text:
    James Edward McDOWELL, Floyd C. McDOWELL, Donald A. McDOWELL and James L. McDOWELL v. Beatrice M. KING
    CA 79-127
    589 S.W. 2d 594
    Opinion delivered October 17, 1979
    [Petition for review denied November 19, 1979.]
    [Petition for rehearing denied November 28, 1979.]
    and released for publication November 28, 1979

      Huey & Vittitow, for appellants.

      Haley & Claycomb, for appellee.
   David Newbern, Judge.

This case was appealed to the Arkansas Supreme Court which assigned it to the Court of Appeals in accordance with Supreme Court Rule 29(3).

The suit below was brought by the heirs of Charles McDowell to quiet title in two lots located in Warren, Arkansas. The named defendant was Beatrice King who claimed title by virtue of adverse possession and tax deeds she acquired in 1975. The parties stipulated that Mrs. King’s tax deeds were invalid, but they correctly assumed that, in accordance with Ark. Stat. Ann., § 34-1419 (Repl. 1962), a party asserting title against one who has tax deeds must have been in possession within two years prior to the commencement of the action, regardless of the validity of the tax deeds. Terry v. Drainage Dist. No. 6, 206 Ark. 940, 178 S.W.2d 857 (1943); Honeycutt v. Sherrill, 207 Ark. 206, 179 S.W.2d 693 (1943); Honeycutt v. Sherrill, 207 Ark. 206, 179 S.W.2d 693 (1944); Pitts v. Johnson, 212 Ark. 119, 205 S.W.2d 449 (1947), and Sage Land & Lumber Co. v. Hickey, 222 Ark. 147, 257 S.W.2d 941 (1953). The parties, both at the trial and on this appeal, seemed to see the issue as whether Mrs. King was actually in possession of the property. As we see the issue, however, that factual determination is not controlling. Rather, the question is whether Mrs. King gave notice of her claim to Mr. McDowell or his successors sufficiently to convert her originally permissive possession into adverse possession. In this de novo review, we have no hesitancy in examining the record from this point of view. ,

Charles McDowell died intestate in 1970. Thus, the appellants, his heirs, are successors to his interest in the property in question. They contend they are not barred by the two-year statute because Mrs. King was their tenant, and thus they were in possession of the property during the time she lived there. Mrs. King contends she has been holding adversely to Charles McDowell and the appellants since she received her tax deeds, at least, thus invoking the two-year statute, and that she has been in actual, adverse possession since 1970 when she decided to make her claim to the land.

Prior to moving to California in the early 1960s, Charles McDowell and his family lived in a house on the property in question. After they left, the property was rented to Mrs. King, who was then Mrs. Martin, and her husband for $18.00 per month. The 1964 taxes were delinquent, and the property was certified to the State. That land was redeemed in the name of Charles McDowell by Mr. Martin, who was then the husband of Mrs. King. From 1965 until 1972, the taxes were paid by Mrs. King or her husband in the name of Charles McDowell. The rental payments continued only for a short period. Mrs. King testified she had “decided to claim the property in 1970” as she had talked to Mr. McDowell by telephone, and he had said she and her husband could have the house, apparently because he had no money with which to pay the taxes. Her own testiomony, however, showed her telephone conversation with Mr. McDowell to have occurred in 1965, long before she quit paying the taxes in his name.

Mr. Herbert Green, a stepson of Charles McDowell, testified that as of 1965 Mr. McDowell, who had been taken to California to live with Mr. Green, had lost his memory. Mr. Green’s testimony was that he had, on behalf of Mr. McDowell, advised Isreal Thomas, the rental agent or “go-between,” to tell Mrs. King and her husband they could stay on the property if they would keep it up and pay the taxes in Mr. McDowell’s name. Mrs. King says she received no such message.

In 1971, Mrs. King and her husband divorced, and she moved off the property, leaving her daughter to live there. The evidence conflicted as to the quality of Mrs. King’s possession thereafter, but as stated earlier, because of the view we take of this case, that evidence is not relevant.

There is no showing by Mrs. King that any notice of her claim of ownership was given to Mr. McDowell or his heirs. Mr. Green testified he first learned of the tax deed claim on a visit to Arkansas in 1976. Mr. Green is not one of the appellants, and thus even the notice to him could not be considered notice to them. Even if it could be so considered, it would have fallen far short of effecting Mrs. King’s adverse possession two years before this action was brought, as the complaint was brought in July, 1978, and Mr. Green’s visit to Arkansas occurred in September, 1976.

For permissive possession to become adverse possession, notice must be given to the owner. Still v. Still, 239 Ark. 865, 394 S.W.2d 733 (1965); Thomas v. Stobaugh, 244 Ark. 787, 427 S.W.2d 170 (1968). These cases seem to require actual as opposed to constructive notice, but in this case, there is not even a showing of constructive notice. The reason the parties stipulated the tax deeds were void was failure to conduct the tax sale in accordance with the required statutory procedures. An affidavit by the Bradley County Clerk was introduced in which he said he could find no proof of the required publication of the list of property to be sold for delinquent 1972 taxes. It was that year in which the alleged delinquency occurred which permitted Mrs. King to make her purchase.

In Laney v. Monsanto Chemical Co., 233 Ark. 645, 348 S.W.2d 826 (1961), the Arkansas Supreme Court refused to permit a claim of title by a tax deed holder even though the prior record owner knew of the tax sale where he had no notice of the attornment of his tenant to the tax deed holder.

The record contains no evidence of notice of any kind to the appellant heirs or their predecessor in title. Thus, the appellee’s claim which rests wholly on a showing of adverse possession following possession by permission must fail, and we reverse and remand for entry of a decree consistent with this opinion and for determination whether Mrs. King is entitled, under Ark. Stat. Ann., § 34-1423 (Repl. 1962), to recovery for any benefits she may have conferred on the appellants while she was in possession of the property.


source: Caselaw Access Project

author: Ernie E. Wright, Chief Judge.

license: Public Domain

text:
    Gaither White COLLIER et al v. Albert BRENT
    CA 79-129
    589 S.W. 2d 198
    Opinion delivered October 24, 1979
    and released for publication November 16, 1979

      Hale, Fogleman & Rogers, for appellants.

      Nance, Nance, Fleming & Wood, for appellee.
   Ernie E. Wright, Chief Judge.

This case was appealed to the Arkansas Supreme Court and was transferred to the Court of Appeals pursuant to Rule 29(3).

The appeal is from a decree of the Crittenden County Chancery Court quieting title to 146.84 acres of land in Crittenden County in Albert Brent, appellee, against appellants who are the children or successive descendants of W. E. White, who died in 1962 and was survived by Arrenner White and seven children by a former marriage.

Mr. White left a will, which was duly probated, leaving all real estate, not specifically devised, to his widow and children as life cotenants with the remainder to his grandchildren and successive descendants living at the date of death of the various life tenants.

Arrenner White married appellee, Mr. Brent, in 1963 and died intestate in 1973 leaving him as her sole heir at law.

Appellee alleged in his complaint to quiet title that he acquired title from his wife, Arrenner White Brent, under the law of intestate succession. The deeds by which title to the land in dispute was acquired in 1939 conveyed title to the disputed land to W. E. White and Arrenner White, his wife, and title was so held ^at the time of the death of Mr. White.

Appellants urge three points for reversal of the decree quieting title in Mr. Brent and these will be separately discussed.

I.

Appellants contend that the court erred in holding Mrs. Brent did not waive and abandon title.

Appellants cite Sirmon v. Roberts, 209 Ark. 586, 191 S.W. 2d 824 (1946). The case as to waiver involves only a waiver of a right to receive written notice of intention to terminate a teacher’s contract. We do not accept the case as authority for waiving or abandoning an interest in real estate.

Appellants also cite Helms v. Vaughn, 250 Ark. 828, 467 S.W. 2d 399 (1971). The case holds that one cannot divest himself of title to land by abandonment alone and that for abandonment to be effective there must not only be an intent on the owners part to relinquish his claim, but the intent must be accompanied by circumstances of estoppel and limitation, if the abandonment is not by a legal instrument of conveyance.

There was evidence offered that Mrs. White had made statements before and after the death of Mr. White that she did not want the land in question and the record shows the executor failed to take the marital deduction credit for the value of the land in the estate tax return by showing that this land passed to the widow. The land was included in Mr. White’s estate tax return at a valuation of $30,000.00 but the return failed to claim the land as being a part of the marital deduction. This resulted in additional estate taxes in the aggregate amount of $8,669.93. The tax was paid out of the assets of the estate before distribution to appellants and they contend the appellee, who now stands in the shoes of his predecessor, Arrenner White Brent, is estopped to claim the land because of disadvantages they say they suffered by reason of the larger estate taxes. We find and hold the evidence does not establish this extra tax burden was caused by Mrs. White. The estate tax return was the responsibility of Mr. Bird, the executor nominated in the will of Mr. White. Also, it is noted that Mrs. White did include the substantial rentals she received from this land during her eleven years of life after the death of Mr. White in the net distribution of rents she shared with appellants. They received seven-eighths of the net rentals from the land in dispute, along with other rents from estate lands, whereas Mrs. White as sole owner was entitled to receive all of the rent from the land in dispute. We are unable to say that appellants have in any way been disadvantaged by any actions of Mrs. White, even though they might be disappointed in that she never did execute any conveyance of the land to appellants.

II.

Appellants contend the court erred in holding appellee was not estopped to assert ownership by the actions of Arrenner White Brent.

The doctrine of estoppel arises to prevent an injustice to one who has in good faith relied upon the action, representations or conduct of another to his detriment. Baker-Matthews Lumber Co. v. Bank of Lepanto, 170 Ark. 1146, 282 S.W. 995 (1926).

As we have already stated, the facts in the present action fail to disclose detrimental effects from any actions, representations or conduct of appellee or his predecessor in title, Mrs. Brent.

III.

Appellants contend the court erred in holding Mr. Brent was not barred from asserting title by laches of Mrs. Brent.

It is contended the statements and actions of Mrs. Brent indicating she claimed no interest in the land in dispute over a period of several years, coupled with the use of some of the rental proceeds from estate lands in paying taxes and maintenance on the land in issue and the collection of a five per cent commission on rents on estate lands, now bars appellee from asserting ownership under the doctrine of laches; and that Mr. Brent in waiting over four years to file his action to quiet title caused appellants to pay taxes on the property in dispute for three years after Mrs. Brent’s death. Appellants were volunteers in paying taxes they had no duty to pay and such payments had no effect upon the title.

The evidence discloses no inexcusable delay in assertion of title. The tenant of the land in dispute instituted an in-terpleader action in Federal Court in 1974 making appellants and appellee parties and has paid rents into the register of the court in that action. As to Mrs. Brent, she exercised control over the leasing of the land during her life time, even though she shared the rent with the heirs of W. E. White. We find no basis for saying Mrs. Brent was guilty of laches that bars appellee from asserting title.

In Avera v. Banks, 169 Ark. 718, 271 S.W. 970 the court said:

There is no hard and fast rule as to what constitutes laches. It is well settled that a court of equity may, in the exercise of its own inherent powers, refuse relief where it is sought after undue and unexplained delay, and where injustice would be done in the particular case by granting the relief asked. It is usually said that the two most important circumstances in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other in so far as it relates to the remedy. (Citing cases).

We find no injustice caused by any delay on the part of Mr. or Mrs. Brent in asserting title.

Unquestionably the record shows that Mrs. Brent was the sole owner of the land in question upon the death of W. E. White, and the record does not warrant a conclusion upon any theory that the title passed in some fashion to the heirs of W. E. White.

The decree of the Chancellor was not against the preponderance of the evidence or contrary to law.

Affirmed.


author: M. Steele Hays, Judge.

text:
    Alice BRADLEY et al v. Carl TEAGUE, Jr. et al and AMOCO PRODUCTION COMPANY
    CA 79-126
    589 S.W. 2d 200
    Opinion delivered October 24, 1979
    and released for publication November 16, 1979

      McKay, Chandler & Choate, by: R. L. Choate, for cross-petitioner.

      Smith, Stroud, McClerkin, Dunn & Nutter, by: Hayes C. McClerkin, for appellants.

      Keith, Clegg & Eckert, for appellees.
   M. Steele Hays, Judge.

This case involves conflicting claims to mineral interests underlying a 32-acre tract in Columbia County. Appellees, Carl Teague, Jr. and Mary Sue Franklin Teague, his wife, and Ann Lewis Rives, the original plaintiffs, brought suit to quiet title to a portion of the mineral interests under the tract against Alice Bradley, Mary Jane Short, Gordon S. Foster, and Lucy Foster, his wife, the original defendants. Other parties came into the litigation as intervenors and additional defendants. The claim of appellees rests upon the ownership of Indiana Hanson Russ and the claim of appellants rests upon the ownership of other members of the family of Thomas Hanson, Sr.

The pertinent history of the lands is as follows: in 1919, Thomas Hanson, Sr. and his wife conveyed an undivided 1/16th non-participating royalty interest in the minerals under 192 acres of a larger tract (710 acres) which included the 32-acre tract involved in this litigation. In 1936, Hanson died intestate, survived by his widow and six children, one of whom was Indiana Hanson Russ.

In 1940, the widow and all of the Hanson children met at the home of Thomas Hanson, Sr., and entered into an oral division of the lands owned by Thomas Hanson, Sr., by which Indiana received a 112-acre tract, including the 32-acre tract in question. Jessie Hanson received a 120-acre tract; four children received tracts of 100 acres each; and the widow a life estate with power to execute oil and gas leases under the lands set apart to her and to receive bonuses and delay rentals thereunder. Each child entered into possession of the tract acquired under the oral division and made improvements thereon.

In September of 1949, a deed partitioning the lands according to the agreement was drafted which the family members signed with the exception of Indiana Hanson Russ who refused to do so. The widow and other five children filed a complaint and Lis Pendens in Chancery Court, naming Indiana Hanson Russ as defendant. A decree was entered which divested Indiana Hanson Russ of her undivided interest in the lands of Thomas Hanson, Sr., except for the parcel set aside to her under the family settlement and investing title in her to that portion which was hers. The decree confirmed the division by the family settlement and quieted the title of the respective parties as against all claims of the other parties.

On May 9, 1964, Indiana Hanson Russ conveyed unto Carl Teague, Jr., and Mary Sue Franklin Teague, his wife, the surface of the 32 acres and by a mineral deed of even date an undivided Vsths interest in all of the oil and gas thereunder. Subsequently, Ann Lewis Rives acquired the surface ownership and an undivided one-half of the %ths of the mineral ownership.

In 1944, R. S. Foster acquired a tax deed to the 32 acres and several conveyances followed; in 1949 the heirs of Thomas Hanson, Sr., other than Indiana Hanson Russ, conveyed to Mr. Foster a one-half mineral interest under the 32-acre tract as well as other Hanson lands and the original defendants (appellants) are the sole heirs of R.S. Foster. Amoco’s claim is based on leases from both branches of the Hanson family and other parties to the suit claim fractional interests in the minerals from various sources.

In the suit below, plaintiffs claimed that their title was good as deraigned from Indiana Hanson Russ, her title having been acquired by reason of the family settlement. The defendants, on the other hand, claim that the heirs of Thomas Hanson, Sr., continued to own undivided interests in common in the minerals under all of the Hanson lands, the family settlement having had the effect of dividing only the surface lands and not title to the minerals. In short, appellants contend that the doctrine of Johnson v. Ford, 233 Ark. 504, 345 S.W. 2d 604 (1961) applies.

The issue, therefore, presented by this multisided suit is whether the family settlement in 1940 and the chancery decree, vested title in fee simple in the heirs of Thomas Hanson, Sr., to the tracts each separately received, or, only title to the surface. If in fee simple, then the plaintiffs are entitled to have their title quieted.

The case was submitted to the Chancellor largely on the stipulation and documentary evidence, following which the Chancellor granted the plaintiffs’ suit to quiet title to the mineral interests claimed, holding that Johnson v. Ford, supra, did not apply and relying on those decisions favoring family settlements. The defendants appealed, assigning as error that the Chancellor should have applied the ruling in Johnson v. Ford, supra.

We think the Chancellor was correct and we concur in his construction of the Johnson v. Ford holding. A number of reasons for distinguishing Johnson v. Ford from the present case are apparent. For one thing, in Johnson, a voluntary partition occurred, whereas here, the division of the lands was by reason of a family settlement. Family settlements are looked on with favor by the Arkansas Supreme Court. Tate v. Johnson, 15 Ark. 275 (1854); Pfaff, Administratrix v. Clements, 213 Ark. 852, 213 S.W. 2d 356 (1948). In Pfaff, supra, Justice McFadden, speaking for the Court, stated:

... it is not essential that the strict mutuality of obligation or the strict legal sufficiency of consideration — as required in ordinary contracts — be present in family settlements. It is sufficient that the members of the family want to settle the estate; one person may surrender property and receive no quid pro quo.

Moreover, it is reasonable to conclude that the parties to the family settlement in the case at bar had the intention of fully settling the estate. Unless another rule of property applies which would lead to a contrary result, we believe that this rule is the controlling factor.

Appellants insist that the rule in Johnson v. Ford, supra and Hutchinson v. Sheppard, 225 Ark. 14, 279 S.W. 2d 33 (1955) applies. In Johnson, one of the heirs of A.H. Hadley conveyed his undivided one-third interest to a 38-acre tract of land to Willie Johnson in fee simple. The other two Hadley heirs conveyed their undivided two-thirds interest to Ernest Ford, but retained 5/12ths interest in the minerals. The two purchasers voluntarily partitioned the 38-acre tract by an exchange of warranty deeds. Later, C.G. Johnson purchased the interest of Willie Johnson and brought suit for a reformation of the partition deed, asserting that the parties had intended only to divide the surface interests and by mistake had divided the mineral interest. The chancellor dismissed the complaint, but on appeal, the Arkansas Supreme Court reversed the ruling of the chancellor. The court reiterated its ruling in Hutchinson v. Sheppard, supra — that “where the parties to a partition deed own two estates in the land, one in common and in the same ratio as the division and the other not in common and therefore not in that ratio, the deed should be construed as a conveyance only of the estate held in common.” Hence, since there was a 5/12ths mineral interest oustanding in the name of the Hadley heirs, then the court held that this rule was applicable.

Consequently, we would be compelled to apply the rule in Johnson except that distinguishing factors are present in the instant case. As the chancellor stated in his opinion, had this agreement been the result of merely a partitioning deed, we would be compelled to accept the rule of Johnson. However, this division of property came about as the result of a family settlement. As was stated earlier, family settlements have been strongly favored and liberally construed by the Arkansas Supreme Court. There is no limitation in the family settlement which would lead us to the conclusion that only the surface rights were divided.

Additionally, the plaintiffs in this case and Amoco Production Company were bona-fide purchasers without notice of the claims of the appellants. This factor was not present in the Johnson case as the court properly recognized:

In this case we are not called upon to decide to what extent a bona fide purchaser might be bound by the rule in question . . . Here no one claiming to hold under Ernest Ford has met the burden of proving himself to be an innocent purchaser; so that issue does not raise.

Moreover, as the chancellor observed, Johnson departs from a long standing and recognized rule of property that a deed accurately describing the lands and without reservation, includes the minerals as well as the surface. Long Prairie Levee District v. Wall, 227 Ark. 305, 298 S.W. 2d 52 (1957); Osborn v. Arkansas Territory Oil and Gas Company, 103 Ark. 175 (1912). While the rationale of Johnson is sound, we do not believe it should be broadened beyond the immediate circumstances to which it was held applicable, that is, before innocent parties have entered the picture.

In concluding that the Hanson heirs contemplated that the mineral interests were divided by the oral division of the surface lands, the court below noted that the 1950 decree recited that the effect of the division was to quiet title of each heir as against all claims of the other heirs, language which would obviously be inappropriate if the heirs continued to own individual mineral interests under lands belonging to another. Also, the suit to interpret the effect of the 1919 contract to Owen and Ware (See footnote 1) was undertaken by Jessie H. Hanson alone, whereas the other heirs presumably would have joined in that litigation if it was understood that the minerals were still held in common. Too, Indiana Hanson Russ would have owned only an undivided one-sixth in the minerals if the minerals continued to be held in common, whereas, she undertook to convey larger interests after the family settlement to include the minerals, nor did the other Hanson heirs attempt to exercise dominion or control over the mineral interests in the tract of Indiana Hanson Russ at any time after the decree in 1950. Finally, the provision in the family settlement giving Lucy Hanson a life estate with the right to exercise oil and gas leases and receive the royalty benefits without the other heirs joining in such instruments is seen as a further expression of the intention that all rights and interests in the Hanson estate were divided by the settlement. Perhaps most significant to all is that in Johnson v. Ford the effort to reform the partition deed was undertaken within a relatively short time, and before innocent purchasers became involved, whereas here, many years elapsed and numerous conveyances occurred, before any effort was made to apply the premise of Johnson v. Ford. To apply the Johnson rule to the case before us would be a clear injustice.

The decree of the chancellor is, accordingly, affirmed.

      On November 28, 1919, Thomas Hanson, Sr. and his wife, entered into a contract with S.A. Ware and W.T. Owens which was subsequently interpreted by the Supreme Court of Arkansas, Hanson v. Ware, 224 Ark. 430, 274 S.W. 2d 359 (1955) as conveying an undivided l/16th nonparticipating royalty interest in oil and gas from a tract comprising 192 acres of the Hanson lands, including the 32-acre tract in question.

      Case No. 1460, Chancery Court of Columbia County, Arkansas, Second Division.

      The Clerk’s Deed of Tax Sale described the lands as:
      32 A N.E. 14 N.E. 14
      Section 33, Township
      19 South, Range 19 West
      which the chancellor held to be void for want of a good description.


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

text:
    ST. PAUL FIRE AND MARINE INSURANCE COMPANY v. Jim PROTHRO
    CA 79-133
    590 S.W. 2d 35
    Opinion delivered October 24, 1979
    [Petition for review denied December 3,1979.]
    and released for publication December 5, 1979

      Shackleford, Shackleford & Phillips, P.A., for appellant.

      Brown, Compton & Prewitt, for appellee.
   James H. Pilkinton, Judge.

Appellee Jim Prothro, a 76-year-old man, was a patient in Warner-Brown Hospital at El Dorado, Arkansas, with a fractured hip. Following surgery on October 21, 1974, to implant a prosthesis or metal ball into the right hip, Mr. Prothro developed an infection of staphylococcus aureus, commonly known as a staph infection. He alleges this infection was acquired as the result of an incident during physical therapy when the patient’s surgical wound was reopened.

This appeal is from a judgment of the circuit court entered on a jury verdict for appellee in the sum of $75,000,0o.

Appellant contends there is no substantial evidence to support the verdict.

The tests to be used in reviewing the findings of a jury on appeal are well established in Arkansas. As to the substan-tiality of the evidence, we will not disturb the jury’s conclusion on appeal unless we can say there is no reasonable probability in favor of appellee’s version, and then only after giving legitimate effect to the presumption in favor of the jury findings. Beard v. Coggins, 249 Ark. 518, 459 S.W. 2d 791 (1970); Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W. 2d 822 (1968), and Lumbermens Mutual Ins. Co. v. Cooper, 245 Ark. 81, 431 S.W. 2d 256 (1968). Further, in testing the sufficiency of the evidence as being substantial on appellate review, we need only consider the testimony of the appellee and that part of the evidence which is most favorable to the appellee. Love v. H. F. Construction Company, 261 Ark. 831, 552 S.W. 2d 15, 17 (1977).

The evidence, viewed in the light most favorable to appellee, shows that following the surgery Mr. Prothro was in the hospital and was making a normal recovery. Part of the post-operative treatment involved physical therapy in a whirlpool bath, known as a Hubbard bath. A hospital attendant was lowering Mr. Prothro in a basket swing over the Hubbard bath when a chain attached to the basket came apart allowing Mr. Prothro to fall. The attendant caught the patient, and broke his fall somewhat, but a part of the metal basket struck Mr. Prothro on the right hip reopening his surgical wound. As a result, the wound began to bleed and was exposed to the unsterilized bath water. Subsequently, an unsterilized bath towel was placed over the wound by the orderly to stop the blood; and the patient was returned to his hospital room. The incident was reported to the duty nurse, but the nurses treating Mr. Protho did not examine or cleanse the wound but only reclosed it with surgical tape. The hospital should have made a record of the incident but did not. Dr. Joseph B. Wharton, who was Mr. Prothro’s doctor, inspected the wound the next day and discontinued any further whirlpool baths. Prior to the accident in the bath, none of the doctors or nurses treating Mr. Prothro had informed him that he was suffering from an infection. He testified no symptoms of infection were evident to him.

Mr. Prothro first noticed that he was having problems several days after the incident in the Hubbard bath. He experienced rigor and began to ache all over his body. He had a fever and was told for the first time he had an infection. These problems continued after appellee was released from the hospital, and the area around the surgical wound was red and inflamed. Additional surgery on Mr. Prothro’s hip was necessary and the infection required the removal of the artificial prosthesis that had been placed in the hip. The second operation was performed on February 18, 1975, by Dr. William S. Bundrick, an orthopedic surgeon, of Shreveport, Louisiana. Appellee attributes the staph infection of his hip to the incident in the Hubbard bath.

It is admitted by all that Mr. Prothro suffered a severe infection.

Appellee now has no ball or joint in his hip. He has what is known as a “flail” hip, and there is several inches difference in the length of his right leg as compared with the left. He walks with a limp, and it is undisputed that there is considerable and serious permanent damage to Mr. Prothro’s body.

Appellant also admits, for the purpose of appeal, that the occurrence in the Hubbard bath constituted negligence. The main issue, therefore, is whether there is sufficient evidence that such negligence — the incident during physical therapy — caused the staph infection.

Appellant contends there is no substantial evidence that appellee’s staph infection was proximately caused by hospital negligence. Mr. Prothro’s testimony, as a layman, standing alone leads to a reasonable conclusion that the staph infection did not exist prior to the reopening of the surgical wound and was the result of the occurrence in the bath. Appellant contends, however, that if the origin of the injury is subjective or obscure and not readily apparent to a layman, or there are several probable causes of the condition, medical testimony is essential to establish causation. Appellant says this is such a case, and claims appellee is lacking substantial expert testimony necessary for this issue to have been properly submitted to the jury.

As pointed out in Davis v. Kemp, 252 Ark. 925, 481 S.W. 2d 712, (1972) the applicable rule in malpractice cases is well settled in Arkansas. Quoting Graham v. Sisco, 248 Ark. 6, 449 S.W. 2d 949 (1970), our Supreme Court said:

The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S.W. 2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of the jury or laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.

This is an action for damages based upon negligence, not malpractice. However, appellant says the same rule should be applied to an issue of causation such as we have before us. In other words, appellant contends the cause of the hospital staph infection in the case before us would not be a matter of common knowledge to the jury, and therefore some expert testimony is required. It is not necessary for us to decide that specific question, and we do not do so, because there is some expert testimony favorable to appellee in this case. There is also proof that an unsterilized towel was placed over the reopened wound.

Dr. Bundrick said the presence of staph bacteria is noted in hospitals, the reason being you have sick people there. He said you can’t explain staph infection, and it is a serious danger to open wounds. Both doctors testified that the medical profession, under present conditions, does not fully understand all the causes of staph infections, and does not know how to control it entirely.

As to whether or not the fall and reopening of the wound in the bath is relevant as a factor in determining transmission of the “staph” to Mr. Prothro, the following testimony by Dr. Bundrick, the orthopedic surgeon who performed the second operation and removed the metal ball from the hip, is applicable:

Q, And then doctor, if we didn’t know anything about medicine, if we were a lay jury, and we were just using our own reasoning capacities and if he didn’t have the staph infection and he had hip surgery that went all the way to the joint and then he broke the wound open and got a staph infection at that site, we would almost of reason necessarily relate the two, would we not?
A. Yes, you would if you know he had a staph infection at the site.
Q. As a matter of fact, he did have a staph infection at the site, did he not?
A. I can’t say that because I don’t know of any culture of that wound.
Q. But, doctor, the only place this staph infection manifested itself was at the site of the hip surgery, was it not?
A. Yes, deep in the hip.
Q. He didn’t have any manifestation of staph infection anywhere else in his body, did he?
A. Not at the time I saw him.
Q. And your entire treatment was for staph infection of that right hip at the site of that surgery?
A. That’s correct.
Q. And that’s where his trouble was?
A. That’s correct.

At another point in his testimony, Dr. Bundrick was asked the following questions:

Q. Assuming what Mr. Prothro said to be true that in the physical therapy situation and the device used to lift him in the tub collapsed and fell on him and broke open this wound, would that breaking open of that wound make that wound in the hospital a source of bacterial infection? That is, an opening for bacterial infection?
A. Yes, I think anything that opened the wound back up would make it susceptible to infection.
Q. Would it be more susceptible to infection that it was after it was sutured?
A. Yes.
Q. Considerably more, would it not?
A. Yes.
Q. Isn’t it not true that the opening of a wound in the hospital away from the operating room where bacteria is fought out, is it true that the opening in the hospital away from the operating room is very dangerous?
A. Yes, unless you are talking about like letting it drain out.
Q. I am talking about accidental opening of a wound after a surgical procedure.
A. Yes, it would be a danger of infection.

There is other medical testimony favorable to appellee, and we cannot agree with the appellant that there is no medical testimony in the record supporting plaintiff-appellee’s theory that the staph infection was caused by the incident in the Hubbard bath. And upon this point, the testimony of Mr. Prothro is entitled to some probative weight. He states that the pain which attended the staph infection did not develop or exist until after the fall in the bath which reopened his surgical wound. While his testimony was that of a layman, he would probably testify to those things or facts in connection with his bodily injuries or conditions which a layman as distinguished from a man of science is capable of observing.

In Lanier v. Trammell, supra, the Supreme Court quoted with approval the following principle of law:

Dr. Herzog, in his “Medical Jurisprudence,” discusses the quantum of proof necessary to sustain a recovery for malpractice, lays down this rule (pp. 161, 162, § 186): “It is not necessary to prove beyond a shadow of a doubt that an injury was caused by the negligence preceding it, but a showing of strong probability of the causal relation is sufficient . . . Where negligence and injury are proved, a causal connection between them may be established by circumstantial evidence, by inferences from physical facts.”

Though the evidence is circumstantial, this does not mean it must be conclusive beyond a reasonable doubt. Kapuschinsky v. United States, 248 F. Supp. 732 (1966). The legal burden upon appellee does not become onerous because the evidence is circumstantial, though as pointed out in Kapuschinsky the “burden of persuasion” is necessarily more difficult. In cases of this nature, direct evidence is difficult to obtain. The court in Lanier v. Trammell, supra., also quoted with approval from Helland v. Bridenstine, 55 Wash. 470, 104 P. 626, where the Supreme Court of Washington said: “Respondent was not required to prove her case beyond a reasonable doubt nor by direct or positive evidence. It was only necessary that she show a chain of circumstances from which the ultimate fact required to be established is reasonable and naturally inferable.”

In Longfellow v. Vernon, 57 Ind. App. 611, 105 N.E. 178, at 185, it is stated:

When facts having some testimony to prove them are stated hypothetically to a witness having the requisite scientific knowledge to form and express an opinion thereupon, and he gives his expert opinion based thereon, such evidence is to be considered by the jury along with other testimony in the case, and should be given such weight as the jury, under proper instructions from the court, may deem it to merit. The fact that all or a part of the statements in such hypothetical question may depend entirely for proof upon the evidence of the nonexpert witnesses who have testified to them will not deprive such testimony of probative value, but the expert testimony based thereon will be weighed and considered by the rules governing the weight of such testimony generally; and, if a fact supported by such proof be found by the jury, it cannot be said to be the result of a mere guess, or to be wholly unsupported by evidence.

We think this is a sound rule, and is applicable to the case before us.

The Arkansas law on the use of hypothetical questions is well settled. New Empire Insurance Co. v. Taylor, 235 Ark. 758, 362 S.W. 2d 4 (1962), Shaver v. Parsons Feed & Supply Co., Inc., 230 Ark. 357, 322 S.W. 2d 690, see also Taylor v. McClintock, 87 Ark. 243 at 294. No objection was made to any of the hypothetical questions asked in the case before us and counsel for defense had the opportunity to put additional facts, not included in the original question(s), before the medical witnesses on cross-examination.

In the case of Robertson v. LaCroix, Okla. App. 534 P. 2d 17, (1975), after stating the principle that some expert testimony is required, the court said:

However, testimony of a medical expert witness that an injury could have been caused by a certain event, together with the corroborating evidence of a layman as to those facts concerning the injury which a layman is capable of observing may be sufficient to allow the issue of causation to be submitted to the jury.

The mere fact of infection in a hospital is not enough to open the door to awarding of damages. See Bartlett v. Argonaut Insurance Companies, 258 Ark. 221, 523 S.W. 2d 385 (1975), Aetna Casualty & Surety Co., v. Pilcher, 244 Ark. 11, 424 S.W. 2d 181 (1968). However, these cases can be distinguished on their facts from the present litigation.

The evidence here is in sharp dispute, and every issue or important fact involved was hotly contested in the trial below. For example, Mr. Prothro testified that his wound “burst” open, and his testimony is to the effect that the surgical site was broken open deeply and in a material way. Dr. Wharton on the other hand did not think so although the doctor had no personal recollection of the incident and had made no record concerning this phase of the matter. Dr. Wharton could not even remember when Mr. Prothro first reported the occurrence in the Hubbard bath to him. The doctor thought it was after Mr. Prothro was discharged from the hospital but could not be certain. He admitted that he stopped the baths in early November about the time Mr. Prothro says he told Dr. Wharton. Doctors are busy people, and are in most cases over worked. It is understandable that Dr. Wharton could not remember all of the details after a material lapse of time. Then too, Dr. Wharton was dependent to some degree on records made by the people in the hospital which records, the evidence indicates, were not very reliable or complete in many respects.

Although Dr. Bundrick and Dr. Wharton were of the opinion the fall and reopening of the wound in the bath did not cause Mr. Prothro’s staph infection, a part of Dr. Bun-drick’s testimony does support appellee’s theory of the case. This together with the testimony of Jim Prothro and Richard James was sufficient to justify the trial court in overruling the defendant’s motion for a directed verdict, submitting this issue to the jury, and in denying the prayer of defendant for a judgment not withstanding the verdict.

Even though we feel that the strongest evidence on the issue of causation was offered by appellant, this fact, of course, would not justify a reversal. We are only permitted under the law to determine whether there was any substantial evidence to support the view of the prevailing litigant. Mallett v. Brannon, 246 Ark. 541, 439 S.W. 2d 32, (1969). The evidence is in sharp dispute, and every issue involved was hotly contested in the trial below. Each issue was submitted to the jury under proper instructions which are not questioned on appeal. The jury has decided the fact issues in favor of the appellee, and we cannot conscientiously say there is no substantial evidence to support the verdict.

Appellant also argues that the verdict is excessive because the amount awarded by the jury included the consequences of staph infection. We need not consider this argument since we find the issue involving staph infection was properly submitted to the jury.

Affirmed.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. I would reverse. Although I have great reluctance to overturn a jury verdict, it is unsupported by the evidence. Harmon v. Ward, 202 Ark. 54, 149 S.W. 2d 575 (1941); A.S. Barboro & Co. v. James, 205 Ark. 53, 168 S.W. 2d 202 (1943); Nuckols v. Flynn, 288 Ark. 1106, 312 S.W. 2d 444 (1958). The verdict reflects sympathy felt by the jury for the injured plaintiff. I, too, feel compassion for the 76-year-old appellee who has obviously suffered greatly. However, I do not feel there is evidence this suffering was proximately caused by the negligent act of the appellant.

The majority finds the answer to the “hypothetical question” propounded to Dr. Bundrick upon redirect examination to be substantial evidence. Here they have enlarged the importance of this exchange between appellee’s attorney and Dr. Bundrick.

Q. And then, doctor, if we didn’t know anything about medicine, if we were a lay jury, and we were just using our own reasoning capacities and if he didn’t have the staph infection and he had the hip surgery that went all the way to the joint and then he broke the wound open and got a staph infection at that site, we would almost of reason necessarily relate the two, would we not?
A. Yes, you would if you know he had a staph infection at the site.
Q. And as a matter of fact, he did have a staph infection at the site, did he not?
A. I can’t say that because I don’t know of any culture of that wound.

This “hypothetical question” is deficient for two reasons:

1. Hypothetical questions can only be posed to experts. It is their design to make use of the expert’s special knowledge and expertise — knowledge and expertise not possessed by a lay jury. The question asked of Dr. Bun-drick asked the expert to abdicate as an expert. His answer is thus lay opinion. “. . . if we didn’t know anything about medicine, if we were a lay jury. . . .” Bartlett v. Argonaut Ins. Co. 258 Ark. 221, 523 S.W. 2d 385 (1975) and Aetna Casualty & Surety Co. v. Murl Pilcher et al, 244 Ark. 11, 424 S.W. 2d 181 (1968) require medical testimony in cases of this nature. This exchange is offered as expert medical testimony as to causation, when in reality it is of no more value than lay testimony. This is not enough to support the verdict.
2. “. . . then he broke the wound open and got a staph infection at that site ...” There is no evidence in the record of staph being detected at the site of the opening of the wound. Dr. Bundrick, on cross-examination, testified there was no evidence of infection at the site of the wound:
Q. Dr. When you saw Mr. Protho in February 1975, what was the condition of the surgical wound when you saw it?
A. Surgical wound was well-healed.
Q. Wat it draining?
A. No.
Q. Based upon this finding, doctor, did you have an opinion as to whether the infection developed at the surgical site?
A. In my opinion, it would be a blood-borne infection because this would be really the only way you could get the infection into the hip joint proper without having a draining sinus. If it came from without and the wound area, I would expect a draining sinus or track which goes down to the hip joint.
Q. In other words, if the staph micro-organism made its entry through a portal being the surgical incision you would expect to have found infection from within the surgical incision itself down into the hip joint?
A. Right, a draining sinus track.
Q. In this particular case, you found none when you first examined him on the first occasion?
A. No, the wound was well-healed.
Q, Did you understand in the history and material that you were able to review that that was true, that the wound never drained?
A. That’s correct.

The answer to the “hypothetical” question is predicated upon there being a staph infection at the site of the opening of the wound. There is absolutely no evidence in the record that the staph infection manifested itself at the opening of the wound. If there is no evidence at all, certainly there is no substantial evidence.

Although the new rules of evidence, particularly 702, permit an expert to give his opinion directly, the appellee resorted to a “hypothetical” question, assuming a fact not in evidence, in order to try to get the desired answer from his own witness, Dr. Bundrick, and circumvent Dr. Bundrick’s unfavorable testimony. The appellee has abused his witness’ testimony.

The jury are apt, especially where there are many expert witnesses and the evidence is voluminous, to remember and accept merely the net opinion of a witness, with little or no reference to the special premises on which it was based. Thus, if a counsel were to select from the testimony the evidential circumstances most favorable to his party, or those least favorable to his opponent, and obtain an opinion thereon, it is obvious that if the jury forgets the partial nature of the opinion’s premises, the opinion may count with them, when perhaps it ought not to count at all. Now the law and the judge cannot, of course, be expected to reject legitimate offers of evidence simply because the jury may occasionally fail to perform its duty intelligently. But the Court may well interfere to prevent questions which are under the circumstances practically valueless, and are either intended or fairly likely to mislead the jury. Some Courts, looking at the not uncommon abuse of the hypothetical question, have properly attempted to forbid the putting of questions whenever the abuse of this sort is probable. 2 Wigmore on Evidence, §682, at page 808-809 (Third Edition, 1940).

Dr. Bundrick’s answer to the “hypothetical” question is the only testimony by a medical expert which supports the appellee’s contention of proximate cause. As a matter of law this hypothetical question posed by the appellee was deficient. The affirmance of the majority based on this “hypothetical” question demonstrates why Wigmore wants courts to abolish the use of the hypothetical question.

The hypothetical question, misused by the clumsy and abused by the clever, has in practice led to intolerable obstruction of truth. In the first place, it has artifically clamped the mouth of the expert witness, so that his answer to a complex question may not express his actual opinion on the actual case. Wigmore, supra §686.

nd no evidence to support the jury verdict other than that of the plaintiff himself. This is not enough. In a situation where the injury or damages are beyond the normal experiences and understanding of a jury, expert testimony is required. This expert testimony does not exist.

The appellant has admitted liability for the negligent incident of the hospital. I would reverse and remand for a determination of the damages owed appellee due to the negligent incident itself. Therefore, I respectfully dissent.

      This case was appealed to the Arkansas Supreme Court, and by that court assigned to the Arkansas Court of Appeals under Rule 29(3).

      See Whaley v. Fowler, 152 Cal. App. 2d 379, 313 P. 2d 97 (1957), where medical testimony was not required.

      In Kapuschinsky v. United States, 248 F. Supp. 732 (1966) judicial notice was taken of what that court termed a well recognized reluctance of members of the local medical profession to testify in cases where a hospital is charged with negligence.


author: George Howard, Jr., Judge.

text:
    Larry CURETON v. STATE of Arkansas
    CA CR 79-61
    Opinion delivered October 24, 1979
    and released for publication November 16, 1979

      Pryor, Robinson, Taylor & Barry, for Appellant.

      Steve Clark, Atty. Gen, by: Robert J. DeGostin, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Judge.

On January 24, 1978, appellant entered a plea of guilty to charges of forgery and uttering a $28.00 check. He was sentenced to the Department of Correction for five years, with four years suspended, on the forgery count and was placed on probation for five years on the uttering charge.

On February 5, 1979, the Prosecuting Attorney for Sebastian County filed a petition to revoke appellant’s suspended sentence and term of probation. Appellant allegedly went to the Foxfire Club, a private dub in Fort Smith, and, after having been denied admittance because he and an associate were dressed ih blue jeans, broke into the club and assaulted the manager; and that this conduct was done in violation of his probation and suspended sentence; that appellant’s associate, Jackie Queen, was a known felon.

On February 8, 1979, the trial court, after conducting a revocation hearing, revoked appellant’s probation and suspended sentence and sentenced the appellant to the Department of Correction for four years on the forgery charge and ten years on the uttering count, with both sentences running concurrently. The court suspended two years of the sentence.

Appellant contends that the trial court abused its discretion in revoking his prior sentence and probation; and that the imposition of the maximum sentence on the uttering count is a further abuse of the court’s discretion.

In Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149 (1977), the Arkansas Supreme Court in holding that “abuse of discretion” would no longer be the standard to be used in evaluating a trial court’s finding in a revocation proceeding, stated:

... A court may revoke the probation, enter a judgment of conviction, and impose any sentence that may have been imposed originally for the offense ‘if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation.’ . . . (Emphasis added.) See also: Ark. Crim. Code § 41-1208(4) and (6) (1977 Repl.)

After reviewing the record, we cannot say that the trial court’s finding that appellant had inexcusably failed to comply with the condition of his probation and suspended sentence :' r.i ■ m. cl, Ah nco ns¡i<i, w cording- ' |

Api'vfvj cm nr nasi ■’ by advhed by the trim court, when appdbvy ww sniiikw, , w y. bubón and given the suspense! , >, (fence, tter» bis probation .wad suspended sentence wee. -ondMonc'd "u; bis gown fcWwdor, that appellant wi*...: ; spccted tí» livw as si good ’biding citizen and to get /¡erg with people, that appdtort must not associate with persons who hove criminal meords; ?*nd¡ that appellant was «o# to frequent '‘bust joints.”

Appellant. ¿ximitted that prior io his arrival at the Foxfire Club, be ¿jad visited the Relay Station, a bar ini Fort Smith; that he left the Rebuy Station with Jackie Queen, a convicted felon, aí appiOjriUwsticly 2:00 a.m.; and-'ha? he had one “Pony ikidwexaer” beer earlier in the evening- Appellant acknowledged that he was Involved in an altercation at the Foxfire Club, hunt insisted til at he was not the aggvrjsof. I* is dear da! appellant and Jaríde Queen were seeking to enter the Foxfire Chub «ver the objections of the manager because they went: dressed in blue ¡jeans; that the altercation grew out of appellant’s efforts to gam entry into the dub; and that appellant and Jackie departed after an employee at the club ordered them away at gun point.

Appellant argues that the trial court committed error In taking into considera* ion, in revoking his probation and suspended sentence, that appellant had been associating with Jackie (Queen, a convicted felon. Appellant contends that Jackie is Ids first, coonsin and that they were virtually reared in the same household .end Jackie is regarded as a member of appellant’s immediate family. Consequently, argues appellant, the condition imposed relating to appellant’s non-association wish perenne who have criminal recordé should not apply muks the circumstances existing in this case. We are not Impressed wills appellant’» argument inasmuch as it is dear that appellant and Jackie Queen, at the time that appellant received the suspended sentence and probation, were not residing in she js&mhc household and the trial murt made it crystal dear that appellant was not to associafr cfit» any person who fiad a ct ¿urinal record. Moreover, if ap^.-luat was uncertain about the application of the condition to his cousin or if the need arose where it became necessary for appellant to visit his cousin or to share accommodations, appellant could have either checked with his parole officer or the trial court for direction and guidance.

Finally, appellant argues that when the trial court imposed the probation and suspended sentence, he was led to believe that in the event his probation and suspended sentence were revoked, the court would impose a sentence equal to the original suspended term and the probationary period; and for the trial court to sentence him to ten years on the uttering charge instead of five years, appellant was denied due process of law since he was not duly notified of the potential sentence to which he may be subjected. Appellant makes this argument for the first time at the appellate level. It is well recognized that an appelláte court will not consider a question raised for the first time on appeal. Hughes v. State, 246 Ark. 723, 574 S.W. 2d 888.


author: David Newbern, Judge.

text:
    DEBOHA II v. James SUMMERLIN et al, Members of The LITTLE ROCK BOARD OF ZONING ADJUSTMENT
    CA 79-122
    Opinion delivered October 24, 1979
    and released for publication November 16, 1979

      Spitzberg, Mitchell & Hays, by: W. Christopher Barrier, for appellant.

      R. Jack Magruder III and Carolyn B. Armbrust, for appellees.
   David Newbern, Judge.

This case was appealed to the Arkansas Supreme Court and was assigned to the Court of Appeals pursuant to Supreme Court Rule 29(3).

Deboha II was denied a zoning variance by the Board of Adjustment. The Circuit Court affirmed the decision, and that Court’s de novo review of the matter is on appeal here. The sole issue presented is whether there was substantial evidence before the Court to support its decision. Quapaw Quarter Ass’n v. Board of Zoning Adjustment, 261 Ark. 74, 546 S.W. 2d 427 (1977); and City of Little Rock v. Kaufman, 249 Ark. 530, 460 S.W. 2d 88 (1970). We find there was.

The appellant is a partnership leasing and operating a McDonald’s restaurant at the intersection of West Markham and Jackson Streets in Little Rock. In 1976, the owners of the property and the McDonald’s Corporation, as prospective owner, obtained a variance which permitted the use of the back portion of the property as a parking lot. The back portion is bordered by “A” Street at the rear (north) and Jackson Street to the east. In its judgment granting the 1976 variance, the Court noted that McDonald’s agreed ingress and egress would be only on Markham and the operation would not appreciably increase the flow of traffic on “A” Street or Jackson Street.

The variance sought in the case before us would permit the appellant to allow egress from the parking lot onto “A” Street. To obtain a variance, the applicant must demonstrate, in the words of the applicable ordinance and the enabling statute, “undue hardship due to circumstances unique to the individual property under consideration . . .,” and the variance may be granted . . only when it is demonstrated that such action will be in keeping with the spirit and intent of the provisions of the zoning ordinance.” Ark. Stat. Ann. § 19-2829b. (Repl. 1968); and Code of Ordinances of the City of Little Rock, § 43-22(4)(1975). In support of its contention that its request met these requirements, the appellant produced evidence of traffic congestion, at the intersection in question, resulting in accidents occurring when McDonald’s customers attempted to exit on Markham. It also referred to a retaining wall and steep drop-off to the east which would preclude entry and exit on Jackson Street.

In rebuttal, the appellees produced expert testimony to the effect that release of traffic from the lot onto “A” Street would threaten the residential character of the neighborhood to the north. A resident of the neighborhood testified to the same effect. The Little Rock Director of Comprehensive Planning and the former Director both testified that the original variance had created problems for the City, and that the granting of the variance requested here would not alleviate the problems and would, instead, have a substantially adverse effect on the residential neighborhood to the north. The City’s Director of Current Planning voiced the same opinion with respect to the adverse effect on the neighborhood as did one of the residents of the neighborhood.

This testimony clearly constituted substantial evidence rebutting the appellant’s proof on the issue whether the spirit of the plan would be served by the variance. It may also have been relevant to the question whether a hardship was demonstrated, as the Arkansas Supreme Court apparently finds the question of the effect of a variance on the surrounding neighborhood to be inextricable from the question of hardship. See, e.g., City of Little Rock v. Kaufman, supra, and Zoning Flexibility: Bored of Adjustment?, 30 Ark. L. Rev. 491, 509 (1977), and cases cited there.

In view of this finding that the record contains substantial evidence supportive of the appellee’s position, we conclude the trial court was correct in affirming the Board of Adjustment decision.

Affirmed.

Judge Hays did not participate.


text:
    W. W. STURGEON v. AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, GEORGIA
    CA 79-128
    Opinion delivered October 24, 1979
    and released for publication November 16, 1979

      Schieffler & Tates, for appellant.

      David Solomon, for appellee.
   David Newbern, Judge.

This case was appealed to the Arkansas Supreme Court and assigned to the Court of Appeals pursuant to Supreme Court Rule 29(3).

We are asked to decide whether an order characterizing a complaint as one in contract and not in tort is a final order and thus whether it is appealable. The complaint was stated iii several paragraph, altrgdsig these theories i» the alternative. If we say the ©'««¡let' C uppoakble, then we are asked to decide the closely related qívwtion whether the complaint staler! a cause of action ire tort, and whether objections to in-tmugatories and requests «hr adnsíRaion healing on punitive damages should hwo Mon Portioned.

Mr. Sturgeon. tk> »ppriknt, ¡nirchasod a cancer insurance policy from the' appellee insurance oornprniy. The complaint alleges tb*» a?«ents of the (company told Mr. Sturgeon the policy wmtM ¡.ny if he were diagnosed as having cancer regardless of other benefits he might have. Mr. Stusgeon was hospiniwed with cancer of the krym*. On several occasions his íw^?hnlí«adon and treatment occurred at a Veterans’ Adminfctxntiw 1 «rtpital, The company refused to ¡say, and Mr. Sturgeon contends he fias causes of action against tine company W b».v#wh of contract and alternatively for the tort of deceit. }P\ esnsuably m 'Connection with Ms claim for punitive damage» under his tort theory, Mr. Sturgeon submitted several inteJ’S’wfv^'oií»;? and requests for admission dealing with the financEa! rendition of the company. The company objected, nod tM court held a hearing on the mattes’.

The hearing result'' oí in ,?m ordos by the court; saying Mr. Sturgeon’s complaint war *.\vi in contact and »»ot in tort. It also sustained the objects *8 to the inteirogatovks and requests for admission. Wv (add the ogv¡b¿' ekux'aeieriring the complaint as one in coni sm’ and not in tort is appealable. We do not decide whether tfw dbo-may order was appealable, but we presume that because we «lo Chid Ms. ¡Itwgecm has stated a cause of action ftwr deceit, tine part of the order denying the discovery requests will be sexeriderod upon remand.

The question of finality of ten ordos, and thus its appealabilisy, is selbhtn easy. ‘W Asbm«»s Supreme Court has been fairly consistent, at least in the; language It has used to describe an appealable ond-or. V has said, Va judgment, to be final, must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy.” McConnel & Son v. Sadle, 248 Ark. 1182, 455 S.W. 2d 880 (1970). That language is typical of the Arkansas cases, some of which are cited later in this opinion. The part of that disjunctive statement we believe to have been overlooked by the appellee is the last part. When an order, as a practical matter, concludes the rights of the parties to the subject matter in controversy, it is appealable. The order in this case clearly had the effect of dismissing the appellant’s tort claim and thus concluding his rights on that matter.

Each of the cases cited by the appellee is distinguishable. In Worth Insurance Co. v. Patching, 241 Ark. 620, 410 S.W. 2d 125 (1966), the court refused to allow a defendant to file a third party claim. That decision did not conclude any rights as between the parties to that action. In Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1968), the court had only denied a defendant’s motion to dismiss, thus leaving unresolved the issues the defendant would have had the court conclude. In Burney v. Hargaraves, Judge, 264 Ark. 680, 573 S.W. 2d 912 (1978), the court again, rather than dismissing the claim, refused to enter a default judgment, thus leaving alive issues the plaintiff would have had concluded. In McConnel & Son v. Sadle, supra, the court had decided only one issue of several necessary to determine the outcome of a workers’ compensation claim. No aspect of the claim had been dismissed.

Certainly it could be argued that in each of these cases, and indeed in any case, where something has been decided it may affect some right of a party and be final to that extent. Yet if all interlocutory decisions were appealable, litigation would be truly interminable. That is the problem the U.S. Supreme Court wrestled with in Gillespie v. U.S. Steel Corp,. 379 U.S. 148, 85 S.Ct. 308 (1964). The Supreme Court in that case recognized that there could be equally strong arguments on both sides of such cases.

We might have more difficulty with this case were it not for a remarkably similar case decided by the Arkansas Supreme Court just last year. In Findley v. Time Insurance Co., 264 Ark. 647, 573 S.W. 2d 908 (1978), an insured sued his insurer. Part of the complaint was in tort. The trial court sustained a demurrer to the tort claim, leaving the remainder of the case untried. In holding the order of dismissal of the tort claim appealable, the court simply cited Ark. Stat. Ann., § 27-2101(2) (Supp. 1977), now (Repl. 1979), which says, in part:

The Supreme Court shall have appellate jurisdiction over the Final orders, judgments and determinations of all inferior courts of the State, in the following cases and no other:
# * * i»
Second: In an order affecting a substantial right made in such action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action; and when such order grants or refuses a new trial, or when such order strikes out an answer, or any part óf an answer, or any pleading in an action.

We hold this case is at least analogous to the Findley Case and that the statute is equally controlling here. The order in the case before us was tantamount to the dismissal in Findley and to the striking out of a pleading or part of a pleading mentioned in the statute.

The appellant has stated a cause of action in tort. Unlike the plaintiff in the Findley Case who was suing his insurer for “bad faith” resulting from its failure to pay an allegedly valid claim, Mr. Sturgeon has filed a complaint which we find to contain all the elements of the cause of action for deceit, a well recognized common law tort. See, e.g., Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518 (1972), and Cockrum v. Pattillo, 246 Ark. 594, 539 S.W. 2d 632 (1969). See also, Prosser, Law of Torts, p. 685 (4th ed., 1971).

Although problems may or may not arise later in this case with respect to the need for or desirability of an election between the remedies Mr. Sturgeon has sought, we find no reason for the court to have dismissed the tort claim at this stage of the litigation.

Reversed and remanded.

      We use the term “cause of aclioo” í-uihei tbsn “claim upon which relief may be recovered” because tru case was filed Jour before July 1,1979, the effective date of tl-e Arkause . '"les of Civil t ■oee joro.


author: George Howard, Jr., Judge. M. Steele Hays, Judge,

text:
    CANAL INSURANCE COMPANY v. FIRST NATIONAL BANK OF FORT SMITH, Arkansas INTERNATIONAL HARVESTER CREDIT CORPORATION v. CANAL INSURANCE COMPANY
    CA 79-6
    596 S.W. 2d 710
    Opinion delivered September 5, 1979
    [Rehearing denied October 3, 1979.]
    [Certiorari to Supreme Court granted October 8, 1979.] [Affirmed by Supreme Court April 14, 1980.]

    and released for publication May 7, 1980

      Hardin, Jesson & Dawson, for appellant-appellee, International Harvester Credit Corporation.

      Shaw & Ledbetter, for appellee, First National Bank of Fort Smith.

      Jones, Gilbreath & Jones, for appellant-appellee, Canal Insurance Company.

        Canal Ins. Co. v. First Nat’l Bank of Ft. Smith, et al, 268 Ark. 356, 596 5.W. 2d 709.

   George Howard, Jr., Judge.

This is an appeal from a summary judgment rendered in behalf of First National Bank of Fort Smith against Canal Insurance Company for $2,-412.99; and a summary judgment in behalf of Canal Insurance Company against International Harvester Credit Corporation, under the terms of a purported “hold harmless agreement”, for $2,412.99 plus an attorney’s fee of $1,725.42. This proceeding is essentially two separate actions, but are interrelated. Consequently, the entire matter will be disposed of in this opinion.

The facts are not in dispute. However, the pertinent facts for a resolution of the issues tendered are: Canal Insurance Company, on January 24, 1974, issued an insurance policy to Jim Marler insuring a utility refrigeration trailer. On April 5, 1974, International Harvester Credit Corporation, the lienholder, was added as a loss payee by an endorsement to the policy.

Following an accident involving the trailer on August 18, 1974, Marler filed a claim with Canal for the damages sustained. On April 22, 1975, Canal issued its draft, No. 414449, for $2,412.99. The following language was printed on the face of the draft: “Upon Acceptance Pay To The Order Of Jim Marler” and “Payable Through the South Carolina National Bank, Greenville, South Carolina.” Marler deposited the draft on May 5, 1975, in a checking account of Nationwide Refrigerated Express, Inc., maintained at First National Bank of Fort Smith. First National permitted Marler to withdraw funds from the account, and moreover, the account was closed before First National received a reply to its tender of the draft to South Carolina National Bank for payment.

On May 16, 1975, the draft was presented for payment, but was not accepted because Canal had issued a stop payment order. Other reasons asserted for nonacceptance were: the draft was improperly drawn, was improperly endorsed and was in a mutilated condition.

On August 12, 1975, Canal issued a substituted draft, No. 420392, in the sum of $2,412.99, made payable to Marler and International, after Canal realized that International’s name, as loss payee, was inadvertently omitted from the first draft and, furthermore, Marler had refused to respond to Canal’s request for return of the draft for cancellation. The second draft was forwarded to First National, but the instrument was never presented for payment because International refused to endorse the substituted draft contending that it was entitled to a draft exclusively as a single interest payee. International, in the meantime, had repossessed the trailer; and the outstanding balance remaining on the trailer was $12,554.28.

On September 2, 1975, Canal issued its third draft for $2,412.99 made payable to International only after International had executed, approximately one week earlier, a “hold harmless agreement” purporting to indemnify Canal “from any further claim” and to “defend any suit or go to any trouble or expense to protect the Canal Insurance Company from any further claims under the above-referred policy.”

First National filed its lawsuit against Canal on December 30, 1975, seeking judgment for $2,412.99. Canal informed International of the action on January 15, 1976, and requested International to intercede in the lawsuit and defend Canal’s interest. International denied any obligation to respond to Canal’s request contending that the hold harmless agreement did not provide for a defense “to any action as a result of the alleged wrongfully stop-payment of a draft issued in settlement of the subject claim.”

On February 12, 1976, Canal filed its answer to First National’s complaint and a third party complaint against International for judgment of its expenses incurred in defending the action and for whatever sum of money Canal may be required to pay First National.

THE DECISION

I.

THE JUDGMENT IN FAVOR OF FIRST NATIONAL AND AGAINST CANAL INSURANCE COMPANY

Canal argues rather persistently that its initial draft, No. 414449, made payable to Jim Marler only was not a negotiable instrument inasmuch as the draft was conditional “Upon Acceptance” and “Payable Through the South Carolina National Bank, Greenville, South Carolina.” Consequently, argues Canal, Canal had no affirmative obligation under the instrument until Canal had accepted the draft and, furthermore, until acceptance, Canal had every right to stop payment on the draft. Accordingly, reasons Canal, the trial court erred in rendering a judgment against it in behalf of First National.

In support of this position, Canal cites, among other things, Ark. Stat. Ann. § 85-3-410(1) which provides essentially that “acceptance” is the drawee’s signed engagement to honor the draft as presented; and there must be some manifestation of the drawee’s acceptance on the draft.

Canal further contends that the language “Payable Through the South Carolina National Bank, Greenville, South Carolina” on the face of its initial draft simply designated South Carolina National Bank as a collecting bank without authority to pay the draft. Consequently, the bank is not a drawee and is not ordered or even permitted to pay the instrument out of any of the drawer’s funds, if any, on hand. Canal relies on Ark. Stat. Ann. § 85-3-120 to support its argument here. Ark. Stat. Ann. § 85-3-120 (Add. 1961), in material part, provides:

An instrument which states that it is ‘payable through’ a bank or the like designates that bank as a collecting bank to make presentment but does not of itself authorize the bank to pay the instrument.

While Canal’s argument is interesting and on first blush seems plausible, after close scrutiny of the circumstances existing in this case and consideration of the applicable law, we are not persuaded by Canal’s argument and it is, therefore, rejected.

In First National Bank of Huttig v. Rhode Island Insurance Company, 184 Ark. 812, 43 S.W. 2d 535 (1931), the Arkansas Supreme Court, in disposing of an identical issue under § 7896, Negotiable Instrument Act of Crawford and Moses’ Digest, made the following observation:

... A bill of exchange drawn by the maker upon himself is in legal effect a promissory note, and cannot be countermanded. Where a bill of exchange is drawn by a corporation upon itself, the instrument may be treated as an accepted bill or as a promissory note at the election of the holder.
In the present case, the instrument which is the basis of the suit was in form a bill of exchange. It was drawn by the corporation Rhode Island Insurance Company, under the signature of its president upon itself. In other words, it was a bill of exchange drawn by the corporation through its proper officer upon itself, and was not therefore subject to countermand.
It is claimed, however, that it was conditional because of the words ‘upon acceptance’ in it. . . . [TJhese words had no legal effect on the instrument. They were in the instrument where it was signed by the president of the corporation, and the very act of drawing the bill is deemed an acceptance of it, and the holder may treat it as an accepted bill of exchange or as a promissory note.

In Falk’s Food Basket v. Selected Risks Insurance Company, 214 Pa. Super. 522, 257 A. 2d 359 (1969), the Superior Court of Pennsylvania, in dealing with an identical issue under the Uniform Commercial Code, made the following statement:

‘Upon Acceptance’ does not destroy the negotiability of this instrument because it is only a restatement of an ‘implied or constructive condition’ of any draft or check, which must be accepted to charge the drawee. ‘A promise or order otherwise unconditional is not made conditional by the fact that the instrument (a) is subject to implied or constructive conditions; . . . However, the Code provides, ‘A draft drawn on the drawer is effective as a note. Where a draft is drawn by one person on himself or itself, which has the effect of a promissory note or an accepted bill of exchange, it is considered to be accepted by the very act of issuing it and presentment and acceptance are not necessary to make the draft a liability of the drawer to the payee or holder. . . . The use of ‘Upon Acceptance’ on this note is superfluous for this additional reason.
Since ‘Upon Acceptance’ and ‘Payable Through’ do not destroy this instrument’s negotiability and there is no other allegation in the record that the appellee had any other notice of a defense against the instrument, appellee is a holder in due course.

In Bailey v. Palster, 468 S. W. 2d 105 (Tex. 1971), the Court held that where an insurance company settled a claim and issued a draft upon itself, in its capacity as drawer, use of the words “upon acceptance” in the draft did not give the drawer the right to stop payment.

In General Motors Acceptance Corp. v. General Accident Fire & Life Assurance Corp., 67 N.Y. Supreme Court A.D. 2d 316 (1979), in reviewing the legal effect of a draft providing “payable through the First Pennsylvania Bank” stated, among other things:

Because this draft was drawn by defendant on itself, payable through the First Pennsylvania Bank, defendant contends that the situation is the same as though it were only the drawee of the draft, and it is not liable thereon because it did not accept it . . . but, instead, stopped payment on the draft; . . .
. . . Upon issuance of the draft the drawer engages that upon its dishonor and appropriate notice and protest, he will pay it, unless he notes thereon that it is drawn without recourse . . . The draft in this case was not drawn without recourse and, since there was no drawee (other than defendant itself) who accepted responsibility for it, defendant remains liable thereon
. . . After defendant stopped payment on the draft it remained liable on it to plaintiff as a holder in due course . . .

See Also: 11 Am. Jur. 2d, Section 23, page 52, Bills and Notes; 10 C.J.S., Section 171, page 646, Bills and Notes, where it is provided that where in a bill the drawer and drawee are the same person, the holder may treat the instrument, at his option, either as a bill of exchange or a promissory note; and, accordingly, an acceptance is not necessary on the part of the drawer-drawee.

We conclude that Canal remained liable on its initial draft made payable to Jim Marler only although a stop payment order was issued. As maker and drawee of the instrument, Canal could not countermand the draft. Moreover, where, as here, a bill of exchange is drawn by the maker upon itself, the mere execution of the bill is deemed an acceptance of it and the holder has an option to treat the draft as an accepted bill or as a promissory note.

It is plain that Canal’s draft contained all the elements of negotiability and was not drawn without recourse. The record is deficient of any proof that First National had notice of any defense against the instrument. First National was, indeed, a holder in due course. Accordingly, the judgment of the trial court in behalf of First National is affirmed.

H.

THE JUDGMENT IN FAVOR OF CANAL AND AGAINST INTERNATIONAL

It is undisputed that International, by an endorsement to the policy issued by Canal, became a loss payee under the policy on April 5, 1974, approximately four months prior to an accident on August 18, 1974, resulting in the loss sustained by the insured. However, on April 22, 1975, Canal, without the knowledge of International, delivered to Jim Marler only, its draft to cover the loss. Moreover, it is plain that International did not receive knowledge of Canal’s initial draft to Marler until September 2, 1975, approximately one week after International had executed the hold harmless agreement prepared by Canal.

International argues, on the one hand, that the language contained in the hold harmless agreement means that Canal was to be indemnified or held harmless “from any further claim” relating to any affirmative action on the policy itself and does not require International to respond to an action based on negligence or negotiable instrument errors.

It is clear that after Canal issued its initial draft to Jim Marler only, Canal sought to correct the error by requesting Marler to return the draft for cancellation, and finally, Canal stopped payment on the instrument. Canal issued its second draft made payable to Marler and International on August 12, 1975, and when International refused to endorse it, Canal issued its third draft to International only.

Canal, on the other hand, argues that its third draft to International only was delivered in reliance on the hold harmless agreement and “¿Mi /or” the hold harmless agreement, the draft to Inernational would not have been issued.

We are persuaded that the hold harmless agreement did not contemplate the action instituted by First National against Canal which is predicated upon the nonpayment of the initial draft as a consequence of the issuance of a stop payment order by Canal. It must be remembered that Canal’s dealings with First National were prior to the execution of the hold harmless agreement and it is apparent that the hold harmless agreement is prospective in scope and purpose. First National had no claim under the policy, and First National is not even mentioned in the hold harmless agreement or the policy. The hold harmless agreement provides explicitly that International is to hold Canal harmless and provide for a defense to “any further claims under the above referred policy.”

Accordingly, we reverse the trial court and the action i dismissed with cost assessed against Canal.

Hays and Newbern, JJ., dissent.

M. Steele Hays, Judge,

dissenting. I respectfully dissent to the decision of the majority on both counts. I would reverse as to First National Bank and affirm in part as to the judgment in behalf of Canal against International.

I believe that the majority is overlooking a long-standing and recognized practice, particularly with the insurance industry, of issuing drafts bearing the words “upon acceptance” and “payable through” a specific bank and that such instruments are not treated as negotiable until actually accepted by the issuer. The reasons for this treatment of such drafts are practical to the problems of covering drafts in settlement of claims being issued at many separate branches across the country and providing efficiently, at the paying end, the necessary funds to cover the drafts being processed. I believe the Uniform Commercial Code framers recognized the custom and made allowance for it by the language of and comment to § 85-3-120.

The record is silent, but I suspect this matter is before us only because appellee inadvertently treated the draft deposited by Marler as a cash item and immediately credited the account, rather than treating it conditionally. Its normal practice, I believe, would be to forward the draft for collection before crediting the account.

The effect of the majority opinion is to invalidate a practice I consider to be widespread and of near universal acceptance, with nothing to replace it — all for no good reason. I recognize that there are decisions from other jurisdictions, which the majority cites, that reach a different conclusion; however, the opinions of Pennsylvania and New York are not binding upon us and, in this instance, are not even persuasive, where they contain nothing to commend them except that they exist. Nor am I willing to impose what I hold to be an extreme alteration of a custom and practice of commerce on the strength of an arcane decision handed down half a century ago, more than forty years before the adoption of the Uniform Commercial Code and decades before it was even conceived of. I refer to the case of First National Bank of Huttig v. Rhode Island Insurance Company, 184 Ark. 812, decided in 1931.

As I interpret the majority opinion, the determining fact- or is that where the drawer and drawee are the same person (as in the case before us) the words “upon acceptance” have no meaning and the issuer of such a draft is immediately liable upon the instrument to a holder in due course. Yet the opinion cites dicta from decisions, including an early decision of this state, which permit the same result by using different words, i.e., “without recourse.” Thus a drawer and drawee can be identical and accomplish the same result if different words are used. I believe that in practice the words “upon acceptance” have been treated as having the same effect. If this is so, why insist on substituting two words more to our own liking, when those involved in this area of commercial dealing have come to recognize two different words as achieving the same result, and the practice is not objectionable under the U.C.C.?

As to the agreement to hold harmless, I believe that both Canal and International Harvester had full awareness of the circumstances when the agreement was demanded by Canal as . a condition to immediate payment to International Harvester as a single payee. It was to protect itself from precisely the eventuality with which it was later confronted that Canal insisted on the agreement and International Harvester simply bought the risk, foregoing its option to file suit. The rule that ambiguous language in an agreement is to be construed most favorably to the party who did not draft the agreement is not intended to apply to the situation presented in the case before us.

I am authorized to state that Judge Newbern joins in this dissent.

      This appeal was originally lodged in the Arkansas Supreme Court, but was transferred to this Court under Rule 29(3) of the Rules of the Arkansas Supreme Court.

      Marler was a stockholder as well as an officer of Nationwide Refrigerated Express, Inc.

      Canal has stated in its brief that it had not been able to locate any Arkansas case law on the point. We have found an Arkansas case, discussed hereinafter, that seems relevant to the issue before us.

        See: Ark. Stat. Ann. § 85-3-104(1) (Add. 1961).

        See: Ark. Stat. Ann. § 85-3-118(a) (Add. 1961).

        See: Ark. Stat. Ann. § 85-3-302(l)(c) (Add. 1961)

        See: Ark. Stat. Ann. § 85-3-413(2) (Add. 1961). See: Spencer v. Halpern, 63 Ark. 108, 37 S.W. 712, where the Arkansas Supreme Court recognized at an early date that one desiring to escape liability on a bill may do so by inserting the words “without recourse.”

      A contract must be strictly construed against the party preparing it. Foster v. Universal C.I.T. Corp., 231 Ark. 230, 330 S.W. 288 (1959). Where one of two innocent persons must suffer, the one who puts it in power of a third person to perpetuate the act causing the loss should suffer the loss. Arkansas Power & Light Co. v. Bauer-Pogue & Co., Inc., 194 Ark. 1002, 110 S.W. 2d 529; Commercial Credit Company v. Hardin, 175 Ark. 811, 300 S.W. 434.


author: PER CURIAM

text:
    Anita ROSS v. Charles L. DANIELS, Director of Labor and CORRELL, INC.
    CA 79-22
    _S.W. 2d
    September 19, 1979
    Released for publication October 10, 1979
   PER CURIAM

It is undisputed that appellant was injured in the scope of her employment on May 13, 1978; that she received temporary total disability benefits to March 9,1979, aggregating a total sum of $3,428.57, for a period of forty-two (42) weeks and six days; that her physician found that she was able to return to light-duty work on March 9, 1979, but such work should not involve lifting, bending, twisting and stretching back muscles and that claimant sustained permanent partial disability of 10 per cent for which she was to receive forty-three (43) and 6/7ths weeks of benefits, commencing March 9, 1979, and aggregating a total sum of S3,600.00.

Appellant be rehired because cian. that she could not of the restrictions imposed by her physi-

On March 12, 1979, claimant made application for unemployment benefits stating that she was seeking fuli-time employment, but could only perform light-duty work.

The local agency determined that claimant had voluntarily left her ¡así employment for reasons due to illness after making reasonable efforts to preserve her job rights and, accordingly, ruled that she was eligible to receive unemployment benefits.

The appellee appesiled the determination of the local agency stating, as a basis of his appeal:

This will acknowledge receipt of your Notice of Decision on a contested claim involving the above captioned individual
As your records should show, Mrs. Ross has been drawing payments from our workmen’s compensation insurance for an accident sustained here at the plant. I am enclosing a copy of a letter written to Mrs. Ross under the date of March 14, 1979 which indicates that she has been drawing and will continue to draw workmen’s compensation benefits. I was unaware that a person can draw unemployment insurance as well as workmen’s compensation at one and the same time. If I am wrong in my assumption, we would of course have no basis for an appeal. If, howei’er, we are right we would appeal the decision for her qualification for unemployment insurance.

The Appeals Referee on May 11, 1979, affirmed the determination of the local agency allowing claimant to receive benefits under Section 5(a) of the Arkansas Employment Security Law on the premise that she voluntarily left her last employment for reasons of illness after reasonable efforts to preserve her job rights, but held that claimant is “currently not fully able and available for work, or doing those things a reasonably prudent individual would do to secure work, within the meaning of Section 4(c) of the Law. She would be ineligible for benefits beginning April 29, 1979, up to and including the date of the hearing, May 2, 1979.”

On May 21, 1979, the Board of Review affirmed the decision of the Appeal Tribunal.

We are to decide whether the holding of the Appeal Tribunal, which was adopted by the Board of Review, denying unemployment benefits to claimant on the premise that claimant is not fully able and available for work, nor is she doing those things a reasonably prudent individual would do to secure work within the meaning of Section 4(c) of the Employment Security Law, is supported by substantial evidence.

Although claimant reported to work after being released by her physician, she was advised by her employer that there was nothing available because of the restrictive conditions imposed by her doctor.

Claimant admitted that she did not seek employment at Whirlpool or any other factory because her doctor had “ruled out” factory work; but she did affirmatively seek light work at Bruce’s Market in Branch and the retail stores in Paris. Claimant also visited the vocational school at Ozark in order to enroll in a rehabilitative program. Moreover, a conference was scheduled with a Mr. Kempt at the vocational school the date of claimant’s hearing before the Appeal Referee.

After carefully reviewing the record, we are not persuaded that the Board of Review’s holding that claimant is not fully able and available for work or doing those things a reasonably prudent individual is expected to do in seeking work is supported by substantial evidence. Therefore, we reverse the Board of Review on this holding, but affirm the finding that appellant is eligible to receive benefits under Section 5(a) of the Arkansas Employment Security Law.

We are persuaded that where, as here, an unemployed person, partially disabled by an industrial injury, and her physician has released her for light-duty work, may still be able to compete in the labor market and may qualify for unemployment benefits as one available for work, although she may be receiving, under the Workers’ Compensation Law, partial permanent disability benefits as distinguished from temporary total disability benefits during the period of recuperation. See: Edwards v. Metro Title Co., 133 So. 2d 411 (Fla. 1961); Utica Mutual Insurance Company, et al v. Pioda, 90 Ga. App. 593, 83 S.E.2d 627 (1954).

We find no prohibition against the receipt by a worker of unemployment compensation while receiving workers’ compensation benefits under the factual situation presented.

Affirmed in part and reversed in part.

      It is interesting to note that the workers’ compensation act relative to temporary partial disability, Ark. Stat. Ann. §81-1313(b) and (h) provides:
      (b) In case of temporary partial disability resulting in the decrease of the injured employee’s average weekly wage, there shall be paid to the employee sixty-six and two thirds per cent (66 2/3%) of the difference between the employee’s average weekly wage prior to the accident and his wage earning capacity after the injury.
      (h) If any injured employee refuses employment suitable to his capacity offered to or procured for him, he shall not be entitled to any compensation during the continuance of such refusal, unless in the opinion of the Commission, such refusal is justifiable.
      It seems plain that although an individual may be receiving workers’ compensation, it is desirable that he seek employment within his capabilities. A fortiori an employee who is unable to find work within his capabilities should not be disentitled to receive unemployment benefits on the theory that he is not fully able and available for work.