author:
Carleton Harris, Chief Justice.
      John A. Fogleman, Justice,

text:
    Fibber MEGEE, d/b/a FIBBER’S PAINT AND BODY SHOP v. R. G. REED
    5-5976
    482 S.W. 2d 832
    Opinion delivered July 10, 1972

      Wright, Lindsey ér Jennings, for appellant.

      Owens ér Fikes, for appellee.
   Carleton Harris, Chief Justice.

Just prior to March 19, 1971, appellee, R. G. Reed, took his Pontiac automobile to the repair shop of appellant, Fibber Megee, dba Fibber’s Paint and Body Shop, requesting repairs on the car, and leaving it with Megee for that purpose. During the night of March 19, at approximately 2:00 a.m., Megee’s Shop, which was a brick building with concrete floors, burned, destroying Reed’s automobile. Thereafter, appellee instituted suit against Megee alleging that the fire, and resulting damage to the car, were proximately caused by the negligence of appellant. The Cleveland County Circuit Court, sitting as a jury, held with Reed and awarded damages in the amount of $2,200.00, finding for appellee on two grounds, viz, first, on the grounds of res ipsa loquitur, and second, evidence that the pilot light in the shop was left on, which the court felt caused the fire. From the judgment so entered, appellant brings this appeal. For reversal, it is simply asserted that there was no (or insufficient) evidence of negligence to support the verdict and judgment for Reed.

The proof reflects that Reed took the car to Megee, leaving it for repairs. William Rgy Jacks, Assistant Fire Chief in Pine Bluff, testified that he conducted an investigation at the body shop for the purpose of determining the cause of the fire, but was unable to do so. He stated that the building was divided, and that the center portion was a paint shop; that the fire started in this area of the building. While he could not say whether Megee had left rags in the wrong place, or near paint containers or volatile liquids, he was throughly convinced that arson was not involved. Megee testified that, as usual, “I just checked the doors and fires to see that everything was locked up and all the lights were out.” He said that he kept flammable fluids, rags, and paint in the building; also welding equipment. He did admit that there was a pilot light on top of the oven in the paint department.

The necessary conditions for the invoking of res ipsa loquitur are (1) that it is the kind of accident which ordinarily does not occur in absence of someone’s negligence (2) that it was caused by agency or instrumentality in the exclusive control of the defendant; (5) that the accident was not due to any voluntary action on the part of the plaintiff. See Chiles v. Fort Smith Commission Company, 139 Ark. 489, 216 S.W. 11; Moon Distributors v. White, 245 Ark. 627, 434 S.W. 2d 56. The case before us is almost a perfect example of one in which the doctrine of res ipsa loquitur is applicable. In 8 ALR 3d Res Ipsa Loquitur — Fires, § 26, p. 1024, there is a discussion of the doctrine as it applies to garages, filling stations, or repair shops, including on p. 1025 a concise resume of a California case bearing much similarity to the case at hand. We quote as follows:

“In Horner v. Barber (1964) 229 Cal App 2d 829, 40 Cal Rptr 570, 8 ALR 3d 966, the plaintiff and the defendants occupied separate parts of the same building, the defendants conducting a garage, automobile repair, and automobile parts business in their portion. A fire which originated in the portion occupied by the defendants caused a fire loss to the plaintiff. In the -garage portion the defendants had stored several vehicles, some with gasoline in the tanks. This garage was separated from the defendant’s office by a partition, the windows in which were closed the night of the fire, and a door which had a small open space underneath. The fire chief testified that it was probable that a slight draft created by either the pilot light of the heater in the office or its burner, or both, drew gasoline vapors from under the stored automobiles along the floor of the garage under the door in the partition to the heater in the office, causing a flashing ‘explosion’. It was found that the evidence preponderated against the probability that the origin of the fire was incendiary, and that the stored vehicles, the proximity of the office to the vehicles, the installation of the heater, and the absence of safety devices properly could lead the trial judge to conclude that these were instrumentalities in the exclusive control of the defendants, as were the premises themselves, that the accident was not due to any voluntary action on the part of the plaintiff, and that the fire was one which ordinarily does not occur in the absence of someone’s negligence, absent some evidence that it was indendiary in nature. Res Ipsa Loquitur, it was held, may apply where the cause of the injury is a mystery, if there is a reasonable and logical inference that the defendant was negligent and that such negligence caused the injury. Judgment for plaintiff was affirmed.

In the case now before us, there is no evidence of arson, nor was there any evidence of an electrical storm, but the proof did reflect that the area where the fire occurred contained flammable fluids, rags, paint, and there were cars stored in the building which contained gasoline; in other words, we have an area containing substances that are highly flammable and combustible. Admittedly, the pilot light was left on. As in Horner, “these were instrumentalities in the exclusive control of the defendants, as were the premises themselves”; “the accident was not due to any voluntary action on the part of the plaintiff”; and, “the fire was one which ordinarily does not occur in the absence of someone’s negligence, absent some evidence that it was incendiary in nature.”

We conclude that there was substantial evidence that appellant was negligent and that the trial court was justified in finding that this was the proximate cause of the fire.

Affirmed.

Byrd and Fogleman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent. I do not find sufficient evidence to support a judgment for appellee whether it is based on res ipsa loquitur or negligence. As I see it, there is a glaring defect in the evidentiary basis for either theory, i.e., the lacic of evidence as to the cause of the fire, or the instrumentality which caused it.

We do not know how long appellee’s automobile was in the shop, or what condition it was in when taken there. We do not know how many automobiles were in the shop or what equipment was kept in the paint shop. The fire started sometime during the night between 5:00 p.m., March 19, and 2:25 a.m., March 20, 1971. The shop was in a brick building with concrete floors. The only testimony about the cause of the.fire was that of the shop owner, who had no idea what caused it, and that of the fire chief, who did not either, even though he found nothing to indicate that Megee had started the fire, and no evidence of negligence. There was a skylight in the building which opens when the wind blows. We do not know what might have come into the building through the skylight.

We recently reviewed the conditions under which res ipsa loquitur comes into play. See Dollins v. Hartford Accident & Indemnity Co., 252 Ark. 13, 477 S.W. 2d 179. It must be shown that the injury was caused by an instrumentality under the control of the defendant and that the accident causing the injury was one that, in the ordinary course of things, would not occur if those having control and management of the instrumentality had used proper care. In Dollins we said:

Dean Prosser teaches that before res ipsa loquitur, can be applied, there must first be an inference that someone must have been negligent and then the burden of proof is upon the plaintiff to show that the negligence was that of the defendant and to trace the injury to a cause or specific instrumentality for which the defendant was responsible or show that he was responsible for all reasonably probable causes. He also says that there must be an absence of any action on the part of the injured party contributing to the accident, and that the doctrine will not apply until the plaintiff has satisfactorily accounted for the conduct of the injured party. Prosser, Law of Torts, Fourth Edition (1971), pp. 214-225.

The authorities cited in the majority opinion also recognize that before the res ipsa doctrine comes into play, it must first be shown that the occurrence causing the injury was caused by a thing or instrumentality under the control or management of the defendant.

Here there is no evidence as to what instrumentality caused the fire. To say that it was caused by a pilot light on top of an oven in the paint department is sheer speculation. The investigation by the assistant fire chief and former city fire marshal gave no indication that this was considered as the instrumentality causing the fire. If we are to speculate about the cause of the fire, we might guess that some latent defect in the electrical wiring in the building caused the fire to start. It is common knowledge that this is frequently the case. For that matter, either appellee’s vehicle or another subsequently brought to the paint shop may well have brought smouldering fire, defective electrical wiring or other defects into the shop, which first produced a smouldering fire and then caused a vehicle to burst into flame after appellant and all his employees had left the premises. See, e.g., Ford Motor Co. v. Reid, 250 Ark. 176, 465 S.W. 2d 80. Who can say that some customer or visitor to the paint shop did not throw a burning or smouldering cigarette butt in or near a wastebasket or on the upholstery of an automobile seat, or leave one on a desk or table at a time and in a manner that it went undetected without there having been any negligence on the part of Megee or any of his employees? Or to be extreme, perhaps a rodent could have ignited matches in a box. Any of these causes is as likely as the burning pilot light.

In this connection Dean Prosser observes that a fire of unknown origin will not in itself justify the conclusion that negligence is the most likely explanation and the doctrine of res ipsa loquitur does not apply. Prosser, Law of Torts (Fourth Ed., 1971) 216, Ch. 6, § 39. See also Im plement Dealers Mutual Fire Ins. v. Golden, 257 Wis. 532, 44 N.W. 2d 264 (1950).

A statement of the general rule prevailing in regard to the application of the doctrine to fires appears at pp. 616-618 of Vol. 65A C.J.S., Negligence § 220.25. There it is said:

As a general rule, the mere occurrence of a fire with resultant injuries does not raise a presumption of negligence either in the kindling or the management of the fire, and the doctrine of res ipsa loquitur is ordinarily held inapplicable at least in other than exceptional instances. The rule as more fully stated is that the doctrine of res ipsa loquitur is inapplicable where the origin of the fire was unknown and it could not be determined that the fire could not or would not have occurred except for negligence, and where the physical facts surrounding the fire did not create a reasonable probability that the fire resulted from negligence. So, the doctrine may not be invoked where the evidence is such as to authorize the jury to believe that the fire could have occurred in the ordinary course of events in the absence of negligence, or could have occurred as the result of negligence of another or through the instrumentality or agency of another.
On the other hand, the doctrine has been held to apply where the circumstances under which the fire originated and spread are such as to show that defendant or his servants were negligent in connection therewith. # * #
In order to prevail on the doctrine of res ipsa loquitur in an action for fire damage, the actual cause of the fire must have been under the control of the party charged with negligence. It is not necessary that there be direct proof of the way the fire occurred for plaintiff to be entitled to invoke the doctrine, and this may be shown by circumstantial evidence, although it may not be left to mere speculation or conjecture.

We refused to apply the doctrine of res ipsa loquitur in an action against a landlord for death of tenants, allegedly due to defects in wiring of which the landlord had knowledge, where there was no substantial testimony from which it could reasonably be said that the defective wiring was the cause of the fire. Williams, Admr. v. Lauderdale, 209 Ark. 418, 191 S.W. 2d 455. That case clearly demonstrates the insufficiency of the evidence hee to support a judgment for appellee. The tenants who were burned to death occupied rooms on the second floor of the defendants’ brick building in which the landlord operated an appliance store on the first floor. The fire occurred about 4:00 a.m. When the firemen arrived they found the building badly damaged by flames, which were coming from the upstairs windows and beginning to break through the roof. There was proof sufficient to authorize the jury to find that the building was wired in such an unsafe manner that it was likely to cause a fire and that the defendants had been warned of the danger. The fire chief said that the condition of the wiring was such that the probable result would cause a fire and stated his opinion that it was the cause of the fire. He admitted, however, that the fire could have been caused by a match, a lighted cigarette, a pilot light, or a bathroom hot water heater. He also admitted, as did the fire chief in the case before us, that he did not know what did cause the fire. We said that the fire chief’s testimony did not disclose any physical condition found in the damaged building that would indicate, with that degree of certainty that excludes speculation, that the fire was started by bad wiring or that would eliminate consideration of other causes. We held the evidence of negligence insufficient and had this to say about the doctrine of res ipsa loquitur:

This holding precludes the application of the doctrine of res ipsa loquitur, ***. Before this rule may be applied it must be shown that the injury complained of was caused by an agency or instrumentality under the exclusive control of the one against whom liability is asserted, and, in such a case, it creates a presumption of negligence against the one in control of the agency or instrumentality causing the injury, where it is shown that, in the ordinary course of things, the injury would not have occurred if proper care had been exercised. Arkansas Light & Power Co. v. Jackson, 166 Ark. 633, 267 S.W. 359; 45 C. J. 1193.
As was said by appellant’s principal witness, Chief Walsh, the fire in the instant case may have been started by one or more causes, for which appellees could in no event be held responsible. In 38 Am. Jur. 1000 it is said: “Nor doees it (the res ipsa loquitur rule) apply where an unexplained accident may be attributable to one of several causes, for some of which the defendant is not responsible.” This rule was applied by us in the case of Oklahoma Gas & Electric Co. v. Frisbie, 195 Ark. 210, 111 S.W. 2d 550.

In Oklahoma Gas & Electric Co. v. Frisbie, 195 Ark. 210, 111 S.W. 2d 550, we held that res ipsa loquitur cannot be applied as a rule of law in a case where it is shown that the result might have been brought about by one of two or more speculative theories, neither of which is included or excluded by any affirmative evidence.

When resort is had to other jurisdictions, I find a substantial weight of authority supporting my view. In Arledge v. Scherer Freight Lines, 269 Wis. 142, 68 N.W. 2d 821 (1955), the parties occupied separate portions of a warehouse. In the quarters occupied by the defendant, there were two rooms in each of which there was an oil stove. An employee of defendant filled one of them, and a fire was discovered under it about an hour later. It spread t<? the warehouse and had extended about halfway in the building when the firemen arrived. The fire chiet made a determination that the fire was caused by a defective oil stove. It was held that negligence was not shown and that the application of res ipsa loquitur was not warranted. The court said that mere control over the premises and the stove afforded insufficient basis for the application of this rule. The Wisconsin court said:

Careful analysis and consideration of the plaintiff’s evidence here does not reveal with any degree of certainty the origin of the fire. It may have started in, upon, under or near the stove with or without negligence on the part of any one. From the circumstances reflected in plaintiff’s evidence it cannot be held that the fire could not or would not have occurred except for negligence. Fires frequently occur without negligence. Nor can it be held that the physical facts surrounding the fire in question created a reasonable probability that it resulted from negligence. Under a most favorable construction of the evidence presented on half of the plaintiff, we are not able to determine that the fire in question was of a kind which ordinarily would not or could not have occurred in the absence of negligence.
The fire department official ascribed “Defective Stove” as the cause of the fire. If the fire originated from a defect in the structure of the stove, the inquiry is: Was it a patent or a latent defect? Was it known, or in the exercise of ordinary care could or should it have been discovered by the defendant? The evidence throws no light upon these questions. Any answers thereto would clearly be predicated upon speculation and conjecture alone.
It is our opinion that the doctrine of res ipsa loquitur was not applicable to the facts herein.

A very analogous case is Tedrow v. Des Moines Housing Corp., 249 Iowa 766, 87 N.W. 2d 463, 86 A.L. R. 2d 830 (1958). The following passages from that opinion are certainly applicable here:

***the evidence which plaintiff thinks supports the application of the res ipsa loquitur doctrine and that which makes a jury question on the specific charge of negligence *** is the same. It appears that after the fire a fuse box was found in the ruins of the tavern portion of the building, which had contained nine fuse wells or sockets. The box was badly burned; but in each of three wells was found a one cent copper coin. Assuming that these coins had been there before the fire, the plaintiff builds his entire case upon them. He argues that pennies are commonly placed in electric sockets to replace fuses; that they are dangerous when so used, since a fuse will blow out when the circuit is overloaded, but a penny will not; and so the insulation may be burned from the electric wires and a short circuit with a very hot electric spark may result. There is some evidence that when the fire was first discovered it was in the tavern portion of the building. There is also evidence from two experts that placing a penny in the' fuse well to replace a fuse constitutes a fire hazard. * * *
The mere happening of a fire with the resultant injuries raises no presumption of negligence.***The burden is of course upon one who seeks to recover because of the negligent kindling of a fire to prove such negligence, and this is equally true whether he relies upon the evidentiary doctrine of res ipsa loquitur or upon specific acts. This is elementary. So the plaintiff here carried the burden of making a prima facie case.
We said in Dodge v. McFall, supra, page 14 of 242 Iowa, page 502 of 45 N.W. 2d: “To entitle a plaintiff to the benefit of the doctrine of res ipsa loquitur he must establish the way the injury occurred as well as defendant’s control of the instrumentalities involved.” Since plaintiff’s case here goes no further than to show that there were coins in the well sockets which created a fire hazard, we must determine whether he has sufficiently shown the way the injury occurred. The doctrine of res ipsa loquitur does not avail him unless he has made such a showing. A much cited case on this question is Highland Golf Club of Iowa Falls, Iowa v. Sinclair Refining Company, D.C., 59 F. Supp. 911. There *** the court said, ***: “Apart from statute, the Courts have been very reluctant and sparing in drawing an inference of negligence from the starting of a fire.” This, we think, is the general rule. There are of course cases involving fire damage in which the doctrine has been held available.***
But we are unable to find sufficient evidence of the manner in which the fire was kindled here to say that the requirement has been met. Giving the evidence the most favorable interpretation in favor of the plaintiff that it will reasonably bear, as we must, we are unable to find it creates a jury question as to what cause the injury. ***We may infer*** that wires led from these sockets. But we do not know that these wires were ever overloaded; that they became heated, or cast off sparks, or made a short circuit in any way. Again quoting from the Highland Golf Club case, supra, at page 919 of 59 F. Supp.: “The courts recognize that fires are frequent occurrences and in a great many cases without any negligence on the part of anyone.” While the plaintiff has shown a condition which could possibly have caused a fire, it is only conjecture that it did so. There is no evidence that the wires leading from the fuse box became overheated, or that they led to the point where the fire started, which is itself undisclosed except that it was somewhere in the tavern. The plaintiff’s experts who were called to show that the use of coins in place of fuses makes a fire hazard would not say that the fire in question was caused by this condition. Zack Cook, employed in the office of the Iowa state fire marshal for 16 years, told of various other things that cause fires, such as “electric wiring, overheated motors, overloads and smouldering cigarettes depending on whether there is paper in a waste paper basket.” He said that sometimes paper may smoulder for some time before it breaks out in flame. Lloyd Smith, an electric inspector for the city of Des Moines, said that whether the fuse box caused the fire or the fire destroyed the fuse box would be “just a guess.” He also said that a short circuit might be caused by some thing other than a defective fuse; and that without knowing the nature of the short, and the circumstances and the material that may have been close by, there is no way of telling whether a fuse had anything to do with it or not.
Many things, among them accumulations of waste paper in buildings are known fire hazards, and are so considered by fire departments. Yet can we assume that, if such an accumulation of paper in the Ceretti tavern had been shown here, without anything more, it would have furnished the foundation facts for the application of the res ipsa loquitur doctrine? The question answers itself. In Starks Food Markets v. El Dorado Refining Company, 156 Kan. 577, 134 P. 2d 1102, 1105, the Kansas Supreme Court used this apt language: “It is not only necessary to show that the offending instrumentality was under the management of the defendant, but it must be shown that it proximately caused the injury, or that the injury was caused by some act incident to the control of, the ins trumen tali ty. ”
###, we are still without anything to tell us where these circuits went, or whether they became overheated, or whether there was inflammable material near them. There is no evidence of the amount of the electric load required at the time the fire originated; that is to say, whether it would have been an overload on the particular wires leading from the sockets in which the pennies were found. The evidence to establish the manner in which the injury occurred need not be conclusive; it may be circumstantial; but it must arise above mere speculation. We are shown here something which, under certain circumstances, might be a fire hazard; as to whether those circumstances existed the record is wholly silent. The foundation facts for the application of the res ipsa loquitur doctrine are lacking.
Much the saíne reasoning applies to the matter of specific negligence pleaded ***. This also relies upon the three coins in the fuse wells. In order to make a jury question upon negligence, when the evidence is circumstantial, it must be such as to make the theory of the causation reasonably probable, not merely possible, and more probable than any other hypothesis based upon such evidence. *** We have nothing in the case at bar to show us that the fire originated along the lines of the wires connected to the coin-fortified fuse wells. The most we are told is that the fire was first discovered in the tavern portion of the building. But it may have originated from any one of many causes. Fires occur frequently, and often without negligence on the part of any one. The law rightly requires one who claims such negligence to prove it, by something which makes the theory reasonably probable. We find nothing here more than a possibility. The outbreak of the fire at the point where the fire hazard would be expected to operate, *** is an element entirely lacking in the case at bar.

The impropriety of drawing an inference of negligence prior to the establishment of the cause of the fire was emphasized by the Kansas Supreme Court in In Re Morse’s Estate, 192 Kan. 691, 391 P. 2d 117 (1964), in this language:

That courts are reluctant to infer negligence from the starting of fires and that the doctrine here sought to be applied requires a clear showing by evidence of the thing or instrumentality involved is fully demonstrated in Wehkamp v. City of Garden City, [187 Kan. 310, 356 P. 2d 826] to which we adhere. In that case, quoting extensively from Emigh v. Andrews, 164 Kan. 732, 191 P. 2d 901, we stated and held:
“In Emigh v. Andrews, ***, it was held that the doctrine of res ipsa loquitur is a rule of evidence and not of substantive law; that a mere presumption is not a thing that ‘speaks for itself,’ and that the established rule is that liability cannot result from an inference upon an inference or from presumption upon presumption. In the course of the opinion, speaking of the doctrine, it was said:
“ ' *** And that means the thing or instrumentality involved speaks for itself. It clearly does not mean the accident speaks for itself. It means that when the initial fact, namely what thing or instrumentality caused the accident has been shown then, and not before, an inference arises that the injury or damage occurred by reason of the negligence of the party who had it under his exclusive control. The inference of negligence arising from the initially established fact compels the defendant, in order to relieve himself of liability, to move forward with his proof to rebut the inference of negligence. It therefore quite properly has been said the doctrine of res ipsa loquitur is a rule of evidence and not of substantive law.’ 164 Kan. at page 734, 191 P. 2d at page 903.
“It was further said:
“ ‘ Apart from statute it appears courts are reluctant in drawing an inference of negligence from the starting of fires for the reason they are frequent occurrences and in many cases result without negligence on the part of anyone. (Citing) *** These cases are not essential to a decision in this case and we cite them only for the purpose of indicating some of the dangers which might exist in drawing an inference of negligence prior to the establishment of the cause of the fire. In other words, according to these authorities, it would appear the rule prohibiting recovery by basing an inference on another inference or presumption has peculiar force in the case of fire.’ 164 Kan. at page 736, 191 P. 2d at page 904. (Emphasis supplied.)
■Tr tp
“Measured by the foregoing rules relating to the application of the doctrine of res ipsa loquitur — and particularly with respect to fires — we have no difficulty in concluding that plaintiff’s evidence fell far short of making out a case sufficient to go to the jury. All of the evidence — as abstracted — has been set out. Nowhere do we find any evidence of ‘attendant circumstances’ from which it reasonably may be inferred that the loss occurred only because of negligence on the part of defendant city or its employees. In fact, the most that can be said of the evidence is that it merely establishes that on the night in question fire of undetermined origin destroyed the hangar and the airplane which was stored therein. The cause of the fire is left entirely to conjecture which, under the authorities, is insufficient to bring the case under res ipsa loquitur.” (187 Kan. pp. 315, 316, 356 P. 2d 831.)

The foregoing cases from other jurisdictions are in harmony with our own decisions on the doctrine of res ipsa loquitur. The California case from which a quotation is inserted in the majority opinion was from an intermediate appellate court. In that case the evidence showed that the gasoline tank of at least one or two motor vehicles was within 20 feet of an office heater and that the caps on gas tanks permitted the escape of vapors, which were flammable at temperatures ranging down to 52 degrees below zero. The fire chief testified that: the most probable fuel involved in the fire was gasoline vapor, which tends to remain along the floor of a building; there was strong physical evidence that the fire started close to the floor; that it was probable that a slight draft created by either the pilot light of the heater or its burner, or both, drew the vapors along the floor to the heater, causing a flashing explosion which carried the flame back along the path of the vapors to the greater accumulation of vapors under the vehicles, and this caused the greater amount of fire damages in the garage portion of the building. The court said that the testimony conflicted as to the the probable cause of the fire and the finder of fact could have determined it either way. That court then recognized that there was a burden upon the plaintiff to establish the probable cause of the fire. The California rule is really not different from that of our own and of other jurisdictions. In Gentleman v. Nadell & Company, 197 Cal. App. 2d 545, 17 Cal. Rptr. 389 (1961), the same district court said:

The appellant argues that her case was aided by a doctrine akin to that of res ipsa loquitur. But such argument does not advance the appellant’s position. It is clear that the trier of fact was free to draw the inference that the cause of the fire was undetermined. Under such circumstances, the doctrine of res ipsa loquitur would not have been applicable in a case based upon negligence. In Brocato v. Standard Oil Co., 164 Cal. App. 2d 749, at page 757, 331 P. 2d 111, at page 116, it is said: “The doctrine of res ipsa loquitur never has been regarded as a substitute for satisfactory proof of causation. As stated in 65 C.J.S. Negligence § 220, p. 1010: ‘ *** there can be no foundation for the application of the doctrine where the physical act or thing which caused the injury is unknown or not disclosed or identified. Accordingly, it has been held that the doctrine is inapplicable where the injury might have been brought about by one of two or more causes, neither of which is included or excluded by any affirmative evidence. ’ ” *** There is no sound basis for a contention that the fact of the storage of some imflammable materials and the fact of a subsequent fire were together sufficient, in and of themselves, to give rise to an inference as to causation in the nature of the inference which comes into being where the doctrine of res ipsa loquitur is applicable.

I would reverse the judgment. Since I am unable to say that the deficiency in the evidence cannot be supplied I would remand the case lor a new trial.

I am authorized to state that Mr. Justice Byrd joins in this dissent.

       Subsequently, he stated that he was not burning a fire in March.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Hilda PETTY v. Harold G. PETTY
    5-5948
    482 S. W. 2d 119
    Opinion delivered July 10, 1972

      William C. Gilliam, for appellant.

      Lawson E. Glover and David M. Glover, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Hilda Petty, and appellee, Harold G. Petty, were divorced in March 1969, and Mrs. Petty was granted custody of the two minor children, Mr. Petty being ordered to pay child support in the amount of $120.00 per month. On July 24, 1971, the older child, Kay, became 18 years of age and in August 1971, Mr. Petty cut the support payments in half to $60.00 per month. Thereafter, Mrs. Petty filed a petition setting out that Kay had grand mal epilepsy, a disease with which she had been afflicted since two years of age. It was further asserted that Kay could not drive a car, was unable to hold a job, was then enrolled in college, and was in dire need of support from her father, and it was prayed that Mr. Petty be ordered to show cause why he had arbitrarily reduced the monthly support; the court was further requested to define appellee’s duty of support for the future. On hearing, the court held:

“That the original Decree of Divorce ordered Defendant to pay child support in the amount of $120.00 per month for the two children born to this marriage; that the oldest child, Kay Allison Petty became 18 years of age on July 24, 1971; that because she has reached the age of 18 years, and not disabled, Defendant is relieved from paying support for her and the child support payable by him should be reduced from $120.00 per month to $60.00 per month.”

From the order so entered, appellant brings this appeal. For reversal, it is asserted that Mr. Petty’s duty to shpport Kay did not terminate when Kay reached the age of 18 as a matter of law, and that his duty to support should be extended beyond her minority because she is handicapped and disabled.

As described by Mrs. Petty, Kay takes medication consisting of a grain and one-half of Dilantin, both in the morning and afternoon and a grain of Phenobarbital twice a day, and has been taking this medication since she was two years of age. The mother stated that, without the medication, Kay suffers convulsions. It appears that she occasionally loses control of members of her body. This daughter is a student at Henderson State College, the Rehabilitation Center paying her tuition because of her epilepsy. The mother outlined that Kay is required to pay $>5.50 a week transportation, and is required to pay for her meals. Mrs. Petty testified that her daughter was unable to drive a car, and had had accidents, on one occasions getting the car out of gear and crashing through the garage door. She lives with her mother who supervises the medication. According to the evidence, Kay is in need of specialized training in order to obtain employment, and the daughter is majoring in pre-nursing at Henderson. Objection to the offer of a medical statement by appellant relating to Kay’s condition from Dr. McFarland of Hot Springs was sustained. The record reflects that Mrs. Petty has “take home” pay of $77.00 per week.

Mr. Petty who has “take home pay of $593.58 per month, testified that he cut the payments in half when the daughter reached 18 years of age, because “so far as I was concerned she was a grown person”. He admitted that he knew about the accidents, and that she was not able to drive. He said that, according to his information, his daughter was “handicapped, not disabled”. The record reveals the following on cross examination of Mr. Petty:

“Q. Can she drive? Can she work in a--
A. There is a lot of people that can’t drive.
Q. Do you feel like she can work in a factory around machinery or something?
A. No, I am not saying that but she can work.
Q. What can she do with a High School Education? Don’t you feel she needs to go to college?
A. I am not saying she don’t need to go.
Q. Don’t you feel she needs to go?
A. She probably does.
Q. She probably needs to go even more than a normal child?
A. Well, I think everyone needs to go.
Q. Don’t you think she needs to go more than a normal child would because she needs some kind of education where she can work some type of job other than factory job?
A. She needs education but she is not required to have a special education and she is not required by the Rehab to have a special education.

It appears that the chancellor denied relief because he did not consider Kay disabled, since he made the finding that she was not disabled, but we feel that the learned chancellor was in error. While, as set out in Ark. Stat. Ann. § 57-103 (Repl. 1971), generally speaking, females of the age of 18 are considered at full age for all purposes, we have held that it is the duty of the father to contribute to the support of his children, even after they have reached their majority, if the circumstances are such as to make it necessary. Upchurch v. Upchurch, 196 Ark. 324, 117 S.W. 2d 339; see also Jerry v. Jerry, 235 Ark. 589, 361 S.W. 2d 92.

Webster’s Third New International Dictionary defines “disabled” as inter alia, “incapacitated by or as if by illness, injury or wounds: Crippled”. The word “handicapped” is defined inter alia, “A disadvantage that makes achievement unusually difficult. A physical disability that limits the capacity to work”. It is at once apparent that there is a similarity in these definitions, though the word “disabled” denotes a greater inability to function in a normal manner, but there is nothing in our cases indicating that a disabled person is entitled, after becoming an adult, to continued financial aid from the father, while one who is only handicapped, is not entitled to such aid. It would appear that a determination of whether continued support is proper would have to be made on the basis of facts of a particular case.

Here, we very quickly reach the conclusion that the mother’s position is meritorious, and relief should be granted. That the daughter is unable to earn a livelihood at the present time is, we think, established, and we also agree with appellant’s argument that Kay, if she is to maintain herself in the future, is in more need of a specialized education than a normal student. The State has recognized this fact and pays for tuition, but obviously there are other expenditures, such as food and clothing. The evidence reflects that Mrs. Petty has “take home” pay of between $300.00 and $325.00 per month, and Mr. Petty has “take home” pay of $593.58 per month. Is there any valid reason why the mother alone should bear the financial responsibility of helping the daughter? Under the circumstances set out, is there any less duty on the father because he lives apart from the daughter? To ask these questions is but to answer then for each parent is responsible for bringing the child into this world and each, where financially able, has an obligation to render assistance. In the Missouri case of State v. Carroll, 309 S.W. 2d 654, a case involving an adult daughter with epilepsy, the court commented:

“A large majority of the courts of sister states, forsaking the hard rules of the common law and following the ‘dictates of humanity,’ enforce the exception and continue the obligation into majority if the child is physically or mentally incapable of maintaining himself.”

In the Kentucky case of Crain v. Mallone, 113 S.W. 67, the court said that there was no difference in the duty imposed upon a parent to support an infant and the obligation to care for a dependant adult, stating:_

“In either case the natural as well as the legal obligation is the same, if the parent is financially able to furnish the necessary assistance.”

Of course, when Kay becomes financially capable of taking care of herself, a different situation will exist, but under the present record, we hold that the court erred in granting the reduction. Accordingly, the order (decree) of the Hot Springs Chancery Court is reversed, and the cause is remanded with directions to reinstate the original order of support, i.e., $120.00 per month.

It is so ordered.

Byrd, J., dissents.

      This was a decision by the St. Louis Court of Appeals, but it is referred to by the Missouri Supreme Court in the case of Fower v. Fower, 448 S.W. 2d 585, wherein the court states that it agrees with the conclusion reached in the Carroll case.


author: George Rose Smith Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Orlandee BRADFORD et ux
    5-5959
    482 S.W. 2d 107
    Opinion delivered July 10, 1972.

      Thomas B. Keys and James N. Dowell, for appellant.

      Lightle, Tedder & Hannah, for appellees.
   George Rose Smith Justice.

This action was brought by the State Highway Commission to take a 1.07-acre tract, upon which the landowners’ residence was situated. The jury awarded $26,500 as just compensation. For reversal the Commission contends that there is no substantial evidence to support the verdict and, alternatively, that the award is excessive.

The landowners’ expert witness, Terrill Huff, valued the residence at $19,920. He arrived at that figure by appraising the structure’s 1,660 square feet at $12 a square foot. The Commission, citing Ark. State Highway Commn. v. Mahan, 249 Ark. 1022, 463 S.W. 2d 98 (1971), insists that Huff’s appraisal is not substantial evidence, because he did not have first-hand knowledge of building costs in the vicinity. Mahan testified that he based the $12-a-foot estimate upon discussions with four building contractors.

The Commission’s position is not well taken. In Ma-than the witness relied upon several printed appraisal periodicals which were not shown to reflect local building costs. Here Huff obtained his information from local contractors, whom he identified by name. An expert witness may base his opinion on hearsay. Ark. State Highway Commn. v. Russell, 240 Ark. 21, 398 S.W. 2d 201 (1966). Moreover, in Mahan counsel for the condemnor objected to the witness’s testimony and moved that it be stricken. Here no objection was made. Hearsay evidence, admitted without objection, may support a verdict. McWilliams v. R. & T. Transport, 245 Ark. 882, 435 S.W. 2d 98 (1968).

The Commission also questions Huff’s valuation of the 1.07 acres that was taken, at $600 an acre, because Huff relied upon only one sale in the vicinity, which is attacked as having involved land not entirely comparable to that involved in this case. We think the other sale was sufficiently comparable, however, to be admissible, the weight of the evidence being for the jury. Some latitude must be allowed for adjusting differences between somewhat similar lands. Ark. State Highway Commn v. Sargent, 241 Ark. 783, 410 S.W. 2d 381 (1967). Furthermore, there was neither any objection to the testimony nor any request that it be excluded from the jury.

Upon the second point, however, the Commission is right in its contention that the verdict is excessive. The landowners did not estimate the value of their land. Their only valuation witness was the expert Huff. Huff at first fixed the landowners’ total damages at $25,213. In that total he included a well house and pump, valued at $735. When it was pointed out that the well house and pump were not situated on the 1.07 acres actually taken, Huff deducted their value from his total leaving net damages of $24,478.

After the suit was filed, with a declaration of taking, the landowners repurchased the residence from the Highway Commission and moved it to another location upon their original 20-acre tract. The landowner Bradford testified that it cost $400 to have the well and pump connected to the residence at its new location. We do not agree with the Commission’s contention that the $400 expense was a duplication that should not have been considered by the jury. Had the well house and pump been rendered completely useless by the taking of the house upon the adjoining 1.07-acre tract, their value would have been a recoverable damage to the land not taken. But they were not rendered useless; so, as we have said, Huff deducted their $735 value from the total damages. There is accordingly no duplication in allowing the jury to consider the expense that was incurred in restoring the well house and pump to a usable condition. Ark. State Highway Commn v. Speck, 230 Ark. 712, 324 S.W. 2d 796 (1959).

Bradford testified that a pecan tree near the house at its original location had been taken in the condemnation. He also testified that he paid a nurseryman $110 each for transplanting two pin oak trees to provide shade for the house in its new location. We do not agree with counsel’s argument that the cost of transplanting a pin oak tree established the value of the pecan tree that was taken. (Huff did not include the value of any trees in his assessment of damages.)

We conclude that the competent testimony shows total damages on only $24,878, being Huff’s appraisal of $24,478 plus the $400 paid to reconnect the well and pump. In a situation such as this one, where no erroneous ruling by the trial court is shown, we allow the landowners to remit down to the most liberal amount that we would approve if the jury had returned a verdict for that sum. Ark. State Highway Commn. v. Carruthers, 246 Ark. 1035, 441 S.W. 2d 84 (1969). Hence the judgment will be affirmed if a remittitur of the excess above $24,878 is filed within 17 days; otherwise the judgment will be reversed and the cause remanded for a new trial.


author: George Rose Smith, Justice.

text:
    Arthur Issac HALE et al v. STATE of Arkansas
    5735
    483 S.W. 2d 228
    Opinion delivered July 10, 1972

      James L. Sloan and James R. Pate, for appellants.

      Ray Thornton, Atty. Gen., by: Jay N. Tolley, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The three appellants, Arthur Isaac Hale, Oren Ray Hayes, and Charles McMullen were convicted of burglary and grand larceny and were each sentenced to 21 years imprisonment upon each charge. The State’s proof showed that on January 5, 1970, they broke into the residence of R. H. Alexander and stole a collection of rifles, pistols, and shotguns. Three points for reversal are argued.

First, the trial judge refused to allow defense counsel to ask a witness for the State whether she had ever committed the crime of sodomy. In so ruling the presiding judge was under the impression that such a question might be put to a defendant, as bearing upon the issue of credibility, but that it cannot be put to any other witness. That distinction is not recognized by our cases. The question was proper and should have been permitted. Heath v. State, 249 Ark. 217, 459 S.W. 2d 420 (1970); Kazzee v. State, 175 Ark. 1170 (mem.), 299 S.W. 354 (1927).

Secondly, the appellant Hale contends that the court erred in allowing Officer Presley to testify to an admission made by Hale, to the effect that Hale thought that he could get the stolen property back. Officer Presley had gone to Denver, Colorado, to bring Hale back to Arkansas. The officer warned Hale of his constitutional rights when he picked him up in Denver. The admission was made about an hour and a half later, in the course of a conversation between the two men as they were returning to Arkansas in an airplane.

We think the court was right in allowing the statement to be considered against Hale. Officer Presley stated the substance of the warning that he gave Hale. It was not essential that he also state affirmatively that Hale appeared to understand the warning, that being a matter that might have developed on cross examination. Nor was it essential that the warning be repeated during the conversation bn the airliner. The situation is readily distinguishable from that considered in Scott v. State, 251 Ark. 918, 475 S.W. 2d 699 (1972), for there ninety days elapsed between the giving of the warning and the admission of guilt. Here the interval was only ninety minutes.

Thirdly, Hale sought to prove that on the day of the alleged burglary he was actually in jail in Brantley County, Georgia. The defense offered to show by Sheriff Johns, of Brantley County, that a card record kept in the normal course of business in the operation of the jail showed that Arthur I. Hale, of North Little Rock, Arkansas, had been committed to the Brantlev County jail on January 4, 1970, for drunken driving, and had been released January 6. The card was signed by Billy Harrell, a Georgia police officer who died before the trial in the court below. The trial judge refused to allow the card to be introduced in evidence, because the witness, Sheriff Johns, did not have first-hand knowledge that Officer Harrell was dead and was unable to identify the officer’s signature on the card.

The card should have been admitted in evidence. Our statute, which was copied from a federal act, allows a business record to be introduced as proof of a transaction or occurrence if the record was made in the regular course of business at the time of the event or within a reasonable time thereafter. The statute recites that all other circumstances relating to the record affect its weight but not its admissibility. Ark. Stat. Ann. § 28-928 (Repl. 1962). The act defines “business” to include every occupation or calling. Section 28-929. Under our holding in Adams v. Summers, 222 Ark. 924, 265 S.W. 2d 711 (1954), the card was admissible. Its importance to the appellants’ theory of the case is self-evident.

Reversed and remanded for a new trial.


author: Lyle Brown, Justice.

text:
    Kelly BRYANT, Secretary of State v. Benny RINKE and Odell G. KUYKENDALL
    5-6005
    482 S.W. 2d 116
    Opinion delivered July 10, 1972

      Ray Thornton, Atty. Gen., by: Fred H. Harrison, Asst. Atty. Gen., for appellant.

      U. A. Gentry, for appellees.

      Henry Woods and George E. Campbell, for Arkansas Bar Association, Amicus Curiae.
   Lyle Brown, Justice.

Separate suits were brought by appellees, Benny Rinke and Odell G. Kuykendall,. to enjoin appellant, the Secretary of State, from causing two amendments proposed by the General Assembly to be published as required by law. They alleged invalid enactments of the proposals. The chancellor agreed with appellees.

The regular session of the General Assembly of 1971 voted to submit to the electorate two proposed constitutional amendments. House Joint Resolution No. 11 proposed amendment 55 and Senate Joint Resolution No. 4 proposed amendment 56. The General Assembly failed to comply with art. 19, § 22, Arkansas Constitution of 1874 in failing to cause the amendments to be entered at length on the journals with the ayes and nays. After the complaints were filed herein, but before the cases were brought to trial, the General Assembly was called into extraordinary session. One of the purposes set out in the call by the governor was to consider “appropriate resolutions” to cause the journal entries with regard to proposed amendments 55 and 56 to reflect “more fully and completely” the final action of the legislature with regard to such proposed amendments.

The journal committees of both houses, pursuant to the directives of the extraordinary session, prepared supplements to the journals of the regular session reflecting the full texts of the resolutions and inserted them in the journals as directed by the special session.

The Arkansas Constitution, art. 19 § 22, authorizes the submission of constitutional amendments. A majority vote of all elected members of the body or bodies proposing an amendment is required and each amendment shall be entered in the journals with the ayes and nays. With respect to those requirements the chancellor held (1) that the failure of the General Assembly, in a regular session, to conform to the requirements could not be cured by action of a subsequent special session; and (2) that neither of the resolutions, after amendment, were entered in the journal with the aye and nay votes.

We have two cases which, although not exactly in point with the case at bar, reflect the importance we attach to conformity with requirements as to journal entries. McAdams v. Henley, 169 Ark. 97, 273 S.W. 355 (1925); Coulter v. Dodge, 197 Ark. 812, 125 S.W. 2d 115 (1939).

We have carefully scrutinized the journal entries as reflected in the abstract and have concluded that the trial court was correct in its finding that the journal, even after the attempted corrections, does not reflect the aye and nay votes on the two resolutions after amendment. Those defects are fatal to the resolutions. Other issues are raised by the briefs but we do not find it necessary to reach them.

The decree is affirmed with directions that the injunction to prevent the publications be made permanent.

Affirmed.


author: John A. Fogleman Justice.

text:
    THE TRAVELERS INSURANCE COMPANY v. George McCLUSKEY
    5-5999
    483 S.W. 2d 179
    Opinion delivered July 10, 1972
    [Rehearing denied August 28, 1972.]

      Terral, Rawlings, Matthews ¿r Turtle, for appellant.

      McMath, Leatherman ¿r Woods, for appellee.
   John A. Fogleman Justice.

Appellee McCluskey was injured by reason of the breaking of a wrench he was using on a construction job at Reynolds Metals Company plant at Patterson as an employee of Erection Service Company for which Travelers Insurance Company was the workmen’s compensation insurer. Travelers paid workmen’s compensation benefits to McCluskey, who later filed suit against Reynolds, Clarence Weiman, the job superintendent who furnished the wrench, and Proto Tool Company, the manufacturer of the wrench, as third-party tortfeasors. He was represented in this suit by Judge Sam Robinson, who associated the firm of McMath, Leather-man, Woods and Youngdahl. The firm of Terral, Rawlings, Matthews and Purtle represented Travelers in connection with its subrogation claim against the third-party tortfeasors. Mr. Gail O. Matthews of the Terral firm had a telephone conversation with Mr. Henry Woods of the McMath firm about Travelers’ subrogation claim. Matthews followed up the conversation with a letter dated May 30, 1968, which read as follows:

This will confirm our telephone conversation of May 28, 1968, wherein I advised you that I represent Travelers, the Workmen’s Compensation carrier for your client, and further confirm that you would honor our subrogation rights.
To date, Travelers had paid the sum of $1,870.00 temporary total and temporary partial and $3,469.00 medical. It looks like we will be paying for a long time to come.
Please call me prior to settlement or trial so I can advise you of our exact amount of interest in the case.

There was no response to this letter, but there was further correspondence between the law firms, to some of which we will later make reference.

Eventually the case came to trial in the United States District Court in Little Rock. McCluskey and his attorneys encountered unforeseen difficulties in the trial, and a verdict in favor of Proto Tool Company was directed. When this occurred the liability insurance carrier for Reynolds made an offer of $23,000 to settle the claim of McCluskey. The offer was accepted by appellee 'upon the condition that none of it would have to be paid to Travelers, and specified that payment be made under circumstances that would protect Travelers’ interest by permitting it to proceed with the lawsuit. Travelers had not filed any intervention in the suit and no notice of the offer or the settlement was given to it or its attorneys, either before or after it was effectuated. The release of Weimán and Reynolds Metals executed by McCluskey and his wife contained a reservation of McCluskey’s rights to workmen’s compensation benefits and a recognition by the parties that all rights of the employer and Travelers by way of subrogation or otherwise against any party except George McCluskey and wife remained unimpaired and unaffected by the release and settlement.

After the settlement was made, McCluskey filed a claim for additional workmen’s compensation benefits with the Workmen’s Compensation Commission, but it was resisted by appellant, which claimed a lien upon the net proceeds of the settlement made by McCluskey. The Workmen’s Compensation referee held for appellant on the basis of estoppel and by holding that there had been a “recovery” by McCluskey under Ark. Stat. Ann. § 81-1340 (Repl. 1960). The Workmen’s Compensation Commission reversed the referee’s decision, holding that appellant had no lien, because it did not intervene, and that the agreement between the attorneys was carried out. The circuit court affirmed the commission.

Appellant relies upon three points for reversal. They are:

I. That appellee is estopped to deny that appellant is entitled to a two-thirds lien upon appellee’s net recovery.

II. This case is not controlled by Si. Paul vs. Wood.

III. The court should overrule or modify St. Paul vs. Wood.

For these reasons hereinafter stated we affirm the judgment.

We shall first treat appellant’s second and third points before considering its first point.

Points II. and III.

Appellant argues that our holding in St. Paul Fire & Marine Ins. Co. v. Wood, 242 Ark. 879, 416 S.W. 2d 322, does not control here because the workmen’s compensation carrier intervened in that action and was present during all negotiations, while no offer was ever made to appellant by the carrier in this case. Our decision in the cited case did not wholly turn upon this consideration. The question there was stated in the first paragraph of the opinion, thus:

This appeal calls for construction of § 40 of the Workmen’s Compensation Act (Ark. Stat. Ann. § 81-1340 Repl. 1960) to determine whether an employee can settle his common law cause of action in negligence against a tortfeasor free of any claims of his employer’s Workmen’s Compensation carrier, where the settlement documents specifically preserve all rights of the carrier.

The workmen’s compensation carrier’s position, on appeal, was thus stated:

For reversal, St. Paul relies on one point — i.e., the court should have denied the action of plaintiff for a declaratory judgment and granted St. Paul’s statutory lien against the settlement proceeds.

Our holding was based largely upon our determination that the word “recovery” in the sense that it and the verb form “recovered” are used in Ark. Stat. Ann. § 81-1340 (a) and (b), relates to restoration or vindication of a right existing in a person by the formal judgment or decree of a competent court, at his instance and suit, unless specifically qualified by accompanying words. We pointed out the distinction made between a recovery under § 81-1340 (a) and (b) and a settlement under § 81-1340 (c) in Winfrey & Carlile v. Nickles, Admr., 223 Ark. 894, 270 S.W. 2d 923. We also said that a compromise settlement that extinguished the rights of the compensation carrier was tantamount to a recovery, under § 81-1340 (a) and (b), citing Maxcy v. John F. Beasley Construction Co., 228 Ark. 306 S.W. 2d 849. Ultimately, in affirming the trial court we said that the compensation carrier in Wood had no lien upon the proceeds of the settlement negotiated, that the workmen’s compensation carrier had all the right of subrogation against the third party that was given it by law and all that it would have had if Wood had taken no action whatsoever. We noted that nothing in Ark. Stat. Ann. § 81-1340 prevented Wood from taking a nonsuit. We also pointed out that to interpret § 81-1340 as the carrier argued would require us to hold that the statute gives the employer or his compensation carrier a first lien upon receipts of any monies received from the third party by suit or otherwise, but that the statute does not so read.

The attorneys representing all the parties who participated in the settlement of the McCluskey suit in Federal court clearly thought that the decision in Wood gave the tortfeasor and the injured employee complete freedom to make any settlement of the case they agreed upon without consulting the employer or workmen’s compensation carrier, so long as recognition was given to the right of the employer or carrier who was paying, or had paid, benefits to the employee to pursue its own statutory cause of action against the third-party tortfeasor. It is also apparent that the Workmen’s Compensation Commission so construed that decision. Even though the circuit judge expressed his personal disagreement with the majority position in Wood, he felt that it was controlling in this case and required an affirmance of the Commission’s holding. The United States District Court for the Eastern District of Arkansas has interpreted our holding in Wood to mean that § 81-1340 (a) and (b) do not apply where the tort claim is settled without litigation or prior to judgment. Boehler v. Insurance Company of North America, 290 F.Supp. 867 (1968). There are members of this court who participated in that decision, both on the majority and minority sides, who also construe the Wood opinion to permit such a settlement between the employee on the one hand, and the employer and carrier on the other. We may be sure that many, many such settlements have been made in complete reliance upon this construction of Wood during the four years intervening between the Wood decision and the circuit court’s affirmance in this case. We cannot say that there was error in the application of Wood made by the attorneys for McCluskey, Weiman and Reynolds and its liability insurance carrier, and by the Workmen’s Compensation Commission and the circuit judge. In reaching this conclusion, however, we point out that appellant does not argue that the requirements of Ark. Stat. Ann. § 81-1340 (c) have any application here or that they díctate a different result. We find no reference to this subsection in the referee’s opinion, the full Commission opinion, in the circuit judge’s opinion, or in appellant’s brief.

Appellant does argue, however, that our holding in Wood should be overruled or modified for the reason that it is manifestly unfair to a workmen’s compensation carrier, because it has a poor chance to recover when a suit is conducted in its name. Our decision in that case involved the construction of a statute which has not been amended in either of two regular sessions of the General Assembly intervening between that decision and this. We have no inclination to overrule it, and have no hesitation in holding that the parties in the suit against the third-party tortfeasors were justified in relying upon their construction of that decision.

In urging modification, appellant suggests that we hold that third-party tortfeasors should not be allowed to settle with an employee, unless and until the same "percentage offer” is made to the workmen’s compensation carrier. Appellant agrees that the principles of St. Paul v. Wood were properly applied in that case because the carrier there was demanding substantially more than the injured employee was willing to accept. Still, says appellant, the employee should not be able to settle and leave the compensation carrier out in the cold. We are unwilling to accept the premise that an insurnace carrier cannot recover in a proper case, even if we should eventually hold, as we have not, that such a carrier must prosecute in its own name its subrogation claim for benefits paid and those ultimately to be paid because of our real party in interest statute [Ark. Stat. Ann. § 27-801 [Repl. 1962).]

Although we do not feel that our holding in Wood should be modified as appellant suggests, we are impressed with appellant’s argument about the fundamental unfairness inherent in permitting an injured employee to make such a settlement as was made here, under the circumstances which existed. In Wood, the carrier had intervened, but the tortfeasor and the compensation carrier were unable to agree upon a settlement of the subrogation rights. While we there emphasized the difference between a recovery under § 81-1340 (a) or (b) and a compromise settlement under § 81-1340 (c), we did point out that (c) was controlling where there is any type of termination of an action against a third-party tortfeasor Drior to the rendition of a judgment against the third-party. We also noted that the trial court had, in the very proceeding we were reviewing, approved the settlement between Wood and the third-party tortfeasor. We did say in Wood that § 81-1340 does not so read as to require a holding that the statute gives the employer or compensation carrier a first lien upon receipts of any monies received from the third-party by suit or otherwise. We also said in Winfrey ir Carlile v. Nickles that the subsection (c) does not apply to a contested suit between the employee and the compensation carrier.

We have held that, where a settlement was made by an injured employee with a third-party tortfeasor be-_ fore the filing of a workmen’s compensation claim, § 81-1340 (c) was not applicable to the third-party tortfeasor. Hartford Insurance Group v. Carter, 251 Ark. 680, 473 S.W. 2d 918. The application of those cases, should be confined to the particular situations there involved. Fundamental fairness, justice and reason dictate that subsection (c) should apply to any settlement. We have already said in Carter, decided well after the circuit court acted in the case now before us, that St. Paul Fire & Marine Ins. Co. v. Wood involved a compromise having court approval pursuant to subsection (c). We also said that the purpose of this subsection was to permit the adjustment of such controversies between the employee and employer as existed in Wood and to require that settlements as between them have the approval of either the court or the Workmen’s Compensation Commission.

Since the statutory purpose of § 81-1340 is to protect the rights of both the compensation carrier and the employee, we shall hereafter interpret Wood to require that as between the employer (or carrier) and employee, the proceeds of any compromise settlement of a tort claim be subject to the lien of the employer or the compensation carrier unless the settlement has been approved by a court having jurisdiction or by the Workmen’s Compensation Commission, after the compensation carrier has been afforded adequate opportunity to be heard.

Point I.

Appellant argues that appellee is estopped by the conduct of his attorney from denying that Travelers is entitled to a lien upon the net proceeds of the settlement received by him. In making this argument, appellant asserts that: appellee’s attorney was given the choice of "honoring” appellant’s subrogation interest or having appellant intervene in the action, and agreed to “honor” the subrogation as evidenced by the letter of confirmation set out above; appellee’s attorney agreed to handle the interest of appellant in return for appellant’s attorney agreeing not to intervene, in order to enable appellee to prevent any mention of the payment of workmen’s compensation benefits in the presence of the jury at the trial against the third parties; in reliance upon the representation that its subrogation rights would be "honored” appellant did not intervene. In making this argument, appellant’s definition of the verb "honor” differs from ours. It relies upon the definition of the word as a noun, and asserts that implicit in the alleged agreement was an understanding that appellant’s attorney would handle the claim for appellant. We understand the verb “honor” in the context in which it is used to be synonymous with the words esteem, respect and recognize. See Webster’s New International Dictionary, Second and Third Editions. At least, it was not unreasonable for the word to be given such a meaning. Be that as it may, we have held that the doctrine of estoppel cannot be applied when anything is left to inference, argument or itendment. Ford Motor Credit Co. v. Exchange Bank & Trust Co., 251 Ark. 881, 476 S.W. 2d 208. We said that the party setting up an estoppel mu t prove it strictly, that there must be certainty to every intent, that the facts constituting it must not be taken by argument or inference and that nothing can be supplied by intendment.

Even though appellant hinges its argument on this point upon the letter from Matthews to Woods and the subsequent motion of appellee’s counsel to prevent mention of workmen’s compensation payments in the tort action, it has been suggested that estoppel may be based upon subsequent communications between the appellant’s representatives and appellee’s attorney. Yet these subsequent communications seem to be at least as consistent with appellee’s position as with appellant’s. Letters went from Matthews to Woods on March 5, 1969, September 9, 1969, and October 29,1969, the texts of which read:

If you get to the point where it appears that this case may be settled, please call me as Travelers has made additional payments since my letter of January 3, 1969.
Ufe 42. «U, ‘7V TV
Since our letter of May 30, 1969, we have paid numerous bills. Would you please advise us of the status of the third party action and if we may be of help, feel free to call us.
# * #
As you probably know, Travelers has paid a lot of money to Mr. McCluskey under the Workmen’s Compensation coverage since the suit was filed.
Prior to serious settlement negotiations, please call me or Bill Stringfellow so we can give you an up to date figure on the WCC subrogation.

On the eve of trial, the information mentioned in the previous correspondence was furnished by a letter from W. R. Stringfellow, Supervising Adjuster for appellant, a copy of which went to Matthews. Stringfellow admitted that Woods had said that the trial would take place in a day or two when he requested the up-to-date statement of medical expenses. The stated purpose for requests for a call prior to settlement regotiations could well be taken to have been accomplished.

Appellee argues forcefully that his attorney did exactly what he impliedly agreed to do, i.e., “honor” the subrogation rights of appellant by preserving them when confronted with an offer advantageous to appellee, which did specifically exclude any offer to the Workmen’s Compensation carrier. We certainly cannot say that this argument is groundless. Under the principle stated in Ford Motor Credit Co.v Exchange Bank ér Trust Co., supra, we cannot declare an estoppel as a matter of law in this case. Even if the evidence is taken to present a question of fact, we cannot say that the finding of the commission adverse to appellant was without substantial evidentiary support. The commission found that the only agreement between the attorneys in this case was that the subrogation rights of appellant would be protected and that they were protected by providing in the settlement that appellant could file and prosecute any claim it might have, thus clearly rejecting the referee’s finding that there was an estoppel.

We do not consider that appellant’s effort to establish . a custom or course of dealing between appellant and appellee’s attorney in other cases requires us to hold that appellee was estoppel. It is at least doubtful that appellee could be estopped by a course of conduct followed by his attorney in matters wholly apart from the attorney’s employment by the client. There is nothing whatever to show that Mc-Cluskey had any knowlege or notice of this custom or course of dealing. But even if appellee could be bound, appellant did not show such a course of dealing as would enable us to apply the doctrine of estoppel as a matter of law. In an endeavor to establish such a custom, appellant introduced one letter addressed by its attorneys to the McMath firm in December 1967, in which Woods was specifically asked to advise if he wanted the Terral firm to intervene, or if he would protect Travelers’ statutory lien without charge. This is a request far different from any implied from the correspondence relating to this case. Matthews testified that he had the same agreement with Woods in every case in which Travelers had a lien as that evidenced by the letter introduced. The case referred to in this letter resulted in a judgment in favor of the injured employee and a substantial payment was made to Travelers out of that recovery. Stringfellow testified that there had been a number of cases in which Woods had obtained judgments in which Travelers had a subrogation interest. He was unable to recall any where settlement was reached during trial, and particularly when settlements negotiations arose suddenly during trial. We could not say that this evidence established an estoppel as a matter of law

Appellant advocated a theory upon oral argument not theretofore advanced at any stage of the proceeding. It was that appellee was a trustee for appellant in the matter and that this action violated his fiduciary duties to appellant, entitling appellant to a lien on the settlement proceeds. It relies upon McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S.W. 2d 566. We cannot consider an argument made for the first time on appeal. Rhodes v. Earl Gill Enterprises, 245 Ark. 279, 431 S.W. 2d 846. Furthermore, the authority relied upon was not mentioned in appellant’s brief and not furnished to opposing counsel prior to argument as our rules require. Rule 18 (j), Supreme Court Rules, Supplement 1971, Volume 3A, Arkansas Statutes Annotated. We may say, however, that, in McGeorge, the third-party tortfeasor was seeking to compel the workmen’s compensation carrier to be made a party to an action against the tortfeasor by the injured employee. We held that this was not required by our “real party in interest” statute, based upon the dual bases of the insured’s relation of trustee toward the insurer and the right of the wrongdoer not to have the cause of action against him split. We have specifically approved the splitting of the cause of action by settlement in a case such as this in St. Paul Fire & Marine Ins. v Wood, 242 Ark. 879, 416 S.W. 2d 322. Distinctions made in Wood are also applicable here with reference to the trust relationship, because it was held, in McGeorge, to apply to the proceeds of recovery by judgment. We also said that a settlement which extinguishes the insurer’s rights is tantamount to a recovery by judgment.

While appellant nowhere argues that by the steps taken after appellee’s tort suit was filed it did “join in such action” as it was entitled to do, it has been suggested that this is the case. This court has always referred to this procedure as if the words “join in” meant intervene. See McGeorge Contracting Co. v. Mizell, supra; Winfrey & Carlisle v. Nickles, 223 Ark. 894, 270 S.W. 2d 923. In McGeorge we said: “An insurance company would be a proper party plaintiff should it so request, or intervene, but it would not be a necessary or indispensable party.” After saying in Winfrey that Ark. Stat. Ann. § 81-1340 recognizes separate causes of action in the compensation beneficiary and in the compensation carrier, we added:

By subsection (a) the compensation beneficiary is permitted to institute the action, with notice to the carrier so that it may intervene.

Actually intervention is the only means recognized for one who was not joined as a plaintiff by the party filing an action to “join in such action.” In Gorham v Hall, 172 Ark. 744 290 S.W. 357, We said:

Intervention, in practice, is a proceeding in a suit or action by which a third person is permitted by the Court to make himself a party. In practice an intervention is the admission by leave of court of a person, not an original party to the pending legal proceeding, by which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by such proceeding. Literally, an intervention means the act of fact of intervening; any interference that may affect the interest of others —interposition. Webster’s International Diet.; 33 C. J. 476. See, also, 20 R. C. L. 682, where “interpleader” and “intervention” are defined and the distinction drawn between them.

The subject is also treated in 59 Am. Jur. 2d, Parties, § § 129, 130, at p. 552, et seq., viz:

Persons who are not parties of record to a suit have no standing therein which will enable them to take part in or control the proceedings. If they have occasion to ask relief in relation to the matters involved, they must either contrive to obtain the status of parties in such suit or they must institute an independent suit.
JL JL jL 'rr TV 17
By the process of “intervention” a person not originally nally made a party may be permitted on his own application to obtain the status of a party to the previously instituted action. The purpose of the procedure is to enable anyone having an interest in a subject of litigation to interject himself into the case in timely season to protect his rights and to obviate delay and multiplicity of actions.
* * #
The term “intervention” with reference to judicial proceedings has a settled meaning, namely, the act by which a third party becomes a party in a suit pending between other persons, or, more specifically, the act by which a person not a party to a pending action voluntarily or by his own application becomes a party thereto.
Literally, an “intervention” means the act or fact of intervening — any interference that may affect the interest of others. In legal terminology, “intervention” is the proceeding by which one not originally a party to an action is permitted, on his own application, to appear therein and join one of the original parties in maintaining the action or defense, or to assert a claim or defense against some or all of the parties to the proceeding as originally instituted. Stated another way, “intervention” is the admission by leave of court of a person not an original party to the pending legal proceeding, by which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by such proceeding.

It can readily be seen that appellant did not “join in such action.” Actually, appellant’s argument that it was entitled to a lien by estoppel is premised upon the theory that it did not join in the action, in reliance on acts and conduct of appellee’s counsel. The theory that appellant did, in effect, join in th action is inconsistent with its theory of estoppel.

It is indeed regrettable that any misunderstanding should arise between two capable and reputable attorneys. But we cannot compensate for losses sustained as a result of such an unfortunate difference, except as permitted by application of legal principles. Under the governing law in this case, we must affirm the judgment.

George Rose Smith and Brown, JJ., dissent as to Point I.


author: J. Fred Jones, Justice.

text:
    Andrew Jackson ROWELL v. Edith Price ROWELL
    5-5987
    482 S.W. 2d 109
    Opinion delivered July 10, 1972

      Willis V. Lewis, for appellant.

      Howell, Price, Howell & Barron, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Andrew Jackson Rowell from a decree of the Pulaski County Chancery Court wherein Edith Price Rowell was awarded separate maintanance on her petition therefor, and Mr. Rowell’s counter petition for an absolute divorce was denied and dismissed. The point on which Mr. Rowell relies for reversal is designated in his brief as follows:

“That the evidence produced by the appellant herein and the corroboration thereof was more than sufficient to entitle the appellant to a divorce.”

The question before us on this appeal is not a question of what decree we would have entered had we been sitting in the place of the chancellor, but the question before us is whether the chancellor’s decree is against the preponderance of the evidence. We have many times pointed out that in chancery cases we do not disturb the chancellor’s decree on factual issues unless it is clearly against the preponderance of the evidence. Campbell v. Richardson, 250 Ark. 1130, 468 S.W. 2d 248.

The record in this case indicates a rather stormy marital relationship between the parties dating at least as far back as 1969. The record indicates that numerous petitions were filed by Mrs. Rowell for separate maintenance and for orders citing Mr. Rowell for contempt in failing to comply with court orders. Finally, on July 13, 1971, Mr. Rowell filed his counterclaim for divorce in connection with his answer of general denial to Mrs. Rowell’s last complaint for separate maintenance filed on July 1, 1971. The parties effected their last reconciliation on June 17, 1970, when Mrs. Rowell’s petition for separate maintenance was dismissed upon Mr. Rowell paying a $500 attorney’s fee and accrued court costs as ordered by the chancellor.

In his counter petition designated “cross complaint,” Mr. Rowell alleged as grounds for divorce that Mrs. Rowell “treated him with such indignities, systematically and habitually pursued, as to render and which did render his condition in life unbearable. That such conduct on her part consisted of fussing, nagging, quarreling, unmerited reproach, false accusations, contempt, studied neglect and open insult. That all these acts on her part have made it impossible for him to longer live with her.”

Mrs. Rowell testified that during the previous five years Mr. Rowell was always cursing her and threatening to kill her. She testified that Mr. Rowell physically assaulted her two or three different times and that on one occasion he knocked her against a wall bruising her breast, side and legs. She said that Mr. Rowell had an extremely high temper and that on one occasion he struck her in the mouth and broke off a tooth. She testified that Mr. Rowell was extremely jealous of her; that he unjustly and wrongfully accused her of unseemly conduct, and even accused her of hugging and kissing the preacher. Mrs. Rowell denied that she had ever done anything to bring about or justify the treatment she received from Mr. Rowell.

Harry Lee Rowell, the 27 year old son of Mr. and Mrs. Rowell, testified that he had been working for a supply company for a year and a half but prior to that he worked for his father in Mr. Rowell’s welding and wrecker service business. He said that he quit working for his father because his father and mother were throwing so much money away in divorce courts and attorney’s fees. He said that his mother worked in the business and answered the telephone; that on some occasions Mrs. Rowell would accept less money for work performed than the amount marked on the article worked on and an argument would then ensue between his father and mother. He testified that he had seen his father abuse his mother from time to time when he was a child and living with them. Young Rowell seems to attribute most of his parents’ recent difficulties to the fact that they had been offered a considerable amount of money for some property they own as an estate by the entirety and Mrs. Rowell refuses to sell or sign a deed. He testified that his father had offered Mr. Rowell “everything in the book’’ to get her to agree to sell the property; that he offered her $75,000 for her part with an automobile and the home in which they lived, but that she refused to sell.

On cross-examination young Rowell said that he left home when he was 17 or 18 years of age because his mother nagged at him about his clothing and first one thing and another. He testified that his mother and father have always quarreled off and on; that he married in 1966 and his mother and father quarreled with each other at that time. He testified that both his father and mother run to him with their complaints against the other and that he would like to see the whole matter settled between them.

The appellant, Mr. Rowell, testified that after he and Mrs. Rowell went back together in December, 1969, they lived together until October 30, 1970, when Mrs. Rowell told him to get his clothes and leave. He said on this occasion Mrs. Rowell had been on to him about the yard. He said that he and Mrs. Rowell could have gotten $200,000 for some property they own as an estate by the entirety, but that Mrs. Rowell would not let him sell. He said Mrs. Rowell complained about the way he cut the grass in their yard; that when he tried to cut the grass Mrs. Rowell would tell him to cut it some other way, and that he couldn’t even cut the grass to please her. He said that when he would come home from work Mrs. Rowell would start lowering the windows and closing the doors and tell him all the neighbors would hear him. He said he never did threaten Mrs. Rowell with physical violence except on one occasion prior to their last reconciliation. He said that on one occasion he was sitting in his room doing bookwork and Mrs. Rowell pointed a loaded revolver at him. He said that she had both fingers on the trigger of the weapon and threatened to kill him. He said he hadn’t said anything to upset Mrs. Rowell but that when she threatened to kill him with the revolver, he jerked it from her hands and told her he would knock her down and she wouldn’t get up if she did it again. He said that following their last reconciliation in 1970, he wanted to attend church and go to the altar, but that Mrs. Rowell refused to go to church with him. He said that a couple of Sundays later they did go to church together and the first thing Mrs. Rowell did was to hug and kiss the preacher. He testified that he was not jealous of Mrs. Rowell but that Mrs. Rowell was jealous of him. He said that Mrs. Rowell likes to make fun of him and enjoys coming to his shop and embarrassing him. He testified that his wife would come to his shop and sit neat the cold drink box where customers and employees would be unable to obtain cold drinks and that she would start an argument in the presence of his employees. He testified that Mrs. Rowell would wear slacks to his shop and would “shake and shimmy” before his employees. He said that on one such occasion one of his employees and another man went out of his place of business to keep from watching her. He said that when his wife first told him to get his clothes and leave, he continued to live with her for approximately one month and that when she again told him to get his clothes and leave, he did so.

Mr. Charles Pinkerton testified that he worked for Mr. Rowell part-time; that he was usually busy with his duties and did not listen to the arguments between Mr. and Mrs. Rowell. He said that when he was helping Mr. Rowell move out of the place about two years previously, he did see Mrs. Rowell kick at Mr. Rowell but there was no contact made. He said that he had heard Mrs. Rowell make derogatory remarks but that he did not know what they were. He said that Mr. and Mrs. Rowell were both abusive toward each other in their language. On cross-examination, under questioning by the chancellor, this witness testified that the one occasion when he saw Mrs. Rowell kick at Mr. Rowell when he was helping Mr. Rowell move out of the premises, occurred prior to their subsequent reconciliation.

The chancellor awarded possession of the home and furniture to Mrs. Rowell and directed Mr. Rowell to continue making the monthly payments on the home as they become due. The chancellor directed Mr. Rowell to pay $45 per week as separate maintenance to Mrs. Rowell and made certain other orders pertaining to medical bills, a Pontiac automobile and proceeds from the sale of a truck which are not questioned on this appeal.

We appreciate the reasoning in appellant’s argument as to the utter incompatibility of the parties and the futility of any hope for a future reconciliation as shown by the record in this case, but incompatibility is not a ground for divorce in Arkansas. From the overall evidence adduced at the trial in this case, it appears that most of the indignities complained of by both parties occurred prior to their reconciliation in October, 1970. It furthermore appears that such indignities as were proved by both parties were occasioned as much by the acts of one as by the acts of the other. See Lewis v. Lewis, 248 Ark. 621, 453 S.W. 2d 22. We are unable to say that the chancellor’s decree is against the preponderance of the evidence in this case.

Affirmed.