board of review.

It is apparent that appellant in the comments quoted above is referring to Employment Security Division Form ARK-BR-100 (Rev. 5-77) entitled Petition for Appeal to the Board of Review which has been adopted by the agency for such appeals. It is also apparent that the Christmas and New Year holidays were included in the 15 days involved insofar as appellant was concerned. It is also clear from the record that the Board of Review, without notice or hearing simply accepted the dates involved as conclusive and then found that the board had no authority to consider the appeal since the decision of the Appeal Tribunal had become final. The appeal was dismissed as untimely filed.

Although the appeal was admittedly filed late with the Board of Review, there is no substantial evidence in this record to support the finding of the board that the failure to file a timely appeal was not a result of circumstances beyond the appellant’s control. As already noted, the decision of the Board of Review was based solely on the dates involved and nothing else. We do not find the dates alone to be substantial evidence under the circumstances here. There is no doubt that the filing was late. The real question raised is why it was late. As far as the record in this case indicates, appellant was not afforded any opportunity before the Board of Review to be heard on her contention that the late fifing was due to circumstances beyond her control. Although appellant in her petition to this court sets out the alleged reasons for the late fifing in the Board of Review, it would not be proper for this court on appeal to pass on this issue of fact. That is the duty and responsibility of the Board of Review as the fact-finding body. Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978). As appellant was given no opportunity before the Board of Review to attempt to explain the lateness of her appeal to that body, and in view of the fact that there is no substantial evidence in this record to support the finding of the board that the failure to file a timely appeal was not a result of circumstances beyond the appellant’s control, due process requires that claimant-appellant be afforded a hearing on her contentions. This cause is therefore reversed and remanded with directions that appellant be afforded an opportunity to be heard on her contention that the late fifing was the result of circumstances beyond her control.


text:
    Carfie ROSE v. Charles L. DANIELS, Director of Labor and INLAND OIL & TRANSPORT COMPANY
    CA 80-96
    599 S.W. 2d 762
    Court of Appeals of Arkansas
    Opinion delivered May 28, 1980
    Released for publication June 18, 1980

      Appellant, pro se.

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

The only question in this appeal is whether there is substantial evidence to support the decision of the Board of Review that appellant Carlie Rose was not entitled to unemployment benefits under the Arkansas Unemployment Security Act.

Appellant has been employed since January 23, 1979, by Inland Oil and Transport Company of St. Louis, Missouri, as a mate for barge and towboat assignment. He is still employed by Inland, but got off the towboat on June 24, 1979, and did not return to work until September 9, 1979. The reason he gave for not working during that period was that the employer had no suitable work available for him. The response of the employer, Inland Oil and Transport Company, indicates that work was available but the claimant-appellant did not work for Inland during this period because the port captain would not approve the claimant’s wife being on board the boat with him. The claimant appealed the determination of the agency denying him benefits under the provisions of the Arkansas Employment Security Law holding that claimant quit his last employment voluntarily and without good cause connected with his work. After a complete hearing, the Appeals Tribunal held that Mr. Rose was not unemployed within the meaning of the law and he was denied benefits from July 25, 1979, up to September 9, 1979, the date he returned to work with the employer. The claimant then appealed to the Board of Review, which affirmed the decision of the Appeals Tribunal. The decision of the Appeals Tribunal was adopted as the decision of the Board of Review. The claimant was held to be ineligible for unemployment benefits from July 25, 1979, up to September 9, 1979, the date he returned to work with his employer, under the provisions of Section 4(c) of the Arkansas Employment Security Law.

In appellate review under Ark. Stat. Ann. § Sill 07 (d)(7) making the findings of the Board of Review, as to the facts, conclusive, if supported by evidence and in the absence of fraud, and confining judicial review to questions of law, we must give the successful party the benefit of every inference that can be drawn from the testimony. We are required to view the testimony in the light most favorable to the successful party, if there is any rational basis for the board’s findings based upon substantial evidence. Harris v. Daniels et al, 263 Ark. 897, 567 S.W. 2d 954 (1978).

When we view the testimony in the light most favorable to the board’s findings, drawing all reasonable inferences favorable to that holding, we are unable to say that there is no rational basis for it. Our act disqualifies the employee who voluntarily leaves work if it is “without good cause connected with the work.” What constitutes good cause is usually a question of fact within the province of the Board of Review. Harris v. Daniels, supra. In this case the testimony shows that Inland Oil and Transport has a company policy prohibiting wives of employees to ride the boats without specific approval of the port captain. According to this record. Mr. Carlie Rose contacted Captain Brown, the port captain, in July, 1979, and asked if Mrs. Rose might ride the boat for a few days. Captain Brown gave his approval for her to ride from Evansville, Indiana, to Helena, Arkansas. The evidence shows that Captain Brown boarded the boat at Memphis, and when the boat got to Helena, Mr. Rose requested that his wife be allowed to ride back to Memphis. Captain Brown denied Rose’s request, stating that he had given permission for her to ride to Helena only and that she would have to get off. The evidence shows that Mr. Rose indicated, at this time, that if his wife got off he would also have to get off and did so on July 24, 1979- The employer claims that Mr. Rose was contacted subsequently by the office on several occasions with instructions to return to work; and, on each occasion, he requested that his wife be put aboard as a cook. The employer indicated to him that Mrs. Rose would have to apply through the proper channels if she wished to be employed as a cook. The evidence also shows that during the time Mr. Rose was off from work, the employer was particularly in need of tankermen and mates, and the company claims that its personnel department contacted Mr. Rose on several occasions during the period in question asking him to return to work. The evidence, when viewed in the light most favorable to the opinion of the Board of Review, shows that he refused to return to work without the accompaniment of his wife until September 9, 1979, when he dropped that demand. He then returned to work.

We find substantial evidence to support the board’s decision that appellant was not unemployed, within the meaning of the act, during the period in question.

Affirmed.


author: George Howard, Jr., Judge.

text:
    Joanne LEMAY v. Charles L. DANIELS, Director of Labor
    CA 80-21
    599 S.W. 2d 771
    Court of Appeals of Arkansas
    Opinion delivered May 28, 1980
    Released for publication June 18, 1980
    Appellant, pro se.

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

The claimant appealed a determination by the Local Agency that she had received unemployment benefits to which she was not entitled and, therefore, she should be liable to repay the Fund the sum of $98.00, the amount that she had received.

Ark. Stat. Ann. § 81-1107(f)(2) provides:

“If the Director finds that any person has received any amount of benefits under this act which he was not entitled by reasons other than fraud, wilful misrepresentation, or wilful nondisclosure of facts, such person shall be liable to repay such amount to the fund or in lieu of requiring the repayment, the Director may recover such amount by deduction from any future benefits ...”

The claimant testified, at a hearing conducted in Hialeah, Florida, under the Interstate Appeals Procedure, that she was discharged from the Armed Forces of the United States, in Arkansas, on July 6, 1979; and that she and her husband, who was a member of the Armed Forces, had made plans to move to the State of Florida upon his discharge from the service. While in Arkansas awaiting the release of her husband, claimant, on July 9, 1979, filed for unemployment benefits. She received a $98.00 unemployment benefit check for the weekly benefit period ending July 21, 1979, which period, by mistake, included the one week waiting period. Claimant left Arkansas for Florida on July 16, 1979, the last day of the- one week waiting period and refiled for benefits in Florida on July 16th.

Under Ark. Stat. Ann. § 81-1105(d), a claimant shall be entitled to benefits only if the Director finds that he has been unemployed for a ivaiting period of one week. Claimant left Arkansas before her waiting period expired. Moreover, the waiting period was inadvertently considered in determining her eligibility for benefits.

Claimant also testified that if work had been afforded her in Arkansas, she would not have been in a position to remain in Arkansas since her stay in Arkansas was really for the purpose of awaiting the release of her husband from service.

The Board of Review affirmed the overpayment determination and we are persuaded that there is substantial evidence to support the action of the Board of Review.

Affirmed.


author: David Newbern, Judge.

text:
    William H. WADE v. STATE of Arkansas
    CA CR 80-11
    599 S.W. 2d 764
    Court of Appeals of Arkansas
    Opinion delivered May 28, 1980
    Released for publication June 18, 1980
    Appellant, pro se.

      Steve Clark, Atty. Gen., by: James F. Doivden, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

The appellant appeared pro se before a municipal court where he was convicted of speeding and fined $25.00. The fine was suspended for one year. In the municipal court proceedings, the appellant demanded and was denied a trial by jury.

After the municipal court trial, the case went to the circuit court, on appeal, for a trial de novo. The appellant filed a petition asking the circuit judge to disqualify himself, and in response, the circuit court entered an order on October 24, 1979, reciting the following chronology of events: The case was first set for trial to be held October 15, 1979, but the appellant failed to appear, and it is not clear he had been given notice. The case was reset for 9:00 a.m., October 22, 1979, and the clerk was ordered to notify the appellant. The appellant appeared at 9:30 a.m. on October 22, after the court had begun other proceedings. The court informed the appellant that his case would be heard after the other proceedings were concluded. The defendant asked further delay to obtain witnesses. The case was again called at 9:00 a.m., October 24, and the appellant was not present. The court directed the clerk to notify the appellant his case would be heard at 1:00 p.m., October 25. The appellant asked the court to recuse himself by a petition filed October 24. The court recused himself and ordered the trial to be held October 25, 1979, before the Honorable Carl McSpadden on exchange.

The defendant did not appear at the hearing scheduled before Judge McSpadden on October 25. Judge McSpadden affirmed the conviction and revoked the suspension of sentence “because of the non-appearance of the defendant and the non-payment of the Municipal Court costs.”

The main issue raised by the appellant on this appeal is whether the circuit court had jurisdiction. The appellant claims he did not appeal the municipal court’s judgment. The “Transcript on Appeal” signed by the municipal clerk recites the “defendant . . . prayed an appeal to the Independence Circuit Court, which was accordingly granted; . . .” To impeach that document we have only the statement in the appellant’s brief that he did not seek an appeal. That unsworn statement is not sufficient to impeach the official transcript filed by the clerk. Our supreme court has held that the record of a court cannot be contradicted even by a bill of exceptions. Arkansas and Louisiana & Gulf Ry. Co. v. Kennedy, 87 Ark. 50, 111 S.W. 1125 (1908).

Although we must affirm this case against the appellant’s contention the circuit court lacked jurisdiction, we know of no authority for the circuit court to revoke the suspension of an affirmed sentence because of failure to appear and failure to pay costs. Ark. Stat. Ann. § 44-507 (Repl. 1977), merely provides that, upon failure of the defendant to appear, the circuit court may affirm and “enter judgment against the appellant for the same fine or penalty that was imposed in the inferior court, with costs, . . .” This appellant has not failed to appear in response to any court order, and as far as we know, payment of costs was not a condition of the suspension of the fine. The remedy for failure to pay costs is found in Ark. Stat. Ann. § 41-1104 (Repl. 1967), and it clearly was not followed here.

The judgment of the circuit court is thus affirmed and modified to reinstate the suspension of the fine.


author: Ernie E. Wright, Chief Judge.

text:
    Larry TATE v. STATE of Arkansas
    CA CR 80-14
    600 S.W. 2d 915
    Court of Appeals of Arkansas
    Opinion delivered June 4, 1980
    Released for publication June 25, 1980

      Ben Johnson, Jr., for appellant.

      Steve Clark, Atty. Gen., by: James F. Doiuden, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

The appellant Larry Tate was convicted of theft of property by mistake, a violation of Ark. Stat. Ann. § 41-2205, a Class B or C misdemeanor. He asserts a number of grounds for reversal, but we discuss only one point as we find it to be dispositive of the case.

Appellant contends the court erred in instructing the jury it could consider the guilt of appellant for violation of Ark. Stat. Ann. § 41-2205 which deals with theft of property delivered by mistake.

The appellant was charged by information with the crime of theft of property in violation of Ark. Stat. Ann. § 41-2203, a Class C felony, it being alleged that he did unlawfully and knowingly, with the purpose of depriving the owner of its property, take unauthorized control over monies having a value in excess of S 100.00 and being the property of Weyerhauser Company.

Appellant was an employee of Weyerhauser Company and received payroll checks which included excessive pay aggregating the sum of $430.00 for hours he did not work. The overpayments resulted from changes in appellant’s time slips having been made by someone unknown. After the above criminal charge was filed appellant reimbursed his employer for the overpayments. At the close of the evidence the court, over objections of appellant, instructed the jury that if it had a reasonable doubt of appellant’s guilt on the charge of theft of property it would then consider the charge of theft of property delivered by mistake, and proceeded to give the following instruction:

To sustain this charge the State must prove the following things beyond a reasonable doubt:
First: That LARRY TATE came into control of property of another person;
Second: That LARRY TATE retained the property knowing it to have been delivered under a mistake as to the amount of the property; and
Third: That, with the purpose of depriving anyone having an interest in the property, LARRY TATE failed to take reasonable measures to restore the property to a person entitled to it.

The appellant specifically objected to the foregoing instruction on the ground he was not charged with violation of § 41-2205, theft of property delivered by mistake, such charge was not incorporated in the information and appellant had no notice of same.

The gist of the crime of theft of property delivered by mistake under § 41-2205 is the failure to take reasonable measures to restore the property to the person entitled thereto. This is distinct and separate from any element contained in the charge filed against appellant and from the crime prohibited by § 41-2203, which embraces the crime of theft of property by knowingly taking or exercising unauthorized control over the property of another, with the purpose of depriving the owner thereof. The focus of § 41-2203 is on the unlawful taking of possession with the intent to deprive the owner of his property; whereas, the gravamen of a violation of § 41-2205 is the wrongful failure to take reasonable measures to restore to the owner property received by mistake.

The state contends that a violation of § 41-2205 is a lesser included offense under § 41-2203, but we do not agree. The charge against appellant does not contain any allegations relating to appellant receiving the property by mistake or failing to take reasonable measures to restore it. The charge does not contain all the ingredients of the lesser offense of which appellant was convicted, and a conviction of a lesser offense cannot be sustained under such circumstances, even though the evidence supplies the missing element. Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1962).

We hold that the information was ineffective to charge appellant with the crime of theft of property delivered by mistake, and that the court erred in instructing the jury that it could consider the guilt of the appellant under § 41-2205.

Reversed.


text:
    Michael EDEN v. Charles L. DANIELS, Director of Labor, State of Arkansas and Rex E. SWANSON
    CA 80-82
    600 S.W. 2d 416
    Court of Appeals of Arkansas
    Opinion delivered June 4, 1980
    Released for publication June 25, 1980

      Appellant, pro se.

      Herrn Northcutt, for appellees.
   Steele Hays, Judge.

This is an appeal from the Board of Review of the Arkansas Employment Security Division. The Agency had determined that the claimant, Michael Eden, was not entitled to unemployment insurance benefits on the basis that he willfully made a false statement of material fact while filing his claim in violation of Section 5(b)(2) of the Arkansas Employment Security Act. Consequently, the claimant was found to be disqualified for benefits for the five weeks in which he received benefits plus twenty-three additional weeks. Under Section 6(f)(1), the Agency determined that claimant received $120 per week for five weeks of unemployment insurance benefits to which he was not entitled. Hence, he was held to be liable to repay this amount. The Appeals Tribunal affirmed the ruling of the Agency. The claimant then appealed his decision to the Board of Review. The Board of Review affirmed the holding of the Appeals’ Tribunal. Claimant now brings this appeal.

The sole issue for determination is whether there is substantial evidence to support the Board of Review’s finding that claimant is disqualified from receiving unemployment insurance benefits because he made a false statement or misrepresentation of a material fact when filing his claim for unemployment benefits.

A brief synopsis of the facts is as follows: claimant had advertised in the local newspaper to contract for a painting job. He testified that he placed the advertisement in the newspaper for his brother who was coming from Mexico and needed work. A Mr. Rex Swanson called claimant and told him that he had a painting job in Little Rock. Claimant testified that he contracted the job for his brother, Jeffrey Eden, and that he told Mr. Swanson this fact when he first entered into the contract. Claimant also testifies that his brother, Jeffrey, did paint the entire house except for a door which the claimant painted.

Mr. Swanson paid claimant $588.20 for the work. Claimant then testified that he paid the entire amount to his brother Jeffrey. His brother Jeffrey then gave claimant back $88.00 which claimant testified was for money Jeffrey borrowed for a dentist appointment, gasoline, and living expenses since Jeffrey had been living in the claimant’s home.

Inasmuch as the events themselves are not in dispute, the issue presented is whether the inferences to be drawn from the events are consistent with the conclusions reached by the Board of Review, i.e., that claimant intentionally misrepresented a material fact when he filed his claim for unemployment insurance. Viewed in the light most favorable to appellant, it is clear that they are. Harris v. Daniels, 263 Ark. 897 (1978). We note that claimant’s own testimony establishes a) that claimant did the initial advertising for the job; b) that claimant gave a receipt for the initial payment; c) that it was claimant’s truck, painting tools and equipment that were used; d) that claimant actually participated in the work; e) that claimant went with his brother to be paid when the work was completed; f) that the check in payment was issued in claimant’s name alone; and finally, g) claimant actually received a part of the proceeds. It can hardly be said that the inferences drawn by the Board of Review to the effect that claimant was indeed interested in the job and benefitted from it are not permissible under the evidence. That being so, claimant was obligated to make that information known when he drew his unemployment insurance. The language of Harris v. Daniels, supra, is particularly apropos:

“In appellate view ... we must give the successful party the benefit of every inference that can be drawn from the testimony, viewing it in the light most favorable to the successful party, if there is any rational basis for the Board’s findings based upon substantial evidence. Even though there is evidence upon which the Board of Review might have reached a different result the scope of judicial review is limited to a determination whether the Board could reasonably reach its result upon the evidence before it and a reviewing court is not privileged to substitute its findings for those of the Board even though the Court might reach a different conclusion if it had made the original determination upon the same evidence considered by the Board. Even if the evidence is undisputed, the drawing of inferences is for the Board, not the courts.”

We find that the decision of the Board of Review is supported by substantial evidence and should be affirmed.


text:
    B. J. McADAMS, INC. v. Charles L. DANIELS, Director, State of Arkansas Department of Labor and Leroy McCRANEY
    CA 79-346
    600 S.W. 2d 418
    Court of Appeals of Arkansas
    Opinion delivered June 4, 1980
    Released for publication June 25, 1980

      James W. Woods, for appellant.

      Thelma Lorenzo, for appellees.
   James H. Pilkinton, Judge.

This is an unemployment compensation case. The appellant, employer below, has appealed a determination of the Arkansas Employment Security Board of Review which held appellee was not disqualified from benefits under the provisions of Section 5(b)(1) of the Arkansas Employment Security Act.

The claimant last worked for this employer as a truck driver on December 8, 1978. According to the appellant he was formally discharged on January 12, 1979, after having three accidents in an eleven-month period of time. The final accident occurred in Checotah, Oklahoma, on December 8, 1978. At that time the evidence shows that the claimant was driving approximately 35 miles per hour and slipped off in a ditch causing about $5,300 in damages to the employer’s equipment. According to the testimony of the employer the appellee was a satisfactory employee except for the three accidents, and two other incidents, in which he was involved. These had an adverse effect on the cost of insurance coverage to the employer.

Section 5(b)(1) of the Arkansas Employment Security Act [Ark. Stat. Ann. § 81-1106(b)(1) (Repl. 1976)] provides a disqualification for claimants who are discharged from their last work for misconduct in connection with the work within the meaning of the above cited section of the law. The determination of the Appeals Tribunal was duly appealed to the Board of Review which affirmed the Appeals Tribunal determination allowing the claimant unemployment benefits. In the employer’s appeal to the Board of Review, counsel argued that the claimant’s involvement in what he termed “five chargeable (avoidable) incidents or accidents” during his tenure of employment as an over the road truck driver proves a patter or course of conduct which shows “the claimant was not only negligent but his actions in violating the policies and directives of the employer were willful.” The employer-appellant introduced and relied on three separate exhibits. These were the completed “Report of Accident” forms pertaining to each of the three motor vehicle accidents in which claimant-appellee was involved. The Board of Review in its written decision pointed out that none of the information contained in the accident reports suggests any objective basis or reliable data to support the employer’s contention that “the three accidents were caused by claimant’s negligence on the job.” The Board of Review was persuaded that the weight of the evidence supports and sustains the conclusion that the employer’s dissatisfaction with claimant arose from causes other than misconduct in connection with the work.

The Board of Review in its opinion made the following comments and findings:

In order to justify a finding of misconduct it is generally held that the claimant’s actions must have been within his control and his behavior such as to show an intentional breach of the claimant’s obligation toward his employer. In the clear majority of jurisdictions having the same statutory language as Arkansas Section 5(b)(1), qualifying employees from unemployment benefits who have been discharged for misconduct, the Courts follow the definition of misconduct as construed by the Wisconsin Supreme Court in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941) as follows:
. . the intended meaning of the term ‘misconduct’ ... is limited to conduct evincing such wilful or wanton disregard of standards of behavior which the employer has a right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.’

In this case the Board of Review decided that the precipitating cause for appellee’s discharge on January 12, 1979, was the final accident on December 8, 1978, which one of the employer’s own exhibits tends to indicate was caused primarily by weather conditions with “no evidence of negligence” on claimant’s part. The Board of Review determined that claimant is not disqualified for benefits under the provisions of Section 5(b)(1) of the Arkansas Employment Security Act. The only question before this court on appeal is whether there is substantial evidence to support the findings of fact of the Board of Review. Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978). A careful study of the record indicates that there is substantial evidence in this record to support the findings and decision of the Board of Review that appellant was discharged for the convenience of his employer, and not for misconduct, within the meaning of the act, in connection with the work.

Affirmed.


text:
    OZARK RUSTIC HOMES, Employer and TRI-STATE INSURANCE COMPANY, Insurance Carrier v. Jeff ALBRIGHT, Employee
    CA 80-92
    600 S.W. 2d 420
    Court of Appeals of Arkansas
    Opinion delivered June 4, 1980
    Released for publication June 25, 1980

      Blair, Cypert, Waters & Roy, for appellants.

      Niblock & Odom, for appellee.
   Marian F. Penix, Judge.

The Claimant was paid disability benefits by the Respondent Carrier from September 19, 1976 through November 30, 1976. These benefits were paid as a result of an alleged on-the-job injury suffered by the Claimant September 19, 1976. The Claimant petitioned the Administrative Law Judge Charles E. Davis to change physicians at the expense of the Respondent Employer. A hearing was held only on the issue of changing physicians. The parties stipulated the Claimant had suffered an on-the-job injury. In Judge Davis’ Order of March 31, 1977 Judge Davis found the Claimant did suffer a compensable injury arising out of and in the course of his employment and further found the sole issue was the right of the Claimant to change physicians. Judge Davis granted the request to change physicians.

On October 12, 1977 another hearing was held before Administrative Law Judge Barry Kincannon to determine whether the Claimant was entitled to additional temporary benefits. The Respondents again stipulated the Claimant’s injury arose out of and in the course of his employment. At the October 12 hearing the Claimant disclosed he had received treatment at the VA Hospital. The Respondents’ attorney was afforded opportunity to depose doctors at the VA and to get medical records from the VA hospital.

Arlene Hatcher, an employee at the VA, was responsible for interviewing the Claimant when he was admitted to the VA. She testified she was the person under whose supervision the form known as FORM 10-10 was completed. The information contained on these forms was obtained directly from the Claimant and was signed by him. On each of the first three forms the Claimant indicated he did not believe the back problem he was having was related to his employment. It was not until his visit to the VA Hospital February 10, 1978 he indicated he believed the care he was receiving was related to his employment.

A nurse at the VA Hospital, Norma Cary, testified she interviewed the Claimant on his first visit to the hospital and that she completed the information at the top of FORM 10-10M where it was written the Claimant told her “back ‘went out’ yesterday a.m. when patient got out of bed.”

As a result of the new evidence discovered in regard to treatment at the VA Hospital the Respondents withdrew their stipulation and controverted the issue of an on-the-job, compensable injury. On September 29, 1978 a hearing was held before Administrative Law Judge Lee Kuykendall on the matter of the right of Respondents to withdrew their stipulation and upon the matter of whether or not the injury suffered by the Claimant was an on-the-job injury.

On March 7, 1979, Administrative Law Judge Eddie Walker, Jr. filed an Order and opinion refusing to allow Respondents to withdraw their stipulation. The Order recited the injury was compensable and awarded the Claimant additional temporary benefits. The Order left the matter of permanent disability in abeyance. Judge Walker’s Order was affirmed by the Full Commission and by the Circuit Court. The Respondents appealed.

The Respondents contend the Circuit Court erred in affirming the Commission’s ruling it would not consider evidence on the issue of compensability.

The first question to be resolved is whether the Order arising out of the February 10 “change of physician” hearing was a final order.

The Arkansas Supreme Court recognizes that not every order by an Administrative Law Judge is final and appealable. However, in Luker v. Reynolds Metal Co., 244 Ark. 1088, 428 S.W. 2d 45 (1968) the Court stated:

The appealability of the Commission’s order in a workmen’s compensation claim is not limited to the final disposition of the matter before the Commission. See McNeely v. Clem Mill & Gin, 241 Ark. 498, 409 S.W. 2d 502 (1966). . . . The . . . order determined the employer’s responsibility for the injuries and specifically retained jurisdiction for the “purpose of determining the end of claimant’s healing period and the extent of his permanent disability, if any.” These determinations were sufficiently final for the employer to contest on review (1) its liability to the claimant, (2) whether the evidence established the termination of the healing period, and (3) whether the evidence established any permanent partial disability. To this extent we hold it was final for purposes of review.

Compensability here has been determined by stipulation. While this stipulation may have been procured by fraud, we cannot allow its withdrawal. The Respondents were put on notice of the VA treatment at the February hearing. They made no attempts at that time to investigate the VA treatments. It was within the Respondents’ power to discover the fraud.

At the February 10, 1977 hearing the Respondents stipulated the Claimant had suffered a compensable injury. They did, however, contest his changing physicians. Dr. Kaylor, whom Claimant had chosen, had released the Claimant to go back to work. The Claimant testified:

Q. Tell us, what doctors have you seen besides Dr. Kaylor?
A. I went over to Dr. Green’s the other day to get a report. I’m going to try to file for a pension, Veterans. If I don’t get any better, I’m going to have to get some help someplace.
Q. A non-service connected disability?
A. Well, I’m going to put that in. Got a bad knee in the service, but I’m going to try to put it all in and try to get some help.
Q. But so far as your back is concerned, what doctors have you seen on your back, including chiropractors? Stop and think about it, and just tell the Judge everybody you’ve seen for your back.
A. Well, let me see. First, I went over... I went over to the Veterans.
Respondents’ Attorney: What was that doctor’s name?
I’m sorry.
Claimant’s Attorney: It was at the VA.
Respondents’ Attorney: Do you know what the doctor’s name is?
Claimant: Pinnell, I believe.
On cross-examination the Claimant testified:
Q. How did you happen to go see him?
A. ’Cause I’m a veteran and I knowed I didn’t have no money to go to any other doctor and I needed some help.

The Respondents contended the Claimant was “doctor shopping” hopeful that he would be able to find someone who would find something wrong with him. At the February hearing the Respondents were put on notice the Claimant had been to the VA Hsopital. They did not move to withdraw their stipulation nor did they ask to depose the VA doctors and secure the VA Hospital records. The hearing resulted in an Order directing the Claimant be examined by Dr. William C. Lockhart, Holt-Krock Clinic, Fort Smith, Arkansas, and further that the cost of such examination be borne by the Respondents.

The Respondents failed to appeal this Order within thirty days pursuant to Ark. Stat. Ann. § 81-1325(b). The threshold question of compensability was decided by the Respondents’ stipulation. The Respondents did not choose to depose the VA doctor nor the VA employees regarding the VA records, even though the Claimant had testified to having received treatment at the VA. The Respondents are precluded now from withdrawing .their stipulation. Their appeal was not timely filed.

Reluctantly we must affirm this decision. Had the Respondents not been placed on notice of the VA visits at the February hearing we would be compelled to allow the withdrawal of the stipulation. If the first revelation of treatment at the VA Hospital had come at the October hearing, perhaps this could be treated as a motion for a new trial due to the newly discovered evidence. However, this evidence could have been discovered in February in the same manner it was discovered in October. No appeal having been taken we find the Order to be final.

If there were fraud it could have been discovered at the February hearing prior to the rendition of the Order.

Affirmed.


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

text:
    Hubert LAWSON v. Charles L. DANIELS, Director of Labor, and DEPARTMENT OF COMMERCE LIVESTOCK & POULTRY COMMISSION
    E 80-1
    600 S.W. 2d 423
    Court of Appeals of Arkansas
    Opinion delivered June 4, 1980
    Released for publication June 25, 1980

      Appellant, pro se.

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

Appellant was denied unemployment benefits under Arkansas Employment Law, Ark. Stat. Ann. § 81-1106(a) (Repl. 1976), in that he left his last work voluntarily and without good cause in connection with the work.

Claimant was employed on September 21, 1979, at Barber, Arkansas, by the Arkansas Livestock and Poultry Commission, as a livestock inspector, in connection with the Commission’s “brucellosis program” (the prevention and eradication of bangs disease in livestock) in a five county area — Scott, Logan, Sebastian, Crawford and Franklin Counties. Claimant was advised at the outset that he would be required “to go where the work was.”

Upon accepting employment, claimant executed the following document entitled “Statement of Understanding”:

“I, Hubert Lawson, Jr., upon accepting employment with the Arkansas Livestock and Poultry Commission, understand that the position I will occupy is federally funded and that the federal funds will be discontinued at the end of the fiscal year 1980, and this has been considered and accepted. When the federal funds are discontinued, the Arkansas Livestock and Poultry Commission is under no obligation to continue my employment, and that my official station will be where my work assignment is located.” (Emphasis added)

On November 28, 1979, claimant quit his job when he was advised that the inspection program was being transferred to DeQueen, Arkansas.

Claimant testified:

REFEREE: Well, ah, did they offer you a job in DeQueen?
CLAIMANT: Ah, yes, they said I, if I would like to take the position and move down with them.
REFEREE: Well, why did you refuse it?
CLAIMANT: Well, it’s a little over a hundred miles down there, and I couldn’t just get up and move down there. I own a home in Barber, or Boothe, community. And, ah, I couldn’t drive back and forth every day.
REFEREE: Well, did you sign an agreement that you would go wherever the work was?
CLAIMANT: Yes, I did.
REFEREE: So, actually the employer was not guilty of any breech in the hiring agreement. They had a job for you if you’d wanted to gone down there; is that correct?
CLAIMANT: Yes, yes, there was a job.
REFEREE: And what kind of a job would it have been, ah, the same thing you’d been doing?
CLAIMANT: Same type of work. Yes.
REFEREE: Well, how long do these jobs last? Do they, how long have you been doing this job?
CLAIMANT: I was with the state for six months, through this program.

Claimant admits that when he accepted the position of inspector, he accepted it “with the understanding that you [he] would have to go where the work was.” Moreover, claimant executed a written document expressly stating “my official station will be where my work assignment is located.”

Dr. W. G. Swift, representative of the U.S. Department of Agriculture, Animal, Plant and Health Service,' testified that as a matter of policy, employees of the “brucellosis program would have to go where the work is.” The area which claimant was expected to make his services available involved essentially a five county area. What was expected of claimant and what claimant agreed to give was the usual and customary practice accompanying the occupation he sought and accepted. He executed a written contract agreeing that his work station would change periodically and would be determined by his work assignment.

While the Employment Security Law is to be liberally construed to accomplish its social purposes, we cannot in good conscience, permit these benevolent purposes to be frustrated by characterizing a claimant’s voluntary unemployment as involuntary. This case does not involve any intervening and unforeseen circumstances of a compelling nature that would require us to reach a different conclusion. It is plain that claimant made a bargain with full knowledge of the consequences. He simply quit his job for personal reasons rather than for good cause connected with the work.

We hold that there is substantial evidence to support the deicsion of the Board of Review.

Affirmed.

Newbern, J., concurs.

David Newbern, Judge,

concurring. I reluctantly concur in the majority opinion. The record in this case is deficient. All we know about the contract between the claimant and the commission is the “statement of understanding” quoted in the majority’s opinion. The testimony of Dr. Swift was that the program for which the claimant was hired covered a five-county area. The county to which the claimant was asked to move was not one of the five, and according to his testimony, was 100 miles from his home. Without further knowledge of the terms of the contract, I find it most difficult to interpret that part of the “statement of understanding” which said “my official station will be where my work assignment is located.” I can go along with this decision only because of the claimant’s testimony that he understood he would have to move to any place the work might take him, but I cannot avoid feeling the understanding might have been that he could be required to work anywhere in the five-county area. Undoubtedly, had the claimant been represented by counsel this issue would have been developed further, but in view of the claimant’s statement I cannot say there was no substantial evidence to support the result reached.


text:
    Frank McBRIDE v. Charles L. DANIELS, Director of Labor and ARKANSAS OAK FLOORING
    E 80-2
    600 S.W. 2d 425
    Court of Appeals of Arkansas
    Opinion delivered June 4, 1980
    Released for publication June 25, 1980

      Appellant, pro se.

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

Appellant filed his claim for unemployment benefits on November 13, 1979, which was approved by the local agency. The Appeals Tribunal, in reviewing the matter at the request of appellee-employer, reversed the action of the local agency.

On February 15, 1980, twenty-nine (29) days after the decision of the Appeals Tribunal, claimant petitioned the board of Review to review the action of the Appeals Tribunal stating:

“I now have an overpayment of $927.00 because I was made eligible. I am not working and would like for you reconsider the decision from appeal. I did not receive Appeal Decision — my copy.”
The Board of Review made the following finding:
. . The appeal was not filed until after the expiration of the fifteen (15) day period. . . . Failure to file a timely appeal was not a result of circumstances beyond the appellant’s control. The Board of Review therefore has no authority to consider such appeal since the . . . decision has become final.”

The difficulty we encounter at the outset is endeavoring to rationalize the basis for the Board’s finding that claimant’s failure to file a timely appeal “was not a result of circumstances beyond the appellant’s control.” The only evidence in the record possessing any degree of relevance on the issue are: (a) a notation that the decision of the Appeals Tribunal was mailed January 17, 1980, to claimant’s last known address, and (b) Claimant’s statement that he did not receive a copy of the decision.

Due process alone dictates something more than a perfunctory consideration of one’s request for a review of a decision in an adversary proceeding, and this is especially true where, as here, the claimant has economic rights at stake. While the proceedings below are termed administrative, they nonetheless entail quasi-judicial functions which must measure up to the standards of due process.

We are persuaded that our recent decision in Albina Paulino v. Charles L. Daniels, Director of Labor, 269 Ark. 676, 599 S.W. 2d 760 (Ark. App. 1980) is dispositive of the issue before us. In reversing a decision of the Board of Review, involving a similar issue, Judge Pilkinton, in speaking for the Court, said:

“. . . As already noted, the decision of the Board of Review was based solely on the dates involved and nothing else. We do not find the dates alone to be substantial evidence under the circumstances here. There is no doubt that the filing was late. The real question raised is why it was late. As far as the record in this case indicates, appellant was not afforded any opportunity before the Board of Review to be heard on her contention that the late filing was due to circumstances beyond her control. Although appellant in her petition to this court sets out the alleged reasons for the late filing in the Board of Review, it would not be proper for this court on appeal to pass on this issue of fact. That is the duty and responsibility of the Board of Review as the fact-finding body. ... As appellant was given no opportunity before the Board of Review to attempt to explain the lateness of her appeal to that body, and in view of the fact that there is no substantial evidence in this record to support the finding of the board that the failure to file a timely appeal was not a result of circumstances beyond the appellant’s control, . . .”

Reversed and remanded.