author: Frank Holt, Justice.

text:
    Ellsworth Brothers Truck Lines, Inc., et al v. Mildred Canady, et al
    5-4767
    437 S.W. 2d 243
    Opinion Delivered January 27, 1969
    [Rehearing denied March 10, 1969.]

      Gordon, Gordon & Eddy and Rose, Meeh, House, Barron, Nash & Williamson for appellants.

      Felver A. Rowell Jr. for appellees.
   Frank Holt, Justice.

Appellees brought suit for the recovery of damages alleged to have been sustained when a tractor-trailer, owned by appellant Ellsworth Brothers Truck Lines, Inc. and driven by an employee, struck the rear of the automobile in which appellees were riding as passengers. Appellees’ separate complaints were consolidated for trial. The jury returned a verdict in favor of appellees and this appeal comes from a judgment on that verdict.

Appellants assert several grounds for reversal, one being there was no substantial evidence that any negligence on the part of appellant driver proximately caused the injuries alleged by the appellees. Since we agree with appellants on this point, it is unnecessary to discuss the others.

The accident occurred in the early hours of the morning. It was dark and raining. Appellant’s employee was driving a tractor-trailer and following appellees, who were passengers in an automobile driven by Willie Jean Heaggan. After entering a curve, the Heaggan automobile, going 45 or 50 miles per hour, began to slide, went off the highway into a ditch on the righthand side of the road, and came to a complete stop about 5 feet off of the paved portion of the highway up against a ditch embankment. Appellant’s driver was traveling 40 to 45 miles per hour some 200 or 300 feet behind the Heaggan car, saw it go out of control, touched his brakes and shifted down to 9th gear. While his attention was centered on the car in which appellees were riding, an oncoming car struck the left rear tandem wheels of the trailer. The impact severed the air line, causing the brakes on appellant’s truck to lock. The right wheels of the trailer went off the pavement, leaving 83 feet of skid marks. Appellant’s vehicle came to rest with the right rear tractor tire against the left corner of the rear bumper of the Heaggan vehicle. Of the three taillights on the left rear side of the car, only the one on the outside was broken; the left rear door would not open; the right side was up against the embankment; the vehicle was stuck in the ditch and it was necessary to use a wrecker to remove it.

The rule is well settled that the plaintiff has the burden of proving by a preponderance of the evidence, not only negligence on the part of defendant, but also that such negligence was a proximate cause of the injuries complained of. Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S.W. 2d 290; Kapp v. Sullivan Chev. Co., 234 Ark. 395, 353 S.W. 2d 5.

Appellees testified that they were thrown forward when appellant’s vehicle hit the rear of the car in which they were riding. Appellee Mildred Canady, who was sitting in the back seat, testified that she was thrown forward and hit her head against the “cross piece” that divides the two doors. Appellee Edith Clemons, sitting in the front seat, said she was thrown forward and under the dashboard. Mrs. Heaggan, the driver, testified that the impact threw her forward against the steering wheel. It is undisputed that the Heaggan car had come to a complete stop in the ditch before being struck from the rear, a “few seconds” later, by appellant’s vehicle. Appellees ’ version of their injuries is so contrary to established physical laws that no probative value can be attributed to it. It is well known, even among laymen, that when a parked automobile is hit from the rear, the passengers are thrown backward and not forward.

Of course, a reviewing court should not disregard testimony simply because it seems improbable, yet, we have said that where sworn testimony is unquestionably contrary to the laws of nature and science, we will declare as a matter of law that the testimony is insufficient to support a verdict. Payne v. Cotner, 148 Ark. 401, 230 S.W. 275, Magnolia Petroleum Co. v. Saunders, 193 Ark. 1080, 104 S.W. 2d 1062. In St. Louis Southwestern Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S.W. 768, the court succinctly stated the rule of law applicable in the case at bar:

“Appellate courts take notice of the unquestioned laws of nature, of mathematics, of mechanics and of physics. So where there are undisputed facts shown in the evidence, and by applying to them the well known laws of nature, of mathematics and the like, it is demonstrated beyond controversy that the verdict is based upon what is untrue and what cannot be true, this court will declare as a matter of law that the testimony is not legally sufficient to warrant the verdict.”

In the instant case, accepted laws of physics, as applied to the undisputed facts, irrefutably disprove appellees’ testimony and demonstrate beyond a doubt that the verdict was erroneous. We cannot treat as substantial that which has no substance.

Furthermore, appellees’ proof presents the inference that they were injured when the car in which they were passengers, traveling 45 to 50 miles per hour, went out of control, left the highway and ran into a ditch from which it had to be pulled out by a wrecker. The doctor who treated appellees testified that being thrown forward could account for the injuries he diagnosed; that when a car slides and goes off the road at the speed and in the manner in which the Heaggan vehicle went out of control, then the passengers could be thrown forward and receive the same injuries that he found the appellees to have; and that an occupant of a car is thrown backward when the vehicle is struck from the rear. It was only by conjecture and speculation that a jury could have determined that appellant’s negligence, if any, was the proximate cause of appellees’ injuries.

It is not sufficient to show that the injuries suffered might have been caused when appellant’s vehicle hit the rear of the Heaggan automobile. This causal connection between a plaintiff’s damages and the defendant’s negligence must be established by direct or circumstantial evidence, and it cannot be proved by conjecture or speculation. Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S.W. 2d 290; Kapp v. Sullivan Chev. Co., 234 Ark. 395, 353 S.W. 2d 5; Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W. 2d 4.

In Henry H. Cross Co. v. Simmons, 96 F. 2d 482 (8th Cir. 1938), a decision under Arkansas law, the court said:

‘ ‘ To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other.”
Appellees’ evidence as to the cause of their injuries was opposed to accepted laws of physics, and further, appellees’ proof failed to take the case out of the realm of conjecture. In view of this, we hold that there was no substantial evidence of proximate causation to make a question for the jury.

Reversed and dismissed.

Jones, J., dissents.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Jim Allen, et al v. The Tri-County Watershed Improvement District
    5-4731
    435 S.W. 2d 796
    Supplemental Opinion on Rehearing Delivered January 27, 1967

      Charles P. Cole and Fred Livingston for appellants.

      Ponder & Lingo for appellee.
   Conley Byrd, Justice.

Appellants on rehearing argue that it is error to accept the assessment records as evidence of the ownership by the landowners within the district.

The record, as abstracted, shows that evidence was taken for four days to determine the number of landowners within the district. The evidence on this issue was closed on August 31, 1967. The court determined the number of valid signatures and the total number of landowners on October 6, 1967. The only abstracted objection touching upon the use of the assessment records arose at the final hearing held on December 14, 1967 and is as follows:

mr. cole:
Your Honor, I understood that subsequent to the filing of the second petition (Tr. 95-103) we would be given time to present evidence as to the ownership of the lands involved. (Tr. 898).
the court:
That opportunity was given in those 4 days. mr. cole:
I understood that possibly the Court would be willing to give us additional time.
THE COURT:
No, that was taken up pretty thoroughly.
mr. cole;
It is my understanding that the Court has accepted a tabulation that was prepared setting out the names of the assessed owners. I think it has been referred to, and should be made a part of the record.
I am raising this point as I feel that a wife is as much an owner of the lands as the husband in a conveyance to husband and wife. The testimony we have heard today makes it clear that in many such instances, the wife has not been included. The ownership has been taken from the assessment records which generally shows the husband’s name— it is no evidence whatever of the ownership of the wife where it is owned by them as tenants by the entirety. I feel that in order for the Court to pass on whether there is a majority of ownership, we should be permitted to present that.
the court;
There was ample opportunity; the gate is closed. That is the ruling of the Court.
mr. cole;
So then we are denied the right to bring in instances of where a husband and wife ...
the court;
That is right; proof has been taken on that score.
mr. cole;
I don’t want to be in the position of arguing with the Court, but as I understand, the only proof which has been taken is protesting the formation of the district; not the question of ownership involved.
the court;
Ample opportunity was had to bring that out; it will not be gone into from here on.
mr. cole;
Please note our objections to the ruling of the Court on the question of bringing in the ownership of the wife in estates by entirety.

In their petition for rehearing, appellants refer to a motion that raised the issue of the probative value of the assessment records for purposes of determining ownership. The only abstracted motion that we find is as follows:

RESPONSE AND MOTION
The opponents, appellants here, filed a Response and Motion, (Tr. 106-107), contending that the proponents had failed to make a prima facie showing that the petition had been signed by the majority in number of the landowners within the proposed district; that they had failed to obtain the valid signatures of a majority of the landowners, nor a majority of the lands involved.
That the petition contained names of persons who did not in fact own lands in the proposed district.
That the petition did not in fact contain the signatures of 243 persons owning lands in the affected area.
That there were duplications in some of the signatures and these were counted twice.
That the petition filed contained a large area of land which was not included in the area sought to be incorporated in the proposed district, nor were these excluded lands contained in the Notices published.
This petition then suggested the appointment of a Master in Chancery to make a detailed study of the matter, and to make a report of its findings to the Court.

As we read the abstracted record, the issue here argued with reference to the acceptance of assessment records as proof of ownership was never raised in the trial court. We consistently hold that we will not reach an issue raised for the first time on appeal. For this reason, the petition for rehearing is denied.

While we must recognize from common experience that the ownership of lands shown by the assessment records is certainly not conclusive as to the persons who own the lands, yet we are not in a position to say that the assessments records are no evidence of ownership, especially when the proof with respect thereto is brought into the record without objection.

Petition for rehearing denied.

Holt, J., not participating.


author: Cart.eton Harris, Chief Justice.

text:
    Frank Rogers, et al v. C. R. Mason, et al
    5-4811
    436 S.W. 2d 827
    Opinion Delivered February 3, 1969
    [Rehearing denied March 3, 1969.]

      Bill J. Davis and Brown, Compton, Prewitt & Dickens for appellants.

      Spencer & Spencer for appellees.
   Cart.eton Harris, Chief Justice.

On February 17, 1968, an election was held in Calion, a second class city located in Union County, on a proposal to annex some 1500 acres to the city. One hundred and sixteen votes were cast for the proposal, and 107 votes were cast against it. Only one polling’ place was provided for the election, and the polls were closed at 6:30 P.M., one hour before the time provided by statute. The record reflects that there were 303 qualified to vote in the election, and 78 of these did not vote. The election result was announced about 7:00 P.M. Appellants filed an election contest within the proper time, but, on hearing, the complaint was dismissed by the trial court. From the judgment so entered, appellants bring this appeal. For reversal, it is asserted that Ark. Stat. Ann. § 3-908 (Supp. 1967) is mandatory; that Ark. Stat. Ann. 19-1101.3 (Repl. 1968) (which requires a polling place for each ward in a city of the second class), is also mandatory, and finally it is contended that the failure of election officials to follow the directions of a mandatory statute, results in placing the burden of proof in an election contest on the contestees, instead of the contestants.

We find no merit in any of the points raised by appellants. It is argued by appellants that the failure to strictly comply with the aforementioned statutes had the effect of invalidating the election. It might first be said that such a provision is not included in the statutes under discussion, and the contention is absolutely contrary to several of our cases.

As to closing the polls one hour early, this court held such a contention to be without merit as long ago as 1880. In Holland, as Collector, v. Davies, 36 Ark. 446, the polls at a district school election were closed two and one-half hours early; the validity of the election was challenged on several grounds, including this particular averment, but this court held to the contrary, stating:

“The provision of the statute fixing the time of closing the polls of an election is directory and not mandatory. Manifestly an election should not be set aside and the object for which it was held defeated, though the law has not been strictly complied with, where no obstruction or impediment to a fair expression of the will of the electors is Shown” .

Here, only three witnesses testified. The County Clerk testified as to the number of persons voting, the number of qualified electors not voting, the result of the election, and the fact that only one polling place was provided. It was stipulated that the polls were closed at 6:30 P.M. Robert D. Walker testified that he was present at the polling place from 6:30 P.M. until 7:00 P.M., and no one came to vote during that period. He said that his wife announced the result of the election at approximately 7:00 P.M. Otis Williams testified (hat lie was also present at the polling place in Calion, and that no one came there between 7:00 and 8:00 P.M.

It will be noted that not a single individual testified that he went to the polling place to vote, and found the polls closed, or that he did not go to vote because he had already learned that the polls had closed. In other words, there is no evidence that anyone who desired to vote was deprived of that right. Though appellants, in answering interrogatories (unverified and not introduced), listed 88 persons (10 more than the record reflects were eligible) as having been denied the right to vote, no such testimony was offered. Surely, if the early closing resulted in denying the privilege of the vote to numerous people, some would have come forward to so testify.

likewise, the contention that the election was invalid because there was only one polling place open is without merit. The same general rule covers this situation. In Orr v. Carpenter, 222 Ark. 716, 262 S.W. 2d 280, this court, quoting an earlier case, said:

“To hold that all prescribed duties of election officers are mandatory, in the sense that their nonperformance shall vitiate the election, is to ingraft upon the law the very powers for mischief it was intended to prevent. If the mistake or inadvertence of the officer shall be fatal to the election, then his intentional wrong may so impress the ballot as to accomplish the defeat of a particular candidate or the' disfranchisement of a party. And it is no answer to say that the offending officer may be punished by the criminal laws, for this punishment will not repair the injury done to those affected by his acts. It is the duty of the courts to uphold the law by sustaining elections thereunder that have resulted in full and fair expression of the public will, and, from the current of authority, the following may be stated as the approved rule: All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to affect an obstruction of the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provision affects an essential element of the election or unless it is expressly declared by the statute that the particular act is essential to the validity of the election, or that its omission shall render it void.’!

As to proof, the discussion under Point 1 also applies here, i.e., not a single person testified that he or she was deprived of voting because only one polling place was provided.

While we do not condone irregularities, it is, we think, quite evident that no voter was deprived of the constitutional right to express himself in this election. We recognize, as mentioned by appellant, that it would have been well nigh impossible for a court order to have been obtained at 6:30 P.M., requiring that the polling place remain open until 7:30 P.M. However, the italicized language in both Holland, as Collector v. Davies, supra, and Orr v. Carpenter, supra, makes clear that where the failure to observe the statute affects an essential element of the election or prevents a fair expression of the will of the electors, the rule is different.

Appellants are in error in stating that the burden of proof should have been placed upon the contestees, ri Ilier than the contestants. In Pogue v. Grubbs, 230 Ark. 805, 327 S.W. 2d 4, we pointed out that, in an election contest, the official returns are prima facie correct, and the burden is on the contestant to show to the contrary by affirmative proof.

Affirmed.

      Ark. Stat. Ann. § 3-908 (Supp. 1967): “The polls shall be opened at eight (8) o’clock a.m., and shall remain open continuously until seven-thirty (7:30) o’clock, p.m.” This provision, changing tile closing time from 6:30 P.M. to 7:30 P.M., was enacted by the General Assembly in 1967.

      It is evident that one of the figures appearing in the record is incorrect, for the total of the votes for, votes against, and persons not voting, actually totals 301.

      Emphasis supplied.

      There was no allegation of how these people would have voted, i.e., whether they favored the proposal or were against it.

      Emphasis supplied.

      In Bingamin v. City of Eureka Springs, 241 Ark. 477, 408 S.W. 2d 607, the statute relative to the manner of applying for and voting an absentee ballot, was violated. Though the suit was not filed until after the election, we invalidated the votes of six persons, finding, in effect, that the violations were such as to obstruct the free and intelligent casting of the vote, and that the challenged ballots affected the result; in other words, the violations concerned an essential element of the election. The invalidation of the six ballots changed the election result.


author: George Rose Smith, Justice.

text:
    Lin Manufacturing Company of Arkansas, Inc., et al v. Harry Courson
    5-4765
    436 S.W. 2d 472
    Opinion Delivered February 3, 1969

      Arnold, Hamilton & Streetman for appellants.

      Switzer & Griffin for appellee.
   George Rose Smith, Justice.

The plaintiff-appellee, Harrs'- Courson, -was injured when a truck owned by Lin Manufacturing Company and being driven by its employee ran a stop sign and struck Courson’s car. In appealing from a verdict and judgment for $55,000 Lin and its truekdriver question four rulings by the trial court and challenge the size of the verdict.

I. It is argued that the defendants were prejudiced by Courson’s unnecessary references to the matter of liability insurance. On cross-examination counsel questioned Courson at some length about earlier incidents of injury and hospitalization. Courson was asked: “How many doctors have you consulted in the last few years concerning your various ailments?” In reply, Courson named eight doctors, including Hr. Reed.

Dr. Reed was not actually one of Courson’s own doctors, having examined him at the defendants ’ request in connection with the lawsuit. On redirect examination Courson’s attorney sought to make that fact clear. The following excerpt from the record shows what happened :

Q. Now you mentioned being examined by Dr. Reed.
A. Yes.
Q. At whose instance — why did you go see Dr. Reed?
A. Well, because the insurance company or someone—
MR. STREETMAN:
We object to that and we ask the Court to declare a mistrial. There is no insurance company here as a defendant, and we ask the Court for a mistrial.
the court;
Overruled.

We perceive no reversible error. Plaintiff’s counsel had a valid reason for wanting the jury to know that Dr. Reed was not Courson’s own physician, for otherwise the jurors might have drawn an adverse inference from the plaintiff’s failure to call Dr. Reed as a witness. Thus the question was put with apparent sincerity. When, as here, the reference to insurance occurs in good faith rather than in a deliberate attempt to prejudice the jury, an admonition by the court is ordinarilv sufficient to correct the error. Ragon v. Day, 228 Irk. 215, 306 S.W. 2d 687 (1957); Adams v. Summers, 222 Ark. 924, 263 S.W. 2d 711 (1954); Beatty v. Pilcher, 218 Ark. 152, 235 S.W. 2d 40 (1950). No doubt the court would have admonished the jury in this instance, but the defendants did not request that corrective measure. Instead, they asked only for a mistrial, to which they were not entitled.

II. Counsel for the plaintiff, in developing the proof of damages, called witnesses to show that two large companies in the vicinity had a policy against employing anyone with a history of back trouble (with which Courson was afflicted as a result of the collision). When it was brought out that the first company’s policy was a written policy, defense counsel objected to the witness ’ testimony on the ground that the writing, which the witness did not have with him, would be the best evidence. It is now insisted that the objection should have been sustained.

The court was right. The best evidence rule comes into play when the contents of a writing or its exact wording is an issue in the case. When, as in the case at bar, the existence of the writing is merely a collateral matter, the rule does not apply. St. Louis & S.F. R.R. v. Kilpatrick, 67 Ark. 47, 54 S.W. 971 (1899). Moreover, as McKelvey points out: “There is a distinction between proving a fact which has been put in writing and proving the writing itself. Because a fact has been described in writing does not exclude other proof of the fact.” McKelvey, Evidence, § 345 (1944). Here the company’s policy, which might have been an oral directive, was the fact to be proved. That the policy had been reduced to writing certainly did not exclude other proof of the basic fact.

III. Near the beginning of his closing argument Courson’s attorney said to the jury: “I think I would like to caution you and possibly use at this time — one of the purposes of a jury — the golden rule of do unto others as you would have them do unto you.” Defense counsel at once objected and asked for a mistrial. The court refused to declare a mistrial but did instruct the jury to disregard the statement of counsel. (We do not agree with the appellants’ insistence that the record shows that the “golden rule” argument was renewed even after the courts ruling.)

We find no error. It is true, as pointed out in Russell v. Chicago, R.I. & P. R.R., 249 Iowa 664, 86 N.W. 2d 843 (1957), and in the annotation to that case in 70 A.L.R. 2d 927, that it is improper for a plaintiff’s attorney to urge the jury to apply the golden rule by putting itself in the plaintiff’s position and awarding whatever amount the jurors would like to receive themselves for a similar injury. Here, however, counsel never reached the point of actual prejudice, because his argument was interrupted at the first reference to the golden rule, without its implications having been developed in an improper way. In the circumstances the court’s prompt admonition to the jury was sufficient, the error not being so serious as to call for a mistrial.

IY. After the verdict was received, the defendants ’ lawyer went into the jury room and found a piece of paper on which 12 numbers totaling $649,400 had been added up and divided by 12, giving a quotient of $54,-110. It is now insisted that the verdict for $55,000 was demonstrably a quotient verdict that should be set aside under our ruling in Williams v. State, 66 Ark. 264, 50 S.W. 517 (1899). Counsel concede, however, that our more recent cases, such as Arkansas State Highway Commn. v. Vandiver, 240 Ark. 26, 397 S.W. 2d 802 (1966), uphold quotient verdicts as being distinguishable from verdicts obtained by lot. We are urged to overrule the Vandiver case and its predecessors to the same effect, but we decline to do so. In our judgment they correctly state the law.

Y. We cannot say that the verdict is so excessive as to indicate passion or prejudice or to shock the conscience of this court. Courson suffered a severe back injury. He was in traction in hospitals for 18 or 19 days and later was in a hospital for another three days while undergoing a painful myelogram. Iiis past and future medical bills, ulus the damage to his car, exceed $3,000.

The pain resulting from the injury has been extensive and severe and will continue to be so in the future. During more than nine months between the accident and the tidal Courson was almost constantly in pain. He was unable to sleep for more than three hours at a time, often being compelled to get up and walk around the house or lie down in front of the fireplace with his back to the heat. He must wear a back brace that adds materially to his discomfort. The pain will continue in the future with little likelihood that it can be relieved by surgery, which Courson is unwilling to submit to.

Courson was 44 at the time of his injury, with an expectancy of 28 years. He was employed by the Game and Fish Commission as a game warden, in an outdoor job involving much driving, hiking, and other strenuous activity. He had not served long enough to have accumulated retirement benefits.

Courson’s injury resulted in a disability of 20% to his body as a whole. Although he was still employed at the time of the trial, he was not able to perform all his duties and will be in constant jeopardy of losing his job. He is not trained for anything except outdoor work involving strenuous exertion. Should he lose his present position there is much doubt about his ability to find other comparable employment. We have already mentioned the policy that some employers are shown to have against the employment of persons with a history of back injuries.

We think, without detailing all the facts in the record that bear upon the amount of the verdict, that we may conclude the discussion by observing that we are unanimous in the belief that the award is not demonstrably excessive.

Affirmed.

Harris, C.J., and Byrd, J., dissent as to Point I.


author: Lyle Brown, Justice.

text:
    Walter Lee Cook, employee v. J. Turner Brown, et al
    5-4788
    436 S.W. 2d 482
    Opinion Delivered February 3, 1969

      H. Clay Robinson for appellant.

      Shaw, Jones & Shaw for appellees.
   Lyle Brown, Justice.

This is an appeal from an affirmance by the circuit court of a Workmens Compensation Commission order. The commission refused to set aside its award made to appellant, Walter Lee Cook, on the basis of a joint petition filed by Cook and Ms employer, J. Turner Brown, and Truck Insurance Exchange. The latter two parties are the appellees. In denying Cook’s application for voidance of the award, the commission held it was without jurisdiction to set aside the order of award or to reopen the case. The correctness of that holding is the single issue on appeal.

Cook was injured on August 20, 1965, while employed by Brown. On September 9, 1966, the employer, employee, and insurance carrier submitted a joint petition to the commission. A lump sum settlement was proposed, based on fifteen per cent permanent partial disability. A hearing was conducted, at which claimant testified, and an order was entered granting the petition. In conformity with that order, Truck Insurance Exchange paid over the awarded amount, being $2,329.25.

In August 1967, slightly less than one year after the award, Cook filed a petition with the commission to set aside the joint petition award. He stated that he “was incapable of understanding the legal ramifications” relevant to the joint petition and thought his claim would remain open. Finally he asserted that his disability had subsequently increased to thirty per cent. From an examination of the petition itself, the commission held it was without jurisdiction to set aside the joint petition award. That conclusion was based on Ark. Stat. Ann. § 81-1319 (1) (Repl. 1960):

(1) Joint Petition. Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties, the Commission shall hear the petition and take such testimony and make such investigations as ma}^ be necessary to determine whether a final settlement should be had. If the Commission decides it is for the best interests of the claimant that a final award be made, it may order such an award tliat shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall deny the petition, such denial shall be without prejudice to either party. No appeal shall lie from an order or award allowing or denying a joint petition.

We view § 81-1319 (1) as the statutory method for effecting a compromise settlement. It of course anticipates negotiations between the parties prior to the filing of the petition. When they agree upon a figure of settlement they must come before the commission for approval. In the interest of the claimant the statute requires a hearing; testimony is taken and any necessary investigation by the commission is authorized; then it must be determined that the proposed settlement is in the best interest of the injured worker. If the commission approves the proposed settlement it then enters an order of award. That award “shall be final as to the rights of all parties to said petition, and thereafter the commission shall not have jurisdiction over any claim for the same injury or any results arising from same.” Because of the finality of the procedure, wre perceive (as is evident in the record here) that the commission is careful to follow its duties under the statute, which are designed to protect the worker.

In upholding the commission’s position that it had no jurisdiction of claimant’s petition to set aside the award, we look to the allegations of that petition. It should be first pointed out that there is no allegation of fraud or insanity. With commendable candor, the petition states that “through no fault of anyone” claimant was incapable of understanding the legal ramifications of the petition; that because of that impediment he thought he was being paid for injuries to date; and that the claim would remain open to take care of any increase in disability subsequent to the settlement. Those assertions are contrary to the express language of the joint petition, and, we might add, in direct conflict with the record made at the hearing at which claimant testified.

No statute similar to § 81-1319 (1) from any jurisdiction has been called to our attention. We do find an Illinois statute which is comparable. Smith-Hurd Ann. St. Ch. 47-48 § 156, par. (h), precludes review by the commission of any lump sum award or settlement contract approved by it. That statute has been held to estop review by the commission of such a settlement even for alleged fraud. Michelson v. Industrial Commission, 31 N.E. 2d 940 (1941). A somewhat similar statute in Oklahoma has been likewise interpreted. Gibbins v. Indian Electric Cooperative, 219 P. 2d 634 (1950); Indian Territory Illuminating Oil Co. v. Ray, 5 P. 2d 383 (1931). In both jurisdictions the claimants were referred to the courts for relief. We cite those cases only to show that other jurisdictions are extremely cautious about giving to their commissions the power to review their own joint and final awards. Their reasoning is to the effect that the statutes are so clear that to hold otherwise would be to legislate by judicial pronouncement.

Our statute is unambiguous. It is fortified by the wording of Ark. Stat. Ann. § 81-1326 (Eepl. 1960). That section provides for the modification of awards generally; however, it specifically excepts from its provisions those awards made under § 81-1319 (1).

We hold that neither the statute nor any inherent powers of the commission, considering the state of claimant’s pleadings, would justify its reopening of the joint settlement,-

Affirmed.


author: John A. Fogleman, Justice.

text:
    Russell Lee, et al v. Ernest Watkins, et al
    5-4779
    436 S.W. 2d 479
    Opinion Delivered February 3, 1969
    W. R. Hastings, Jr. for appellants.

      Chapman & Wiley for appellees.
   John A. Fogleman, Justice.

This case requires that we determine whether the evidence was sufficient to support a finding of liability for wilful and wanton negligence under the guest statute. It arose out of an automobile collision which occurred on November 19, 1966, at the intersection of United States Highways 67 and 67C near Judsonia. Ernest Watkins brought this action individually and as father and next friend of Eva Watkins. He charged Richard Lee, the driver of a vehicle in which his daughter was a passenger with wilful and wanton negligence and alleged that the conduct of Richard Lee was imputed to his father Russell Lee. He also charged James Edward Roberts, allegedly the driver of the other vehicle involved in the collision, with ordinary negligence. 'The evidence, as set out in the abstracts and briefs of the parties, shows:

Eva Watkins was the guest of Richard Lee in an automobile owned by Russell Lee. Both of them were under the age of 18 j^ears. During the evening they had driven around in the vicinity of the intersection and had picked up another couple with whom they attended a movie in Searcy. They had traveled through the intersection at which the collision occurred at least three times that night, approaching it from different directions on different occasions. On one of these occasions they had made the approach from the same direction as that from which the Lee automobile was proceeding at the time of the collision. United States Highway 67 is the preferred highway. There are stop signs facing traffic approaching the intersection from Highway 67C on each side of Highway 67. Richard had stopped at each of these signs at least once during the evening. Immediately before the collision Richard and Eva had stopped at the home of Gary Landis, which is about 500 feet east of the intersection, to take the other couple to the automobile they had left there. Richard and Eva proceeded immediately toward the intersection talking in general about things. Eva remembers that Richard did not slow down at the intersection and remembers looking back and thinking that if a car she saw was far enough away it would not hit them. As they started to turn slie opened her mouth to scream and then ‘ ‘ everything happened.” Richard had moved to the community about a year before the accident, but there is no evidence as to how long he had lived in White County. The conclusion from the evidence that Richard proceeded into the intersection without stopping is inescapable. When he did so he collided with the Roberts vehicle. Roberts was killed and Eva seriously injured.

The case was tried without a jury. The circuit judge entered a judgment against the Lees in favor of Ernest and Eva Watkins, having found as a fact that Roberts was guilty of no negligence and that Richard Lee was wilfully and wantonly negligent in that he ran a stop sign at an intersection he knew to be dangerous and drove onto a highway which he knew to be extraordinarily heavily traveled without slowing down or exercising any caution whatsoever. We conclude that the judgment must be reversed for want of substantial evidence to support the court’s finding as to Richard Lee.

Our statutes prohibit recovery by a person transported as a guest in an automobile from the owner or operator unless the vehicle is wilfully and wantonly operated in disregard of the rights of others. Ark. Stat. Ann. § 75-913 et. seq. (Repl. 1957). The terms of the statutes have been held to require wilful and wanton negligence or wilful and wanton misconduct. Cooper v. Calico, 214 Ark. 853, 218 S.W. 2d 723; Froman v. J. R. Kelley Stave & Heading Co., 196 Ark. 808, 120 S.W. 2d 164; Spence v. Vaught, 236 Ark. 509, 367 S.W. 2d 238.

Even when we consider the testimony in the light most favorable to appellees, it is insufficient. The applicable test was set out in Carden v. Evans, 243 Ark. 233, 419 S.W. 2d 295, where we said, “In order to constitute the wilful misconduct required, there must be a conscious failure to perform a manifest duty in reckless disregard of natural or probable consequences to the life or property of another, as distinguished from gross negligence which does not involve such reckless disregard of consequences. Splawn v. Wright, [198 Ark, 197, 128 S.W. 2d 248]. There must be a wilfulness, a wantonuess and indifferent abandonment in respect of consequences, applicable alike lo self and guest. Cooper v. Calico, 214 Ark. 853, 218 S.W. 2d 723.” The burden of proving wilful and wanton misconduct was upon the guest, appellee herein. Poole v. James, 231 Ark. 810, 332 S.W. 2d 833; Carden v. Evans, supra.

The only evidence from which any inferences as to the conduct of young Lee could have been drawn was the testimony of Eva Watkins concerning the running of the stop sign. This occurred at about 11:30 p.m. The testimony indicates that Richard Lee did not slow down as he approached the intersection, but he had started the automobile at the Landis residence only 500 feet away. There is nothing to indicate the speed at which he was driving when he approached or entered the intersection. The question to be determined, then, is whether a finding of wilful and wanton misconduct may be predicated upon the fact that "the host driver ran a stop sign.

We have never dealt with the exact question. In Bridges v. Stephens, 238 Ark. 801, 384 S.W. 2d 490, we held that a jury question as to wilful and wanton misconduct was presented when there was evidence that the host driver was intoxicated at the time of a collision resulting from his running a stop sign.

A review of authorities from other jurisdictions having a guest statute requiring wilful and wanton negligence or misconduct indicates that there must be some ('violence other than the simple running of a stop sign to constitute the required reckless disregard of the probable consequences. It has been held that an admission by a driver that he had seen the stop sign together with a testimony that he ran the stop sign was sufficient to make a question of fact for the jury. This holding was based in part upon a conflict in the evidence as to whether the driver first stopped and then started up or simply ran into the intersection without stopping. Bench v. Bevard, 29 Ill. App. 2d 174, 173 N.E. 2d 1 (1961). In Richier v. Haller, 124 Ind. App. 369, 116 N.E. 2d 525 (1954), it was shown that the driver saw the stop sign, knew it was there, and knew that he was violating the law when he did not stop before proceeding into the intersection at a time of day when he knew the highway was heavily traveled. There was testimony that the driver of the other car involved in the collision sounded his horn three times, even though the host driver, driving with his window down, denied hearing any liorn.

In Tuttle v. Reid, Ind. App., 198 N.E. 2d 610 (1964), a jury question was found in conflicting evidence as to whether the host driver had previous warning of the stop sign or of the approach of the other vehicle involved. The court said that the evidence was weak. Our cases require strong and convincing evidence. See Carden v. Evans, 243 Ark. 233, 419 S.W. 2d 295. There was also evidence in the Tuttle case indicating that the host driver accelerated his speed after being warned of the danger. In Jenkins v. Sharp, 140 Ohio St. 80, 23 Ohio Op. 295, 42 N.E. 2d 755 (1942), the court held that there was a jury question where the motorist’s view to his right as he approached the main thoroughfare was obstructed by a dwelling house and hedge, and there was evidence that the host driver saw the stop sign but proceeded through it at a speed of from 35 to 50 m.p.h. In Goncalves v. Los Banos Mining Co. 58 Cal. 2d 916, 26 Cal. Rptr. 769, 376 P. 2d 833 (1962), there was evidence that the stop sign was plainly visible and even though the guest passenger gave warning of it 200 feet away, the driver proceeded at 60 m.p.h. without looking either to his right or to his left or applying his brakes. In McCarty v. O. H. Yates & Co., 294 Ill. App. 474, 14 N.E. 2d 354 (1938), the driver turned east on the wrong side of the highway and veered over the entire surface of the pavement after running the stop sign. The language of the court in Murphy v. King, 284 Ill. App. 74, 1 N.E. 2d 268 (1936) where the driver ran a stop sign and narrowly missed another vehicle only one block from the collision intersection at 30 to 40 m.p.h., and was warned by the guest of the stop sign as she approached the collision intersection is significant. The court said: “It may well be that the segregated single act of passing a street light, exceeding speed, the unobservanee of a through street, taken by themselves would not show wilfulness or wantonness, but taken in the light of the situation under which the act was performed, together with the result flowing therefrom, shows such a conscious indifference as to consequences as to render defendant’s act wilful and wanton.”

No useful purpose would be served by reviewing other authorities in which it was held that a jury question was, or was not, presented, as the cases above reviewed seem to be typical. For cases holding that a jury question was not presented see 3 A.L.R. 3d 430.

We determine that it is the decided weight of authority that the mere showing that a host driver failed to stop at a stop sign unaccompanied by any other evidence justifying an inference that the driver acted with a conscious indifference to the consequences to himself or his guest is insufficient to support a finding of wilful and wanton misconduct. We adopt that view.

It is urged that young Lee’s acquaintance with the intersection and knowledge that the superior highway was heavily traveled constitute the required additional evidence. Although we might agree if this incident had occurred at an hour of the day when traffic was known to be heavy, there is nothing to indicate the volume of traffic at 11:30 p.m. Neither is there anything to show that Richard Lee would not have been justified in thinking that the traffic would be very light at this time of the night. We are not required, in this case, to decide whether it must be shown that a host driver was actually conscious of impending danger. Unlike many of the cited cases, there is nothing to show that ihe host driver in this case either was, or should have been, conscious of the presence and approach of the Roberts vehicle and proceeded into the intersection in spite of this knowledge.

The judgment is reversed and the cause dismissed.


author: J. Fred Jones, Justice. John A. Fogleman, Justice.

text:
    L. R. Hudgins and Gene Hudgins, d/b/a L. R. Hudgins and Sons v. Lonnie Maze
    5-4768
    437 S.W. 2d 467
    Opinion Delivered February 3, 1969
    [Rehearing denied March 10, 1969.]

      Pearson & Pearson for appellants.

      Lewis E. Epley, Jr. for appellee.
   J. Fred Jones, Justice.

Lonnie Maze filed a damage suit in the Madison County Circuit Court against L. R. and Gene Hudgins, d/b/a L. R. Hudgins and Sons, for personal injuries sustained by Maze when his hand was injured between a Y belt and pulley on an electric motor while he was ¡employed by Hudgins. A jury trial resulted in a judgment for Maze in the amount of $5,-000 and Hudgins has appealed.

Appellants are engaged in the egg producing business and operate several large laying houses. In three of the houses electric motors are used to operate fans, egg belts, feed conveyors and scrapers which are used to remove litter from the floors. All electric motors used in the laying houses are equipped with guards over the belts and pulleys except those motors which run the fans and the ones which operate the scrapers. Appellee Maze worked in one of these houses and as a part of his duties he cleaned litter from the laying house floor by use of electrically operated scrapers.

Each electric motor operates two scrapers attached to a single cable. The cable is wound into five grooves on the surface of two adjacent and horizontal steel drums or cylinders, referred to as a “winch.” The winch is turned either direction by a reversible ¡electric motor with a two-way or reversible switch located three or four feet, above the winch and motor. The power from the electric motor is transmitted to the winch through a Y belt and pulleys attached to the motor and to the gears on the winch. As one scraper is being loaded the other one returns empty and the process is reversed by reversing the motor and the direction the cable travels around the winch.

Ln the usual operation a loaded scraper would occasionally hang on something or stick to the floor, and when it would break loose in the course of operation, the sudden excess slack in the cable would cause the cable to jump out of its groove on the winch drum and it would become necessary to stop the motor, pry the cable to the cylindrical surface of the winch drum and wind the cable back into its groove on the drum by manually pulling the V belt between the motor and winch, thus turning the pulleys as -well as the motor and winch. The appellee was engaged in this operation when he was injured.

On the day of the injury Clarence Harshfield was working in the laying house with the appellee. Harsh-field was first employed by appellants to gather up eggs in baskets, but lie had b.een assigned to cleaning the laying house on the day appellee was injured. In operating the scraper equipment, Harshfield caused a cable to come off the winch and he sought appellee’s assistance in replacing the cable. The appellee pried the cable partially back onto the winch with a screwdriver and directed Harshfield to hold the screwdriver under the (-able while appellee turned the pulleys and belt. Appellee told Harshfield not to touch the switch to the motor, but while, the appellee was in the process of turning the belt and pulleys, Harshfield turned the switch and started the motor. Appellee’s right hand was caught between the belt and a pulley, thereby amputating a part of one finger and severely injuring another.

In Ms complaint the appellee alleged unsafe working conditions consisting of unguarded belts and pulleys on electric motors and also the hiring and retention of an incompetent fellow-servant, or co-employee, in the person of Harslifield, as proximate causes of appellee’s injury. The appellants answered by general denial and they affirmatively pleaded contributory negligence and assumption of risk. The appellants have designated the following points upon which they rely for reversal:

“The trial court erred in refusing to instruct the jury to return a verdict for defendants on the issue of lack of proper guards on the machine and on the issue of plaintiff’s assumption of risk of dangers because of the lack of guards.
The trial court erred in refusing to instruct the jury to return a verdict for defendants on the issue of the incompetency of Clarence Harslifield and on the issue that defendants did not know that Harsh-field was an incompetent employee, if, in fact incompetent.
The trial court erred in refusing to instruct the jury to return a verdict for the defendants on the issue that plaintiff assumed the risks arising from the incompetence of Harslifield.
The trial court erred in refusing to instruct the jury to return a verdict for the defendants, on all the issues, and to return a verdict for defendants for reason that negligence of Harslifield, as a fellow-servant, was sole cause of injury and for which negligence defendants are not liable.”

It is thus seen that on all four of its designated points, the appellants allege error in the trial court’s refusal to instruct the jury to return a verdict for the appellant. We conclude that there was sufficient evidence to go to the jury on all four points.

In Hawkins v. Missouri Pacific Railroad Company, Thompson, Trustee, 217 Ark. 42, 228 S.W. 2d 642, we said:

“A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.”

As to assumption of risk, Prosser, Law of Torts, 3rd ed., § 67, p. 453-54, says:

“. .. [A] ssumption of risk is a jury question in all but the clearest cases. Citing, Pona v. Boulevard Arena, 1955, 35 N.J. Super. 148, 113 A. 2d 529.”
Prom the Pona, case, supra:
“It is well settled that a dismissal by the court on the ground of assumption of risk... may only be entered in the clearest case where a contrary hypothesis is not fairly admissible. * * * The elements ‘must be of such a prominent and decisive character as to leave no room for a difference of opinion thereof by reasonable minds.’ * * * The facts must appear clearly and convincingly, or as the necessary and exclusive inferences to be drawn by all reasonable men in the exercise of a fair and impartial judgment; otherwise the question is for the jury.”

Spradlin v. Klump, 244 Ark. 841, 427 S.W. 2d 542, relied on by the appellants is distinguished on the facts from the case at bar. In that case Spradlin stuck his hand into the moving parts of a mechanical hay baler operated by a power take off from a farm tractor. He was manager of the whole operation and knew more about a hay baler than his employer did. Spradlin simply stuck his hand into the machinery while it was running rather than walk to the tractor and disengage the gears or turn the switch off and stop the machinery. In that ease we affirmed the trial court who directed a verdict for the defendants in the first place, and in doing so, we said:

“...[T]he danger presented by the moving-rollers was completely open and obvious. Spradlin readily admitted on cross examination that he fully appreciated the peril involved in letting his hand get too close to the moving parts of the baler. ’ ’

In Cockerham v. Barnes, 230 Ark. 197, 321 S.W. 2d 385, the appellant employer directed the appellee and a fellow-employee to make some repairs on an irrigation pipe. The plan, as outlined by appellant, contemplated that the fellow-employee would close the shut-off valve through which the water passed from the main line to the lateral, while appellee went across the field to remove the plug from the end of the lateral. Prearranged signals between the employees apparently were not understood, and when the appellee removed the plug from the eud of the lateral, he was severely injured due to the unexpected water pressure.

On appeal from a judgment for personal injuries, the appellant insisted that appellee’s injury was due solely to the negligence of a fellow-servant for which the employer was not liable at common law, and that appellant was entitled to a directed verdict. In affirming the judgment, this court said:

“It is settled, however, that the fellow servant rule does not relieve the master from liability if his own negligence is a contributing cause of the injury. Shearman & Redfield on Negligence (Rev. Ed.), § 196.
... Even though Barnes had helped to install this system the jury was not compelled to conclude that he should have realized that to stand in front of the plugged lateral was somewhat like standing-before a loaded cannon. * * * It was for the jury to say whether the defendant was guilty of negligence that was a proximate cause of the injury.”

In E. L. Bruce Company v. Leake, 176 Ark. 705, 3 S.W. 2d 988, the appellee, a brakeman, was injured when the train car upon which he was standing, his feet in the stirrup, moved against a stump which he alleged had been negligently left standing close to the track. The appellant contended that the appellee had assumed the risk, but in affirming a judgment for the appellee, this court said:

” ‘When a servant enters into the employment of any one, he assumes the ordinary risks and hazards which are incident to the service and this includes all those defects and dangers which are obvious and patent. He assumes all the risks which he knows to exist and all those which are open and obvious.’
The above is a correct statement of the law, but it will be observed that it refers to the ordinary risks and hazards incident to the service. And it is true that he assumes the obvious risks, but, because an obstruction is near the track and the object itself or obstruction is obvious, does not necessarily mean that the risk or hazard is obvious. The servant does not assume any risk or hazard caused by the negligence of the master, unless he knows that the risk or hazard exists.
# # #
This court has many times held that, while an employee assumes all the risks and hazards usually incident to the employment he undertakes, he does not assume the risk of the negligence of the company for whom he was working, or any of its servants. He has a right to assume, not only that the master will perform its duty, but he has a right to assume that each of the other servants will perform their duty, and if, while in the exercise of ordinary care, he is injured either by the negligence of the master for whom he works or by the negligence of any other servant of the master, he has a right to recover. ’ ’

There is no question that appellants knew, or by the exercise of reasonable care should have known, that the scrapers sometime hung causing the cable to jump off the winch in this case. The appellants knew, or should have known, that when this happened the appellee, or whoever replaced the cable, did so by prying it up with a screwdriver, or other instruments, and then slowly turning the cable back onto the winch by manually turning the winch through pulling on the V belt between the two pulleys by hand. As a matter of fact, appellant Hudgins testified that it would not be practical to place a guard over the belt as the guard would have to be removed in order to get to the belt. We are of the opinion that the jury could have reasonably concluded from the evidence in this ease, that the belt and pulleys were purposely left unguarded for the very purpose of permitting employees to conveniently reach the belt for the purpose of manually turning the winch in reinstalling the cable when misplaced.

We are of the opinion that the jury could have reasonably found that this operation was comparatively safe when carefully done while the motor was not running, but be that as it may, it was a question for the jury as to whether appellants could have, and whether the appellants should have, placed guards over the pulleys to protect a workman whose known duty it was to replace the cable by pulling on the belt between the two pulleys.

We cannot say that there was no evidence from which the jury could have found that the fellow-employee Ilarshfield was incompetent and that the appellants knew’, or should have known, of his incompetency.

At the time of appellee’s injury, Harshfield’s full-time job was to clean out the chicken houses and spread the litter from a truck onto the land. Harshfield’s competency or incompetency in gathering eggs in baskets or driving a truck and spreading chicken house litter on the land is not in question here. The incompetency complained of in this case is in connection with the operation of the scrapers in general, and putting the cable back on the winch in particular, by pulling the V belt on the motor by hand as was required.

Harshfield was operating the scraper, he failed to loosen the scraper with a 2x4 appellee kept handy for that purpose. He caused the cable to get off the winch and he was required to put it back on if he could. He called appellee to assist him in putting the cable back onto the winch. The appellee proceeded as he had previously done when he, himself, was operating the scraper. He placed a screwdriver under the cable and told Harsh-field to hold it while he, appellee, turned the belt. He told Harshfield to keep away from the switch and while appellee was pulling on the belt, Harshfield engaged the switch and started the motor.

The appellee testified that Harshfield was careless and reckless. Their supervisor, Mr. Franks, testified that Harshfield was not a good man to have working around machinery; that he didn’t understand machinery very well. Juanita Evans, another fellow-employee, testified that Harshfield would “just be talking to me and just kind of absent mindedly turn off the switch that was running my belt, and sometimes I would have to tell him to turn it back on and sometimes he would flip it up and then back on.” She saj^s that she reported this to supervisor Pranks. Appellant Hudgins testified as to Harshfield’s competency in operating the scrapers by pointing out that all he had to do was throw the two-way switch. It was not Harshfield’s competency in throwing switches that was complained of in this case, it was his incompetency in throwing switches at the wrong time.

It is not for us to determine whether Harshfield was or was not a competent employee. The question before us is whether the trial court erred in refusing to withdraw that question from consideration by the jury by directing a verdict for the appellants. We are of the opinion that the trial court did not err on this point and we conclude that the jury could have reasonably found that the proximate cause of appellee’s injury was the unguarded belt pulleys coupled with Harshfield’s incompetency in throwing electric switches at the wrong time.

In Prosser, Law of Torts, 3rd ed. § 67, p. 453, in discussing assumption of risk and contributory negligence is found the following:

“Where they have been distinguished, the traditional basis has been that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of conduct of the reasonable man, however unaware, unwilling, or even protesting the plaintiff may be.”

Contributory negligence is measured by the actions of any reasonably prudent person under same or similar circumstances, and assumption of risk is measured by the acts of the particular individual in the light of his own knowledge of the risk involved. So, from all the evidence in this case, we are unable to say that reasonable minds could not differ as to the fact issues raised by the pleadings and proof, and we conclude that the judgment of the trial court should be affirmed.

Affirmed.

Brown, Fogleman and Byrd, JJ., dissent.

John A. Fogleman, Justice.

I would reverse the judgment of the trial court and dismiss the complaint.

I cannot imagine a clearer case of assumption of risk by an employee, even when the evidence is given its strongest probative force in his favor and all possible inferences are drawn in his favor.

Appellee had considerable experience working around machinery. He knew that the motors, pulleys and belts in question did not have guards on them. He knew of the tendency of the scraper to hang. He well knew that the cable had a tendency to jump off the winch when the scraper was not properly broken loose. He undertook, on this occasion as he had done before, to replace the cable on the winch by prying it upward with a screwdriver and running it on with his hand while the motor was not running. He was aware of the danger inherent in attempting this operation while the motor was running and warned his fellow servant not to close the switch that would activate the motor. He continued to work around the equipment and undertook to remedy the situation which arose on the day of his injury in spite of his awareness of all the dangers involved. He admitted testifying in a discovery deposition that he knew that the machine was not safe because of lack of safety devices and guards but that he did not report this fact to anyone. He also admitted having said that he knew the situation was dangerous when he undertook the work he was doing when injured and that he might hurt his hand. He also stated on the discovery deposition that he continued to work on this machine without objection on his part and without being led to believe that it was safe. He stated that he was willing to continue his work realizing the hazards.

I think that it is equally clear that Maze assumed the risk arising’ from the incompetence of his fellow servant Harshfield. He undertook to replace the cable on the winch in response to Harshfield’s request for help. Appellee admitted knowing that Harshfield was a reckless and careless employee through personal knowledge and observation while working with him before the injury. He admitted that he knew he could not depend on Harshfield and had to watch him and that it was dangerous not to watch him.

It has long been settled in this state that when it appears to be clear that the servant has knowledge of and appreciates the danger incident to his work, or that the danger is so obvious or apparent that knowledge and appreciation thereof should be imputed to him, then the court should declare as a matter of law that the servant is not entitled to recover. Brackett v. Queen, 162 Ark. 525, 258 S.W. 635; Gaster v. Hicks, 181 Ark. 299, 25 S.W. 2d 760.

The same rule applies even though the danger arises from the negligence of the master. Western Coal & Mining Co. v. Corkille, 96 Ark. 387, 131 S.W. 963. If the servant continues to work after he discovers the defective conditions, he assumes the risks of his continued service. Greenville Stone & Gravel Co. v. Chaney, 129 Ark. 95, 195 S.W. 13.

If a servant voluntarily works with an appliance known to him to be defective, realizing its dangerous condition, he assumes the risk thereof and cannot recover from the master for the resulting injury. Helena Hardwood Lumber Co. v. Maynard, 99 Ark. 377, 138 S.W. 469. If the dangerous condition Avas apparent to appellee and lie proceeded to use the machinery without complaint, he assumed the risk of injury incident to its use. Hall v. Patterson, 205 Ark. 10, 166 S.W. 2d 667.

The employment and retention by a master of a servant who is incompetent because of his habits, or for any other reason, with actual or constructive knowledge of the servant’s unfitness is equivalent, for the purpose of determining the master’s liability, to furnishing a defective appliance. Arlington Hotel Co. v. Tanner, 111 Ark. 337, 164 S.W. 286. The same rules governing the fixing of liability, including those applying to assumption of the risk by a fellow employee are applicable. See St. Louis, I.M. & S. Ry. Co. v. Hawkins, 88 Ark. 548, 115 S.W. 175; 35 Am. Jur. 774, Master & Servant § 347. Reason and logic support this analogy.

There are several cases decided by this court which are strikingly similar to this one. In Fullerton v. Henry Wraps Co., 105 Ark. 434, 151 S.W. 1005, it was held that an experienced operator of a circular saw in a lumber mill assumed the risk of fatal injury by a piece of lumber being thrown back by the saw, due to want of a guard and to the fact that a device designed to prevent “pinching” of pieces being sawed was insufficient, especially where he was shown to have realized the danger through having made complaint about the defective condition before the accident occurred. In Pekin Stave Co. v. Ramey, 108 Ark. 483, 158 S.W. 156, this court said:

“* * * The testimony shows conclusively that he knew the manner of operation of the cut off saw which “was open and obvious; that he was a grown man of reasonable intelligence, and made no complaint about the operation of it without a shield or hood, and, if the stave company was negligent in so operating it, he assumed the risk incident to its operation, and could not hold the master liable for injuries received by him on account of its being operated without a hood. * * *”

In Ward Furniture Manufacturing Co. v. Weigand, 173 Ark. 762, 293 S.W. 1002, this court reversed a judgment for error of the trial court in not directing a verdict for the employer. The reversal was based upon the uncontradicted evidence of the employee, which, this court said showed that he was not entitled to recover by reason of assumption of the risk. The employee’s testimony was outlined as follows:

“* * * rpjle substance of the proof is that appellee had been working for the appellant continuously from the 28th day of December, 1921, until the date of his injury, which was on October 22, 1925; that he was injured on one of the older dovetail machines, which he had operated at intervals from the time he began working for appellant to the date of his injury. When he first began working on this machine, it was located on the floor of the factory above, but, for approximately two years before the date of the injury, it had been located on the ground floor of the factory, and had a different instrumentality for switching the belt to the idle-pulley, but he had operated this machine on the lower floor at intervals as much as three or four hours at a time. He knew the machine did not have a guard on it to protect his hand from getting into the cog-wheels, and he knew that it never had had such a guard; he knew the location of the shifting lever relative to the cogs, that is, how close the end of the shifting lever came to the cogs; he knew that, if he got his fingers into the cogs, he would be injured, and says that, when he attempted to shift the belt at the time of his injury, he saw the shifting lever. He had never registered any complaint to appellant or to anjr of its officers or agents about the absence of a guard or that the machine was dangerous to operate in its then condition. He admitted that he was an experienced employee, thirty-five years of age, and represented himself to be an experienced machine man when he applied for employment with, appellant, and had been engaged in operating this and other machines for appellant for the past four years. There was a big electric light right over the machine, only a short distance above it, and was burning at the time appellee was hurt.”

In Standard Oil Co. v. Gray, 175 Ark. 702, 300 S.W. 405, it was held that the trial court erred in not directing a verdict for the master. There an oil field roustabout, working on his own initiative in starting a gasoline engine, who was familiar with the method of starting the engine and necessarily knew and appreciated the danger incident thereto, was held to have assumed the risk of injury in removing a cap from the air miser on the engine. If, in fact, Maze had complained of the lack of guards, or of Harshfield’s recklessness and carelessness, he would not have been relieved from the operation of the doctrine of assumption of the risk unless he continued in his employment upon the master’s promise to remedy the condition.

In view of our previous holdings, I do not see how we can say that there was any jury question in this case.

I am authorized to state that Mr. Justice Brown and Mr. Justice Byrd join in this dissent.


author: J. Fred Jones, Justice.

text:
    Southern Farm Bureau Casualty Insurance Company v. Francis Noggle, et al
    5-4769
    437 S.W. 2d 215
    Opinion Delivered February 3, 1969
    [Rehearing denied March 10, 1969.]

      Cockrill, Laser, McGehee, Sharp & Boswell for appellant.

      Lloyd Henry for appellee.
   J. Fred Jones, Justice.

This appeal is from a judgment of the White County Circuit Court awarding medical benefits and denying death benefits under a liability insurance policy issued by the appellant, Southern Farm Bureau Casualty Insurance Company, to Rosebud School District No. 35. The case was submitted to the trial court upon stipulation of facts, and was tried before the judge sitting as a jury. Southern Farm has appealed from that portion of the judgment awarding medical benefits, and the claimant for death benefits has cross-appealed from that portion of the judgment denying her claim.

The appellant has designated one point it relies on for reversal, as follows:

“An automobile used in lieu of an insured vehicle at a time when an insured vehicle is available for use is not a substitute automobile.”

The cross-appellant has designated one point, as follows:

“The trial court erred in holding the policy did not cover the owner and driver of the substituted automobile, Forrest F. Noggle, as an insured.”

The entire case concerns the interpretation of the coverage provisions of an insurance contract and the facts are not in dispute.

On July 1, 1984, Southern Farm issued its standard form automobile liability insurance policy to Rosebud School District No. 35, Rosebud, Arkansas, covering ten separately designated school busses belonging to the district. The contract was evidenced by printed form together with an additional endorsement or rider. The printed form portion of the contract was designed for individually owned vehicles with limited family, guest and authorized user coverage. The policy was made applicable to the school district by an attached ‘ ‘ School Bus Endorsement,” and the difficulty arises in the printed form provisions of the policy rather than the endorsement. The contract provided for the payment of limited medical and death benefits under certain conditions, the pertinent provisions of the policy being as follows:

“MEDICAL PAYMENTS — COVERAGE C
To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical and dental services, including prosethetic devices, and necessary ambulance, hospital, professional nursing and funeral services to or for:
DIVISION 1
(a) the named insured and, while residents of the same household, his spouse, and any relative of either, who sustains bodily injury, caused by accident, while in or upon, entering or alighting from, or through being struck by any automobile.
(b) in the event of death of the first individual named as insured by automobile accident, directly and independently of any other cause, while in or upon, entering or alighting from, or through being struck by any automobile, the sum of $5,000 less any payments otherwise made hereunder on account of injury.
DIVISION 2
(a) any other person who sustains bodily injury, caused by accident while in or upon, entering or alighting from the automobile while being used by or with the permission of the named insured or spouse.
VIII. TEMPORARY USE OF SUBSTITUTED AUTOMOBILES
While the described automobile is withdrawn from use, such insurance as is afforded by this policy applies to another automobile not owned by the named insured or spouse while temporarily used as the substitute for such automobile. This insuring agreement does not cover as an insured the owner of the substitute automobile or any employee of such owner.”

The School Bus Endorsement provides, inter alia, as follows: .

“1. PURPOSES OF USE ARE:
(1) Transportation for school children, students (except adult students), teachers, school officials, board members, nurses, and doctors to and from school, games and outings in connection with school activities.
(2) Occasional use for transporting special groups, such as 4-H Club, Future Farmers, Scouts, and Farm Bureau groups, parents or guardians of school children, or organized groups, except when used as a public or livery conveyance.
(3) Family, personal, business and pleasure use.”

The declarations attached to the policy with the School Bus Endorsement provide:

“C. MEDICAL PAYMENTS
1. a $2,000 each person
1. b $5,000
2. $2,000 each person.”

On February 27, 1965, while the policy was in force, Forrest Noggle, a teacher, coach and employee of the Rosebud School District, was using his personally owned automobile for transporting Rosebud School basketball players to and from a basketball tournament which was an officially approved athletic event of the insured. Any one of the school buses designated in the insurance policy was available for the trip, but with the permission of the school officials and at district expense, Mr. Noggle used and drove his own vehicle in lieu of a school bus listed under the policy endorsement. Lanny Noggle and Darlene Noggle were both students of the Rosebud School and were participants in the basketball tournament. They were passengers in the Noggle automobile and were returning from the tournament when the Noggle vehicle was involved in a collision which injured Lanny and Darlene Noggle and took the life of Forrest Noggle.

The original suit forming the basis for this appeal, was brought against the appellant by Francis Noggle, as the surviving spouse of Forrest Noggle for death benefits, and as the mother and next friend of Lanny Noggle for medical benefits. L. H. Noggle joined in the suit as father and next friend of Darlene Noggle for medical benefits. The complaint alleged that the personally owned vehicle of Forrest Noggle was a substitute automobile within the coverage of the policy of insurance issued by the appellant to the Rosebud School District and that appellees were entitled to recover under the medical pay and death benefit provisions of the policy. It is from this allegation that the difficulty arises.

The amounts sued for are within the policy limits and there seems to be no contention that if one of the insured’s school buses had been involved, instead of the privately owned automobile, there would have been no question as to coverage. The point relied upon by the appellant presents the specific question of whether the personally owned vehicle being driven by Forrest Noggle at the time of the accident, was a temporary substitute vehicle within the meaning of the insurance policy. The exact language of the policy provision, as related to this specific question, appears in paragraph VIII of the policy, restated here with emphasis for distinction, as follows:

“While the described automobile is withdrawn from u,se, such insurance as is afforded by this policy applies to another automobile not owned by the named insured or spouse while temporarily used as the substitute for such automobile. This insuring agreement does not cover as an insured the owner of the substitute automobile or any employee of such owner.”

The above provision attaches no conditions at all as to why the insured vehicle must be withdrawn from use in order for the insurance to attach to a substituted vehicle. It is also noted that while this provision makes such insurance as is afforded by the policy (which includes medical benefits) applicable to a substitute automobile, it clearly eliminates the death benefits as to the owner of the substitute automobile.

Our decision in Webb v. State Farm Mut. Ins. Co., 241 Ark. 363, 407 S.W. 2d 740, is of no assistance to the cross-appellant in the case at bar because the coverage on the substitute automobile in the Webb case applied when the described automobile was withdrawn from normal use because of specifically enrunerated reasons. That is not the situation in the case at bar. In the Webb case the policy provided:

“Temporary substitute automobile — -means an automobile . . . temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, serving, loss or destruction.” (Emphasis supplied.)

And this court in commenting on the language of the policy in the Webb case, said:

“The quoted section of the policy provides a specifically limited coverage as to a non-owned temporary substitute automobile when the automobile described in the policy is withdrawn from normal use by the insured because of its breakdown, repair, servicing, loss or destruction. This language is clear and emphatic.”

The language of the policy provision in the case at bar does not provide such a “specifically limited coverage,” which is so “clear and emphatic.” The language of the policy provision in the case before us simply provides that such substitution may be effective “while the described automobile is withdrawn from use.” If the appellant insurance company had intended to limit the conditions under which the insured vehicles were to be withdrawn from use before the insurance coverage would attach to substituted vehicles, it would have been a simple matter to have included such limitations in the contract it prepared.

The substitution of the automobile for a bus in this case could well have been prompted by the fact that the small number of passengers attending the basketball tournament could be transported more economically in the automobile than in a school bus. But for whatever reason the substitution may have been made, the provision providing for the withdrawal and substitution is unlimited by purpose otherwise defined.

In Washington Fire & Marine Ins. Co. v. Ryburn, 228 Ark. 930, 311 S.W. 2d 302, this court said:

"It is a settled rule in this state (and appears to be the general rule elsewhere) that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer, who wrote the insurance contract, and any doubt as to the meaning of language us.ed, should be resolved in favor of the insured.”

See also Webb v. State Farm Mut. Ins. Co., supra.

As to the point designated on the cross-appeal, we are of the opinion that the clear language of the policy provision, as emphasized supra, so clearly eliminates the owner of the substitute automobile as an assured under the contract, we would accomplish nothing in the way of additional clarity by adding more words to this opinion.

We conclude that the trial court was correct in the interpretation placed on the provisions of the insurance contract and that the judgment should be affirmed botl on appeal and cross-appeal.

Affirmed.

Fogleman, J., disqualified and not participating.


text:
    Lloyd E. McFall v. United States Tobacco Co., et al
    5-4783
    436 S.W. 2d 838
    Opinion Delivered February 3, 1969

      Daily & Woods for appellant.

      Warner, Warner, Ragon & Smith for appellees.
   J. Fred Jones, Justice.

This is a workmen’s compensation case and involves the question of whether the statute of limitations had run on a claim at the time it was filed with the Commission. A referee and the Commission held that it had. The matter is before us on appeal by the claimant from a judgment of the Sebastian County Circuit Court affirming the order of the Commission.

Vo examine the usual compensation case for a determination of whether there is any substantial evidence to support the order or award of the Commission, but in this case we have examined the record for matters that would toll the statute, or estop the appellees from pleading it, and we have found none.

We consider the facts to be clear, that the appellant sustained an injury to his right knee while in the course of his employment as a salesman for United States Tobacco Company. The injury was sustained on April 9, 1963, in a collision between the employer’s automobile, insured by Continental Casualty Company, and an automobile driven bj7 Lawrence Edwards, insured by State Farm Mutual Insurance Company. Continental Casualty also carried the workmen’s compensation insurance for the claimant’s employer, and is an appellee, along with the employer, in this case. An independent adjustment company investigated the accident on behalf of Continental Casualty under the automobile liability policy, and rendered its report to Continental Casualty on May 16, 1963, stating: “The assured driver, Lloyd McFall, sustained a sore right knee and right ankle, however, has not required any medical treatment.”

The claimant reported his injur}7 to his employer and the employer’s first report of industrial injury (A-8) was made out b}7 the employer under date of May 13, 1963, showing that appellant had sustained a knee injury; that the probable length of disability was not known; that the appellant had returned to work and that the name of his physician was Dr. Wideman.

On September 30, 1963, Dr. John W. Wideman rendered final surgeon’s report and bill on printed form to Continental Casualty showing two visits by the claimant on Ma}713 and June 17, 1963. Dr. Wideman’s reported diagnosis is blurred on the form he filled out, but it appeal's to be “possible tear of the medial meniscue and strain of its attachment to the ligament.” Dr. Wide-man reported that he recommended conservative treatment ; that appellant was told not to squat or run; that appellant was improved and pronounced as able to return to work; that no time was lost from work as far as Dr. 'Wideman knew and he anticipated no permanent injury. Dr. AVideman stated his bill for services as $22.50.

Continental Casualty paid Dr. AVideman’s bill and filed final report with the Commission on noncompensable injury form A-10, which was stamped “received on October 15, 1963.” The record does not reveal whether the appellant received a copy of this form, A-10, but at the bottom of the form is printed the following paragraph:

“Note to Injured Employee: This is a copy of a report furnished us by your employer or his insurance carrier relating the above information regarding your injury. As your disability extended for a period of less than seven days, you are entitled to no compensation. The above medical benefits have been-provided for you and paid for by your employer, however, in accordance with the provisions of the Arkansas AVorkmen’s Compensation Law. If there is any substantial error in this report, please notify the undersigned.”

Doctor AVideman was recommended to the appellant by a claims representative for State Farm Mutual Insurance Company, Mr. Edwards’ liability insurance earner, and the appellant went to Dr. AVideman on his own initiative. The appellant returned to Dr. AVideman on March 9, 1964, and a report of this visit was sent by Dr. AVideman to State Farm Mutual Insurance Co. The appellees received no copy of this report and received no request for payment for this examination. On August 28, 1964, the appellant went to Dr. Hathcock of the IIolt-Krock Clinic on his own initiative and made return visits on January 8, January 23, and May 12. 1965. The appellant terminated his employment with the appellee tobacco company on November 12, 1965. He was again seen by Dr. Hathcock oh February 17 and June 29, 1966, and a torn cartilage was surgically removed from appellant’s knee by Dr. Hathcock on July 7, Í966. Claim was filed with the Workmen’s Compensation Commission for medical expenses, as well as temporary and permanent partial disability on October 21, 1966.

The crux of appellant’s contention is set out in his points relied on for reversal, as follows:

“No period of longer than one year intervened between visits to and treatment by Drs. Wideman or Hathcock, and said treatment amounted to ‘compensation’ within the meaning of the Workmen’s Compensation Act.
The employer’s payment of the claimant’s salary while he was disabled as a result of his occupational injury was in lieu of compensation or constituted ‘compensation’ within the meaning of the Workmen’s Compensation Act.
By their conduct, the respondents have waived the filing of a claim, within the statutory period, or they are estopped to assert such Statute of Limitations.”

In effect, the appellant earnestly contends that this court should go further than it has heretofore gone in considering medical treatment and the payment of wages as payment of compensation for the purpose of extending the time,, or tolling the statute of limitations, for filing claims with the Commission in workmen’s compensation cases. The appellant cites numerous eases, of respectable authority, in support of his contention, but they are distinguishable on the facts from the case at bar.

The appellant is correct in his statement that we are committed to the rule under Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S.W. 2d 211, “that where an employer furnishes an injured employee medical services, this constitutes a payment of compensation or a waiver which suspends the running of the time for filing a claim for compensation.” The keystone to this rule is the two words “employer furnishes.” We have never held that medical services furnished by anyone oth.er than the employer or his compensation insurance carrier, constitute payment of compensation or a waiver which suspends the running'of the time for filing a claim for compensation. We are unable to see how an employer could furnish medical treatment without knowing, and without reason to know, that he is doing so.

The appellant testified as follows:

“Q. Now then, did vou see Dr. Wideman after June of 1963?
A. I’m not sure about that. I know I did see Dr. Wideman on three occasions.
Q. As a matter of fact, in March of 1964 at the request of Jack Chancey didn’t you go back and see him and he submitted a report to Jack Chancey on the State Farm Mutual Insurance Company?
A. Jack Chancey was the one that had recommended Dr. Wideman to start with.
Q. Jack Chancey is the claims representative for the insurance carrier of the adverse vehicle, the one you had the collision with, was he not?
A. I believe that’s correct.
# # *
Q. Now then, yon say yon went to Dr. Wideman on those three occasions and then it was in August or September of 1964, before you went to Dr. Hathcock. Is that correct?
A. Yes.
Q. Who told you to go to Dr. Hathcock?
A. Well, I don’t recall anybody—
Q. Mr. McGowan or United States Tobacco or Continental Casualty did not tell you to go to Dr. Hathcock, did they?
A. No.
*• # #
Q. Well, why did you go to Dr. Hathcock?
A. I wasn’t satisfied with the finding of Dr. Wide-man. I was still having trouble with my knee, it was getting worse, and I felt that I should see another doctor.
Q. Now are you still under the care of Dr. Hath-cock?
A. Yes.
Q. Have you been under the care of Dr. Hathcock continuously since you went to him on the first occasion up to the present time?
A. Yes.
Q. At the time you terminated from United States Tobacco in November, 1965, was anything said about any workmen’s compensation benefits or the medical bills of Dr. Wideman? Did you make any demand upon United States Tobacco, Mr. McGowan or Continental Casualty Company for payment of any compensation benefits or medical bills that had been incurred?
A. No, I hadn’t.”

Mr. J. R. McGowan, appellant’s supervisor while he was employed by the appellee tobacco company, testified, in part, as follows:

“Q. Did he ¡.appellant] ever complain to you about his lrnee?
A. On making of daily reports I’m sure that he may have referred to the reason for losing time was due to that but I couldn’t say exactly. I knew that he lost time, but for what reason I wasn’t positive.
Q. Were you aware of the fact that he was still going to a doctor for his knee?
A. Not necessarily for a knee. I knew that he was going to a doctor. I dicln’t know for what, our reports indicated that that’s what he had done.
* * *
Q. Mr. McGowan, were you aware that Mr. McFall was still having difficulty with his knee when he left United States Tobacco Company in November, 1965?
A. No.
Q. He was not saying anything to you about it at that time?
A. It wasn’t mentioned.
Q. I’m not talking about a claim against United States Tobacco Company.
mr. smith; He understands the question.
Q. Were you aware of the fact that he was still having difficulty with his knee?
A. No.”

Tlie appellant, as well as appellant’s former supervisor, testified that the appellant lost about thirty days from his work between the date of his injury on April 9, 1963, and his termination on November 12, 1965; that a part of this loss was occasioned by the knee injury and a part for other reasons and purposes. On this point, a part of the appellant’s testimony is as follows:

“Q. Now then, during that period of time you continued to work for the United States Tobacco Company up until your separation in November of ’65. Is that correct?
A. Yes.
Q. You say you missed thirty-three days. Can you tell us what thirty-three days you missed?
A. No, I couldn’t off hand.
Q. .You have no way of determining it?
A. I have no way of determining it.
Q. That’s just a guess, isn’t it?
A. It would be a rough estimate, yes.
Q. You missed work for several reasons during that period of time, did you not?
A. Well, yes, 1 missed work for several reasons.
Q. Prior to this accident you missed work for several reasons, did you not?
A. Yes.
Q. Illness, death in the family?
A. Yes.
* # *
Q. And you made no demands for any compensation benefits or weekly compensation benefits at any time while you worked for United States Tobacco Company?
A. No.
Q. And you have no way — it could have been twenty days you missed, it could have been forty days you missed?
A. I have no record of the days.
Q. Did you miss any days by reason of — I believe you have testified you missed days for other reasons. Matter of fact, your Father was killed during this period of time?
A. Yes.
Q. Did Amu have any other illnesses?
A. I had come down with the ’Flu on occasions and I’d had Pneumonia once and had a relapse on that.
Q. During these times they continued to pay your salary?
A. Yes.
Q. It was in the nature of sick leave then?
A. You could say that, yes.”

Arkansas Statutes Annotated § 81-1318 (a) (b) (Repl. 1960) provides in part as follows:

“(a) (1) A claim for compensation for disability on account of an injury (other than an occupational disease and occupational infection) shall be barred unless filed Avith the Commission within two [2] years from the date of the accident. * * *
(b) In cases where compensation for. disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of accident, which ever is greater. ’ ’

The appellant filed suit in the Sebastian County Circuit Court, apparently in 1966, for personal injuries against the third party tort feasor, and the employer joined as party plaintiff in that suit, not for subrogation under Ark. Stat. Ann. § 81-1340 (b) (Repl. 1960), but for the property damage to its automobile the appellant was driving at the time of his injury.

The appellant did absolutely nothing of an affirmative nature toward claiming compensation benefits as a result of his injury between the date of his injury on April 9, 1963, and the filing of the claim by his attorney on October 21, 1966. There is no evidence that he ever consulted an attorney until the suit was filed in circuit court. The claimant selected his own doctor, recommended to him not by his employer or its compensation insurance carrier, but by the claims representative of the insurance company for the third party tort feasor. When the appellant became dissatisfied with this doctor’s diagnosis and service, he obtained other medical advice, treatment and surgery, without the advice, or recommendation, and so far as the record shows, without the knowledge or consent of anyone other than him-, self. He had worked as salesman for the Sunshine Ruscuit Co. about three and one-half months prior to his surgery.

Doctor Wideman submitted his final report and bill for services on September 30, 1963, stating that he had not seen the appellant since June 17, 1963 (a period of more than three months), and that so far as he knew the appellant had lost no time from work. Appellant’s subsequent visit to Dr. Wideman on March 6, 1964, was nine months after the last visit and over five months after Dr. Wideman’s final report and bill. On March 9, three days after this last examination, Dr. Wideman reported to State Farm Mutual Automobile Insurance Company (whose representative had recommended Dr. Wideman to the appellant in the first place) that he had re-examined the appellant on March 6, 1964, and this report was closed with the statement “I hope that this information fulfills your needs. If I can be of any further help, please do not hesitate to call on me.” This report itself would indicate that appellees did not furnish Dr. 'Wideman’s services on March 6, 1964.

The subsequent medical treatment and surgery at the Holt-Krock Clinic was further from being furnished by appellees than was Dr. Wideman’s examination of March 6, 1964, and could in no sense be considered payment of compensation.

Appellees voluntarily paid Dr. Wideman for the medical service rendered the appellant on May 13 and June 17, 1963, and thereby created the unrefuted presumption that the}' “furnished” the medical treatment on those dates. We adhere to our former rule that the treatments thus furnished constituted the payment of compensation, and we hold that the statutory period of limitation for filing a claim with the Commission for additional compensation started running from June 17 1963. Reynolds Metal Co. v. Brumley, supra, and Heflin v. Pepsi Cola Bottling Co., et al, 244 Ark. 195, 424 S.W. 2d 365.

As to appellant’s lost time and the payment of wages following his injury and prior to termination, the evidence is vague and indefinite as to the dates appellant lost time from his work and as to the total amount of time lie lost because of his injury. The appellant was paid full time for the days he was off work for any reason at all and he was supposed to make the lost time up if he could. It was a company policy. There is no evidence in the record that the appellant or the appellees considered such payment as compensation or as payments in lieu of compensation, all the evidence is to the contrary. Wo adopt the majority view as announced by Larson, Workmen’s Compensation Law, Vol. 2, Voluntary Payment of Compensation, § 78.43 (c), pages 272, 273, where it is said:

“. . . [T]he majority view apparently is that payment of wages to a disabled worker does not toll the statute unless the employer is aware or should be aware that it constitutes payment of compensation for the injury. * * *
When the employee actually earns his wages by performing his regular duties after the injury, the presumption is that the wages are being paid for value received, and not in lieu of compensation. ’ ’

The appellant recognized his need for medical treatment and procured the advice and services of two doctors. Unfortunately he did not recognize his need for legal advice and failed to consult a lawyer until after the statute of limitations had run on his claim. We recognize this case as a good example of why workmen’s compensation acts are, and should be, liberally construed in favor of claimants, but we can find nothing in the facts of this case to toll the statute beyond June 17, 1963, and there simply is nothing in the law that permits us to extend the statute of limitations beyond the period fixed by statute. The judgment of the trial court is therefore affirmed.

Affirmed.