author: Carleton Harris, Chief Justice. George Rose Smith, Justice,

text:
    COMMERCIAL PRINTING CO. and Bobbie TOSCA v. W. M. Bill LEE, Judge
    77-65
    553 S.W. 2d 270
    Opinion delivered July 18, 1977
    (In Banc)

      Coleman, Gantt, Ramsay & Cox, by: William C. Bridgfortk and Spencer F. Robinson, for petitioners.

      Bill Cinlon, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for respondent.
   Carleton Harris, Chief Justice.

This litigation arises because of the trial court’s action in permitting voir dire during a criminal trial to be conducted in chambers away from the press and public.

On March 2, 1977, on a change of venue from Arkansas County, the trial of State v. Antonio Clark commenced in the Circuit Court of Lonoke County. According to the abstract, which is rather meager, upon request of the attorneys representing Clark, the voir dire of the prospective jurors was held in chambers with only the court, the prosecuting attorney, the defendant, defendant’s counsel, the court reporter, and the prospective juror who was being voir dired present. After interrogation had commenced, the circuit clerk, at request of the petitioner, advised the court that petitioner desired to be present in chambers during the voir dire, but the court advised the clerk that defense counsel wished to exclude the press “to avoid adverse publicity for our client;” this request was granted by the court, and the clerk was instructed to so advise members of the press who were desiring admission. According to the affidavit by the judge of the court, no personal request to sit in on the voir dire was made to him by members of the press. While it is not entirely clear from the record, it does not appear that petitioner knew that voir dire would be conducted in chambers, rather than the courtroom, until it had commenced. At any rate, this is not material to the decision herein, and the court was certainly advised that a member or members of the press desired admittance to the voir dire examination. Following the conclusion of the voir dire, the trial was resumed in open court. Thereafter, affidavits were executed by the judge of the court, the prosecuting attorney, and the two defense counsel, which set out the facts just enumerated, and petitioner filed this action seeking mandamus.

Preliminary matters that relate to our decision should first be disposed of, though some are not argued in the briefs. Of course, voir dire of the jury is a part of the trial itself. Sirratt v. State, 240 Ark. 47, 398 S.W. 2d 63. The news media, even though not a party to litigation in the trial court, has standing to question the validity of such an exclusion. The Florida Supreme Court in State of Florida ex rel Miami Herald Publishing Co., etc., et al, Relators v. McIntosh, Circuit Court Judge, Respondent, 340 So. 2d 904, stated:

“It has been recognized in Florida and elsewhere that the news media, even though not a party to litigation below, has standing to question the validity of an order because its ability to gather news is directly impaired or curtailed. This is so, because the public and press have a right to know what goes on in a courtroom *$* ”

See also Phoenix Newspapers, Inc. v. Jennings (Ariz.) 490 P. 2d 563, where the court said:

“One further point should be briefly considered. Respondent urges that petitioner has no standing or right to interfere with a criminal action in which it is not a party. However, we think the constitutional right here sought to be enforced is of such significance that any member of the public has a standing to question his exclusion from a judicial hearing.”

Is the issue presented now moot? It is quite true that the voir dire was completed, and that the court’s order only excluded the press and public during the voir dire, the trial thereafter resuming in the courtroom and subsequently concluding. However, we cannot agree that the issue is moot. In Nebraska Press Association, et al v. Stuart, Judge, et al, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), Chief Justice Burger, writing for the court, stated:

“The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one ‘capable of repetition, yet evading review.’ ”

Likewise, in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, the United States Supreme Court held that Ms. Roe could still challenge the Texas abortion statute, although she was no longer pregnant, stating:

“If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial state, and appellate review will be effectively denied.”

Certainly the matter of excluding the public and press from the voir dire examination may well occur again, and yet, entirely “evade review.” In the case before us, there was no opportunity to petition the Supreme Court; there was no opportunity at the time the voir dire was being conducted to make a record. The Attorney General’s office, representing the respondent, states:

“By not asserting their claim to be present at a time when steps could have been taken to determine the validity of their request, the Petitioners must be deemed to have waived their right to subsequently complain of their exclusion.”

As far as the lack of a personal request to the trial court, we have already commented on that circumstance, and certainly no reporter could have, with propriety, hammered on the door of the judge’s chambers as a matter of demanding admittance, or of expressing objections to the court’s ruling. it would appear that the petition for writ of mandamus was filed here as expeditiously as possible, same being tendered to the clerk of the court four days after the conclusion of the trial. There was no waiver.

It is argued that mandamus is not a proper remedy; in effect, this argument is simply that the matter of granting the request of counsel for the defendant was a matter of discretion with the trial court. We do not agree, for the reasons hereafter stated.

First, however, let it be said that Article 7, § 4, of the Arkansas Constitution, in defining the jurisdiction and powers of the Arkansas Supreme Court, provides that this court shall have a superintending control over all inferior courts of law and equity, and in aid of its appellate and supervisory jurisdiction, shall have power to issue, inter alia, writs of mandamus, and to hear and determine the same. We pointed out in State v. Nelson, et al, 246 Ark. 210, 438 S.W. 2d 33, that acts of trial courts can be subject to review by this court under its supervisory jurisdiction, stating, “Writs of mandamus, prohibition and certiorari are designed for the appropriate exercise of this jurisdiction, where appellate remedy is unavailable or inadequate.” In an earlier case, Edmondson v. Bourland, 179 Ark. 975, 18 S.W. 2d 1020, a guardian ad litem had been appointed for Edmondson in her suit to construe a will. Mrs. Edmondson, through attorneys of her own selection, filed a motion to set aside the appointment of the guardian ad litem for her as an insane person; the court refused to permit the motion to be filed and also struck an answer and cross-complaint which had been filed a few days before by these attorneys, the court proceeding on the ground that her defense to the action could only be made by the guardian ad litem appointed by the court. Pointing out that mandamus may be employed to prevent irreparable injury, as where the remedy by appeal is inadequate, this court held mandamus to be an appropriate remedy and commanded the trial court to proceed in accordance with the views stated in the opinion.

As stated, the matter at issue was not one which addressed itself to the discretion of the trial court, for the court lacked the authority to prohibit the public and press from the voir dire examination — which is the sole question presently before this court. Indeed, as far as the record reflects, there was not even any attempt to show how the defendant Clark would be prejudiced unless the voir dire was conducted in chambers with only court officials present. Rather, the record only reveals that a request was made by defense counsel that this be done for the reason of avoiding “adverse publicity for our client.” Actually, we have a statute, Ark. Stat. Ann. § 22-109 (Repl. 1962), enacted in 1838, which permits the public to observe the administration of justice in our courts. Where there are statutory and case law exceptions, none are applicable here.

Really, from a practical standpoint, of all the phases of a criminal trial, we can think of less reason to exclude the public, including the press, during the voir dire than at most any step taken during the course of litigation. Normally, lawyers ask prospective jurors if they know anything about the facts of the case — if they have talked with any person concerning the facts who purports to be a witness — if they are represented by one of the attorneys involved — their feelings about the possible punishment that might be imposed — or if there is any reason why they could not give both the state and the defendant a fair and impartial trial. Facts of the case are not generally discussed in voir dire; of course, publicity about the circumstances of the crime itself — any statements that had purportedly been made by witnesses, defendant, etc., were published when the crime happened or when the arrest was made.

Certainly members of the public, probably including members of a victim’s family, have the right to hear the voir dire examination of individual jurors. This may well have a salutary effect. Cases have been reversed in this court because of answers given by prospective jurors on voir dire which subsequent investigation established were false, or at least incorrect, and which might have well disqualified the prospective juror. Particular spectators in a courtroom may know of such facts and call them to the attention of interested parties.

One thing is particularly unusual about this case, viz, that the request for the closed voir dire hearing was made by the defendant.

Article 2, § 10, of the Arkansas Constitution provides that an accused in a criminal prosecution shall “enjoy the right to a speedy and public trial.”

But, says the respondent:

“The act of the Respondent was done at the request of the defendant and pursuant to the furtherance of a fair and proper administration of justice. The Petitioners have failed to show that they have suffered any prejudice due to the Respondent’s act; ...”

This is immaterial, for though a defendant is guaranteed a public trial, there is nothing in our constitution or the federal constitution which guarantees a private trial. After all, members of the public have an interest in the trial of one charged with a felony, for a crime is a wrong against the public, and affects every citizen.

This is no new premise. Probably the best known legal writer of all time, Sir William Blackstone, a member of His Majesty’s Court of Common Pleas during the 18th Century, in his Commentaries on the Laws of England, Volume 4, Page 1428, Paragraph 5 (Lewis’ Edition), stated:

“Public wrongs or crimes and misdemeanors are a breach and violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity.”

Lay citizens, in criticizing courts in reversing or dismissing criminal cases because of the state’s failure to comply with some legal requirement (though perhaps thought to be technical), frequently comment that the courts scrupulously observe every right of a defendant, but sometimes seem to overlook that the public also is directly affected by criminal acts and has a direct interest in the outcome of the proceedings.

Additionally, the courthouses are paid for with public funds; the judges, jurors, state’s attorney (and defense attorneys who have been appointed by the court because of the indigency of their clients) are paid with public funds. The public has every right to ascertain by personal observation whether its officials are properly carrying out their duties in responsibly and capably administering justice, and it would require unusual circumstances for this right to be held subordinate to the contention of a defendant that he is prejudiced by a public trial (or any part thereof).

As stated previously, we have only one question before us, viz, was the court’s order excluding the public and press from the voir dire valid? It is clear by what has been said that we have answered with an emphatic “No!”

In conclusion, whether the petition be treated as a petition for writ of mandamus, or as a petition for declaratory judgment, is really of no consequence. Of course, the case being fully disposed of in the trial court, the granting of the writ would be an empty gesture. Suffice it to say that if the circumstances had permitted the presentation of this petition to this court before the voir dire was conducted — it would have been granted.

The court erred in excluding the press and public from the voir dire.

George Rose Smith, J., concurs.

George Rose Smith, Justice,

concurring. Today’s opinion really should have been delivered on the Fourth of July, as it probably would have been in, say, 1949 or 1955, when the court customarily sat every Monday during the term, even on Independence Day. Today’s opinion would, I think, have added brilliance to the celebration.

       No written order was issued, but of course the court’s pronouncement was still an order which was fully effective and prevented the attendance of members of the press.

       Of course, in the litigation before us, there could have been no appeal because petitioner was not a party to the litigation.

       Ark. Stat. 22-404.1 (Repl. 1962).

       Many cases make clear that in cases of this nature the right of the press is the same as that of members of the public, no greater, no less. For example, see State of Florida Ex Rel Miami Herald Publishing Co., etc., et al, Relators v. McIntosh, Circuit Court Judge, Respondent, supra; Oxnard v. Superior Ct. of Ventura County, 261 ACA 505, 68 Cal. Rptr. 83 (1968).

       Clark was convicted, but of course the decision here rendered can have no effect upon the case since the exclusion of the public and press was at the request of his attorneys.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Bill C. HARRIS CONSTRUCTION CO., INC., An Arkansas Corporation, and James H. WILLIS v. M. A. POWERS
    76-340
    554 S.W. 2d 332
    Opinion delivered July 18, 1977
    (Division II)

      William M. Stocks and Thomas E. Robertson, Jr., of Bethell, Callaway & Robertson, for appellants.

      Garner, Garner & Cloar, for appellee.
   John A. Fogleman, Justice.

Appellee, M. A. Powers, as plaintiff, recovered a judgment for $9,300 against appellee Bill C. Harris Construction Co., Inc., as defendant, and the Harris Co., in turn, recovered a $4,650.00 judgment against appellant James H. Willis, cross defendant, all for damages to Powers’ TD-25B International Bulldozer. The Harris Co. and Willis appealed the judgments alleging error in the jury trial.

We state evidence in the light most favorable to the appellee. At the time the machine (which weighed over 50,-000 pounds without the blade) was damaged it was in the possession of Willis under an agreement with Powers that Willis was to use the bulldozer, for a guaranteed minimum fee, to clear some property on the Harold Moore farm near Ft. Smith. Powers also gave Willis permission to use the machine on Willis’ land at no extra charge. In November, 1972, Willis hired the Harris Co. to raise a roadbed over a slough between an island owned by Willis and the mainland of his farm, approximately a two-day job. While working on the roadbed a front end loader belonging to the construction company slipped off the roadbed into a precarious position. One Dority, a Harris employee, asked Willis if he could use the TD-25 and if Willis would help pull the loader onto the road. Willis testified that he checked the oil and fuel, and, after putting fuel in it, hooked the bulldozer to the loader with a large cable. Bill Harris showed up about that time and, after he saw the situation, had them unhook the TD-25 stating that he would send his bulldozer over in the morning to get the front end loader out of trouble.

The next day, using another bulldozer, equipped with a winch, and Powers’ machine, Harris and his employees got the front end loader back on the road. Then Powers’ bulldozer ran out of fuel. Dority obtained some fuel from Willis’ pump and put it in the machine, but it would not start, apparently because it required a “bleeding” of the fuel injectors to remove air from them. This operation required use of a special wrench, which was not available at that time, according to a witness for the Harris Co. Another witness for Harris testified that it takes from four hours to a day and a half to “bleed” a bulldozer. Harris had the TD-25 pushed to the fuel tank on the island. There is a conflict in the testimony as to whether it was pushed to the island when it ran out of gas or later, in December. There is also a dispute as to whether Willis gave Harris express permission to use the Powers’ bulldozer the second day.

The machine was still on the island in the spring of 1973 when the island was flooded. The water rose over the tracks of the bulldozer. It appears that Powers first learned that it was on the island and partially submerged when he sent a Mr. Rainwater to haul it back to Ft. Smith. After Rainwater reported to Powers that it could not be moved, Powers called Willis, who explained why and how the machine came to be on the island.

Powers testified that during the next two months he had discussed the responsibility of the Harris Company for moving the bulldozer with Harris on several occasions; that he made demand on Harris to move it to high ground to “bring it home”; and that each time Harris admitted his responsibility and said he would move it. Willis testified that he also talked to Harris several times, before the first flood, about moving the dozer off the island to high ground, and that Harris agreed, but did not move it. Harris did drain the oil and put antifreeze in it.

Harris testified that he never agreed to move the bulldozer to high ground and did not consider it his responsibility to do so; that he did not know that flooding was a problem on the island; that he had been asked to move it to Ft. Smith and agreed to do this, if he could, but that every time he went to Willis’ property, either the gate was locked or the batteries were not in the bulldozer; therefore, he could not move it.

Powers testified that he finally told Harris that if he did not move the tractor within ten days that he would file suit. Powers did file this suit against the Harris Co. on July 25, 1973, claiming water damage to the bulldozer in the amount of $12,000, and seeking consequential damages and punitive damages in addition. For approximately two months during the summer of 1973, between the time Powers learned of the use of his machine by the Harris Company and his filing suit, the roadbed and the island were dry and the tractor could have been moved. In the fall of 1973, after this action was filed, the water rose again, completely submerging the machine for about fifty days.

Powers had the bulldozer moved to high ground in early 1974 at a cost of $165. On July 11, 1974, the Harris Co. filed a cross complaint against Willis alleging that any damage to the dozer was due to the negligence of Willis and Powers, jointly and severally, in failing to protect the machine from rising waters.

On appeal, the sufficiency of the evidence to establish liability is not really contested by either Harris or Willis. The principal errors alleged are in regard to evidence of, and assessment of, damages and admission into evidence of an affidavit made by a Harris Co. employee who was a witness for the Harris Co. Throughout their joint brief Willis argues that damages should be assessed on the basis that Willis was acting as Powers’ agent and this theory was argued to the trial court. But the case went to the jury on the theory of bailment, without any objection by Harris, and he offered no instructions on the theory of agency. A bailee is not an agent and an agent is not a bailee. The rules governing these relationships are entirely different. Compare the results in Richards v. McCall, 187 Ark. 61, 58 S.W. 2d 432 with Featherston v. Jackson, 183 Ark. 373, 36 S.W. 2d 405. This subject will be discussed in more detail later.

I

Appellants combine four arguments under their first assignment of error: (1) The trial court erred in denying their motion for directed verdict against them in the amount of $165, the cost to Powers for moving the bulldozer in early 1974; that the damages are limited to this amount because the doctrine of avoidable consequences applies and there is no evidence of any damage to the machine attributable exclusively to the first flood; (2) the evidence is insufficient to support a verdict for $9,300 because plaintiff was not qualified to give his opinion as to the value of the bulldozer; (3) plaintiff has no right to recover all of the damages from the Harris Co.; (4) damages are allowed only to the date suit is commenced.

(1) The doctrine of avoidable consequences limits the amount of recoverable damages in that a party cannot recover damages resulting from consequences which he could reasonably have avoided by reasonable care, effort or expenditure. Lake Village Implement Co. v. Cox, 252 Ark. 224, 478 S.W. 2d 36; Wisconsin & Arkansas Lumber Co. v. Scott, 167 Ark. 84, 267 S.W. 780; Louisville, N.O. & Texas Rd. Co. v. Jackson, 123 Ark. 1, 184 S.W. 450, Ann. Cas. 1918 A 604; Taylor v. Steadman, 143 Ark. 486, 220 S.W. 821. The doctrine appears equally applicable to damages caused by breach of contract and those caused by negligence. Western Union Telegraph Co. v. Ivy, 102 Ark. 246, 143 S.W. 1078. Therefore, we will draw from both kinds of authorities to reach our conclusion on this matter.

The burden of proving that a plaintiff could have avoided some or all of the damages by acting prudently rests on the defendant [Kohlenberger v. Tyson’s Foods, 256 Ark. 584, 510 S.W. 2d 555; City of Paragould v. Arkansas Light & Power Co., 171 Ark. 86, 284 S.W. 529, 46 ALR 1186; Hegler v. Board of Education of Bearden School Dist., 447 F. 2d 1078 (8 Cir., 1971)], not only on the question of causation of damages for failure to avoid harmful consequences (Farmers Cooperative Ass’n. v. Phillips, 243 Ark. 809, 422 S.W. 2d 418), but also on the question of the amount of damage that might have been avoided. Williams v. Hildebrand, 220 Ark. 202, 247 S.W. 2d 356. But whether one had acted reasonably in minimizing, mitigating or avoiding damages is, in most cases, a question of fact. See 22 Am. Jur. 2d 441, Damages § 339; 25A CJS 187, Damages, § 176(9); Lake Village Implement Co. v. Cox, supra; Baston v. Davis, 229 Ark. 666, 318 S.W. 2d 837; Beeble v. Arkansas Power & Light Co., 172 Ark. 262, 287 S.W. 766.

While being cross-examined by Harris’ attorney, Powers testified:

Mr. Willis did not notify me that the water was about to come up and something might go under; I never inquired myself about whether the water was about to come up and endanger my property.

It must be remembered that, during the entire time, the machine was in the possession of Willis as bailed property, on Willis’ land. There is no evidence that the island flooded regularly or that if it did, that this was a fact that Powers knew or should have known, and we cannot say that the mere fact that Powers waited from the summer of 1973 to early 1974 to move this 50,000 pound behemoth (which would not run under its own power without repair) is so conclusive on the issue that it became a question of law, especially when the defendants have not shown that Powers knew or should have known that it was in danger of being damaged further. Appellants’ evidence that the machine was worth no more before the second flood than after was obviously rejected by the jury. It was not error to fail to direct a verdict for Powers for $165.00.

(2) Powers testified that he ran Powers Brothers Farm Equipment Co. for 15 years before it went broke in 1955, and since had been farming and raising cattle until about five years before the trial. He said that his opinion as to value of the bulldozer was based on information gained from others over his lifetime and his attitude about the condition of the machine when he last saw it in operation, together with an advertisement of a concern that had a bulldozer exactly like his priced at $23,500. He said he had gone down to this concern’s lot and looked at their machine. He also testified that between the time he acquired the bulldozer in 1968 and November, 1972, he had collected rentals of $1,950 from the city, $375 from the Srygley landfill operation, and $1,000 from one Moore — a total of $3,325, something less than $600 a year. After he acquired the bulldozer, Powers used it in clearing his own land.

Powers testified that he paid $10,000 for the bulldozer and that it was a bargain. Soon after the purchase he invested $3,000 to have the motor overhauled and $1,300 in a new torque converter. He further stated that 20 years ago a new bulldozer was valued up to $1.00 a pound; in 1972, it was up to $1.50 a pound; his machine weighed over 50,000 pounds without the blade; one that was new in 1963 would have sold for as much in 1972; but that his was worth $20,000 in 1972. After it drowned, it was mere salvage.

Other witnesses for plaintiff stated that they had used the machine not long before it was moved to Willis’ property and that it gave good service. One of appellants’ value witnesses testified that he was a retired salesman for a company that sold D-8 Caterpillars, which are similar to TD-25 Internationals. He stated that there are some TB-8s running now that are worth more than when they were purchased new not too far back. He and another value witness for appellants testified that salvage value was between $2,000 and $3,000.

The remainder of appellants’ evidence of value conflicts sharply with that of appellee’s but we cannot say, that with his experience, both in the farm equipment business (though it was almost 20 years previous to trial) and in leasing this machine to others, that he was not qualified, especially in the light of the rule that testimony of an owner of personal property is competent evidence of value, without his qualifying as an expert. Garrett v. Trimune, 254 Ark. 79, 491 S.W. 2d 586; Boston Ins. Co. v. Farmer, 234 Ark. 1007, 356 S.W. 2d 434. Also, see Arkansas State Highway Comm ’n. v. Stobaugh, 247 Ark. 231, 445 S.W. 2d 511.

(3) Although a defendant is liable only to the extent to which his own acts have caused an injury and separate wrongs done by independent agents cannot be joined together to increase the responsibility of one of the wrongdoers, when the negligent acts of two parties combine to produce harm they are jointly and severally liable for resulting damage and either one may be held responsible for all, Bona v. Thomas Auto Co., 137 Ark. 217, 208 S.W. 306; Swan v. Attaway, 211 Ark. 510, 201 S.W. 2d 27. This is particularly so, where the injury would not have occurred had the party charged not been guilty of negligence which was a proximate cause. Langston v. Moseley, 223 Ark. 250, 265 S.W. 2d 697; Temple Cotton Oil Co. v. Brown, 192 Ark. 877, 96 S.W. 2d 401.

There was sufficient evidence for the jury to find that Willis and Harris were concurrently negligent in failing to put the machine in a safe place. Willis knew that flooding was a problem in the area. That was' the reason for raising the roadbed in the first place. Harris was also in a position to be sensitive to the problem. There was evidence on which to base a finding that they each, simultaneously, breached a duty to put the machine in a safe place.

Damages for the entire injury may be recovered from all or any one of the joint tortfeasors. The injured party is not compelled to elect as to whom he will sue. Hansen v. Bedell Co., 126 Or. 155, 268 P. 1020 (1928). He may sue each separately or join them as parties defendant. See Dunaway v. Troutt, 232 Ark. 615, 339 S.W. 2d 613. Or he may sue any one of them. Missouri Pacific R. Co. v. Armstrong, 200 Ark. 719, 141 S.W. 2d 25; Keene v. George Enterprises, 145 FS 641 (1956). There was sufficient evidence for the jury to find that the acts of Harris and Willis were negligent and were concurrent and that they were, therefore, joint tortfeasors.

The burden was on the construction company to show that the negligence of Willis would have independently caused appellee’s injury. Oviatt v. Garretson, 205 Ark. 792, 171 S.W. 2d 287.

(4) Appellants argue that the injury alleged by Powers is not a continuing trespass and that, in certain special cases involving future or continuing damages, damages in legal actions are allowed only to the date suit is commenced. There was no error in allowing evidence of, or recovery of, damages occurring after suit was filed. The prayer of the complaint was for $12,000 damages to the machine, $6,000 for loss of rentals, $10,000 punitive damages and “such other relief, both legal and proper, to which he may be entitled”.

It is the cause of action — the actionable conduct constituting an invasion of the plaintiff’s interests — which gives rise to a right to receive damages. The cause of action must be distinguished from the loss or damage resulting from the invasion, McCormick, Damages, Hornbook Series (1935) § 13, p. 47 et seq. Damages which accrue after the institution of a legal action may be recovered if they are the natural and proximate consequences of the act complained of and do not, in themselves, constitute a new cause of action. These damages are assessable up to the date of the verdict. Cooper v. Sillers, 30 App. D.C. 567 (1908); Wilcox v. Plummer, 29 U.S. 172, 7 L. Ed. 821 (1830); Fifth National Bank v. N.Y. Elevated Rd. Co., 28 Fed. 231 (C.C.S.D., N.Y. 1886); Fowle v. New Haven & Northampton Co., 107 Mass. 352 (1871); Cooke v. England, 27 Md. 14, 34, 92 Am. Dec. 618 (1867). The court, in Lawlor v. Loewe, 235 U.S. 522, 35 S. Ct. 170, 59 L. Ed. 341 (1915), stated:

Damages accruing since the action began were allowed, but only such as were the consequence of acts done before and constituting part of the cause of action declared on. This was correct.

In Jones v. Allen, 85 Fed. 523 (8 Cir., 1898) the rule was explained:

It frequently happens that the consequences of an act are not at once apparent, and that a litigant on the day of trial is able to show that certain damages have been sustained as the proximate result of a wrongful or a negligent act, which could not have been proven if the trial had occurred at an earlier day; but in such cases no court has ever as yet intimated that the right of recovery was limited to such damages as became manifest immediately after the wrongful act was committed. On the contrary, the rule is that a plaintiff is entitled to recover compensation for such damages as he can establish on the day of the trial, provided they were the proximate result of the alleged wrongful or tortious act.

At the close of his case in chief, appellee moved that the pleadings be amended to conform to the proof. Harris’ objection was overruled and the motion was granted.

Ark. Stat. Ann. § 27-1160 (Repl. 1962) provides in part:

The court may, at any time, in furtherance of justice, . . . amend any pleadings or proceedings by . . . inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.

This statute vests a broad discretion in the trial court to permit amendments to pleadings, before the trial has commenced, after it has begun, and after the evidence has all been taken, to conform them to the proof. Exercise of this discretion will be sustained unless there has been a manifest abuse. Butler County Rd. Co. v. Exum, 124 Ark. 229, 187 S.W. 329. This rule has been followed to allow damages for nursing care which had not been specified in the petition, Biddle v. Riley, 118 Ark. 206, 176 S.W. 134, 1915 F, L.R.A. 992, and even damages for a separate cause of action which arose out of the same tortious act which had been pleaded. St. Louis I.M. & S. Ry. Co. v. Power, 67 Ark. 142, 53 S.W. 572 (although in that case it was held that the trial court erred in failing to allow a continuance on the ground the defense was surprised by the new cause of action; therefore, was justifiably not prepared to try that portion of the action.)

There is no assertion that the defendants were surprised in the case at bar, in fact, their value witnesses testified as to the salvage value of the machine after the second flood. This test was stated in Railway Company v. State, 59 Ark. 165, 26 S.W. 824:

* * * If the divergence is total, that is, if it extends to such an important fact, or group of facts, that the cause of action or defense as proved would be another than that set up in the pleadings, there is plainly no room for amendment, and a dismissal of the complaint or rejection of the defense is the only equitable result.

The duty required, keeping the machine in a safe place, and the duty breached was the same during both floods. Therefore, the amendment of the pleadings to conform to the proof was not an abuse of discretion.

II

Appellants Harris and Willis asserted that the trial court erred when it gave the jury a binding instruction which required a verdict for the plaintiff if it found by a preponderance of the evidence that “Harris Construction Co. failed to give the Powers’ dozer that degree of protection that a reasonable and prudent person would have given; and that such failure was a proximate cause of the damages to said dozer.”

Appellant Harris complains that the instruction fails to include two essential elements: (1) mitigation and (2) that damages resulting from negligence or breach of duty by Willis are not attributable to defendant Harris as Willis was acting as Powers’ agent. A binding instruction which fails to include all of the essential elements of a case is erroneous. Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W. 2d 304, 307 (1948); Scott-Burr Stores Corp. v. Foster, 197 Ark. 232, 122 S.W. 2d 165 (1938); Hearn v. East Texas Motor Freight Lines, 219 Ark. 297, 241 S.W. 2d 259 (1951); Oliver v. Fletcher, 239 Ark. 724, 393 S.W. 2d 775 (1965); Phillips Co-op Gin Co. v. Toll, 228 Ark. 891, 311 S.W. 2d 171 (1958); Miller v. Ballentine, 242 Ark. 34, 411 S.W. 2d 655 (1967).

(1) Mitigation is not an essential element. Failure to mitigate damages does not relieve a tortfeasor of liability. It is a consideration, only, in the computation of the amount of damages. Bailey v. J. L. Roebuck Co., 135 Okl. 216, 275 P. 329 (1929); National Motor Club of La., Inc. v. American Indemnity Co., 170 So. 2d 729 (La. App. 1965); Sun Oil Co. v. Nunnery, 251 Miss. 631, 170 So. 2d 24 (1964); McCormick, Damages, Hornbook Series (1935) § 33, p. 129. The jury was instructed to consider the duty to mitigate and that damages from failure to do so may not be recovered. This is all that was required.

(2) Willis’ negligence is not imputed to Powers. To warrant a finding that the company’s negligence was a proximate cause it must appear that the injury was the natural and probable consequence of its negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S.W. 473. “The concurring negligence of two parties makes both liable to a third party injured thereby if the injury would not have occurred from the negligence of one of them only.” St. Louis S.W. Ry. Co. v. Mackey, 95 Ark. 297, 129 S.W. 78. “Where two concurring causes produce an injury which would not have resulted in the absence of either, the party responsible for either cause is liable for the consequent injury.” Bona v. Thomas Auto Co., supra, 137 Ark. 217.

In this case there was sufficient evidence for a jury to find that the construction company and Willis were each negligent in failing to put the bulldozer in a safe place. Harris is not relieved from liability merely because Willis’ negligence also caused the injury even though Willis was Powers’ bailee, for contributory negligence of a bailee is not imputed to the owner nor may it be used as a defense. The negligence of a bailee is not imputable to the bailor where the subject of the bailment is damaged by a third person. Mo. Pac. Ry. Co. v. Boyce, 168 Ark. 440, 270 S.W. 519; Featherston v. Jackson, 183 Ark. 373, 36 S.W. 2d 405; Sanders v. Walden, 212 Ark. 773, 207 S.W. 2d 609; Reddell v. Norton, 225 Ark. 643, 285 S.W. 328; Mullally v. Carvill, 234 Ark. 1041, 356 S.W. 2d 238. And a third person may also become liable jointly with the bailee to the bailor where such third party acts with the bailee in doing the property some wrongful injury. U-Drive-It Car Co. Inc. v. Texas Pipe Line Co., 14 La. App. 524, 129 So. 565 (1930).

This concept was explained in Van Zile, Bailments and Carriers, 2d ed. (1890) § 128, which was quoted in Gibson v. Bessemer & L.E.R. Co., 226 Pa. 198, 75 Atl. 194, 27 LRA (ns) 689, 18 Ann. Cas. 535 (1910):

The bailee does not stand in the place of the bailor; he does not represent him in such a relation as would render the bailor liable for his negligent acts, or for the negligent acts of his servants or agents, and so, while in an action brought by the bailee against third parties for injuries to the property, the third party may defend in the action upon the ground of contributory negligence upon the part of the bailee, his servants or agents, in an action by the bailor, who is the owner of the property, against a third party for injury to the bailment, the negligence of the bailee, or his servants or agents, would be no defense, for the reason that such negligence is not imputable to the bailor.

Failing to state, in the instruction, that damage caused by Willis was not attributable to Harris was, therefore, not error, because under the theory of this case as presented to the jury, Willis was not Powers’ agent. In addition, as stated in the paragraph above which concerned mitigation, even if Willis had been Powers’ agent, damages imputable to Powers would be considered only in the computation of the damages; therefore, it is not an essential element that must be included in a binding instruction.

Appellant does not point out any essential elements which should have been included in the instruction; therefore, any errors are waived.

The reasoning stated by Van Zile, supra, quoted above, also answers another assignment of error asserted by Harris that the trial court erred when it failed to direct a verdict for Harris against Powers because Willis’ failure to mitigate is imputable to Powers; therefore, damage so attributable may not be recovered directly from Harris. Certainly, Willis was in a most auspicious position to have avoided the casualty. But it is not his damages which are being litigated, but those of Powers and the jury found that Powers’ damages were not attributable to any failure on his part to do what a reasonable man would do to protect his property.

Ill

The trial court gave the following instruction:

When the negligent acts or omissions of two or more persons worked together as proximate causes of damage to another, each of those persons may be found liable. This is true regardless of the relative degree of fault between them. If you find that negligence or intentional wrongdoing of the Defendant proximately caused damage to the Plaintiff, it is not a defense that some third person may also have been to blame.

Appellant Willis objected to this instruction on the ground that Harris had alleged at all times that Willis was acting as the agent of Powers and that under this instruction any negligence of Harris would be imputed to Willis; therefore, it was misleading and improper under the circumstances. We do not so view this instruction. Appellant also points out that this is Arkansas Model Jury Instruction 2d ed., AMI 502, and the comments to this instruction indicate that the last sentence should be used only when spme person who may also have been at fault is not a party to the action.

For purposes of defense and primary recovery of a judgment Willis is not a party to the action filed by Powers. He was brought into the action by the Harris Co. for purposes of contribution only. Ark. Stat. Ann. § 27-1134 (Repl. 1962). Nothing in the Harris Co. cross-cómplaint requires Willis to defend the action against Powers nor does it require Powers to amend his complaint to allege that Willis was negligent, although it might have, had appellant elected to follow the procedure prescribed in Ark. Stat. Ann. § 34-1007 (Repl. 1962). The admonition against use of the last sentence of this instruction in the note on use is not applicable to the situation before us. In this case, Willis’ liability to Powers was not directly in issue. It was an issue only between the construction company and Willis.

IV

At the conclusion of the appellants’ evidence Powers sought to introduce into evidence, as rebuttal, an affidavit of George Dority, who had been a witness for the defendants, for the purpose of impeaching Mr. Dority’s testimony. Mr. Dority was an employee of Harris and was driving the front end loader when it got in trouble on Willis’ slough. The affidavit was a narrative statement of the events which occurred on the two days that the TD-25 was used to rescue the loader. Appellant objected to the introduction of the affidavit into evidence on the ground that Mr. Dority had been excused as a witness and was no longer available to testify. Powers’ attorney responded:

Without disclosing anything to the jury, this thing contains statements that are highly contradictory. They are the exact opposite which I went over very meticulously with Mr. Dority. This very document has been filed in this court . . .

The trial court sustained appellants!objection. The next day, before the jury was charged, appellee’s counsel again sought to introduce the affidavit. The trial court reconsidered its prior ruling and allowed the affidavit to be read to the jury. Appellants had reiterated their objections to no avail.

An affidavit is not admissible to prove a fact in issue. Shands v. State, 118 Ark. 460, 177 S.W. 18. The threshold question, therefore, is, was the affidavit otherwise admissible without foundation, as an exception to the hearsay rule, or for impeachment of the witness. The statements in the affidavit which were inconsistent with Dority’s testimony were that Willis did not put fuel in the dozer whereas in his testimony (which, on this point, was consistent with the testimony of all the other witnesses who were present at the site) he stated that Willis did put fuel in the dozer; and that Willis drove the dozer from the high ground to the slough, whereas in his testimony Dority stated that he had driven it. Powers argues that it was admissible because it was an admission by an agent of the defendant or a declaration against interest. It is not admissible as a declaration against interest because the threshold criterion for admission of this type of statement is that the declarant must be dead or at least unavailable. Home Ins. Co. v. Allied Tel. Co., 246 Ark. 1095, 442 S.W. 2d 211; Leflar, “Theory of Evidential Admissibility — Statements Made Our of Court,” 2 Ark. L. Rev. 26, at 43 (1947-48).

Without reaching the question of whether Dority made the statement as an agent for Harris, the statement was not admissible as an admission because it was not an admission of negligence. St. Louis I.M. & S. Ry. Co. v. Holmes, 96 Ark. 339, 131 S.W. 692. If there was negligence during the time that Dority was present (and the testimony and affidavit concerned only events which took place on the days the front end loader was in trouble) it occurred when the tractor ran out of gas — when Harris was using it, and Willis was not even present. It was not negligence to refuel the tractor nor was it negligence to not refuel it if there was sufficient fuel in the tank to operate it.

As the affidavit was not admissible as an exception to the hearsay rule, we must consider whether it was admissible to impeach Dority’s testimony. Ark. Stat. Ann. § 28-708 (Repl. 1962) provides:

Questioning as to previous statements prior to impeachment. — Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning the same, with the circumstances of time and persons present, as correctly as the examining party can present them; and if it is in writing, it must be shown to the witness, and he allowed to explain it.

It would be difficult to state, with more precision and clarity than the statute, the rule that a foundation must be laid for impeaching the testimony of a witness. The statutory rule has been followed without exception, both as to non-written statements, Murphy v. St. Louis I.M. & S. Ry. Co., 92 Ark. 159, 122 S.W. 636; Carpenter v. State, 62 Ark. 286, 36 S.W. 900, and as to written statements, even an affidavit. Wildrick v. Raney, 170 Ark. 1194, 282 S.W. 17. And the fact that this affidavit had been filed in the record in this case is not material.

Admission of this contradictory statement into evidence without giving the witness an opportunity to explain the inconsistencies was prejudicial because it may well have given the jury the impression that the defense had presented a carefully orchestrated defense based on perjured testimony. Material questions in this case could only be decided by choosing between sharply conflicting testimony. This is especially true on the issue of damages and on the question of whether Harris left the bulldozer on the island with knowledge and consent of Willis; whether the lock on the gate was sufficient excuse for Harris to fail to move the machine; and whether Harris did assure Powers that he would move it. The error was prejudicial; therefore, this cause of action must be reversed and remanded for a new trial.__

For the error indicated, the judgments are reversed and the cause remanded.

We agree. Harris, C.J., and Roy and Hickman, JJ.

       Cert. den. 171 U.S. 687, 18 S. Ct. 943.

       Arkansas Uniform Rules of Evidence, «ff. July 1, 1976, Rule 613 (b) was not in effect which this case was tried. It provides:

        (b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801 (d) (2).


text:
    COMMERCIAL UNION INSURANCE COMPANY OF AMERICA v. Juanita T. HENSHALL and Steve JAGGARS
    76-387
    553 S.W. 2d 274
    Opinion delivered July 18, 1977
    (In Banc)

      Plegge, Lowe & Whitmore, for appellant.

      Smith, Williams, Friday, Eldredge & Clark, by: J. D. Watson, for appellees.
   John A. Fogleman, Justice.

Appellees brought this declaratory judgment action to determine their insurer’s duties, under a homeowner’s policy, to defend a personal injury action on their behalf and to pay any damages that might ensue. The trial court held, after a hearing and consideration of stipulated facts, a deposition of appellees and certain exhibits, that appellant-insurance company had both a duty to defend and a duty to pay damages that may be recovered by the injured party.

The insurer appealed, urging, as points for reversal, that its duty to defend is determined by the allegations in the complaint filed by the injured party; that only the injured party may change the allegations in his complaint, which cannot be varied by affidavits of the insured; that the homeowner’s insurance policy excludes from coverage injuries connected with business; and the injured party alleged that he was a business invitee and, therefore, was within the exclusion.

The allegations in the pleading filed by Dr. Benjamin C. Alstadt, the allegedly injured party, which are pertinent to the issues before this court are: he was a business invitee upon the premises of the Jaggars Audio Production Studio at 6720 Mabelvale Cut-Off, which is operated by the defendant, Steve Jaggars, the defendant Mrs. Arthur C. Henshall, being the owner of the real property on which the studio is located; Dr. Alstadt was on the premises of the defendants for business purposes; while in the course of transacting this business the plaintiff tripped and fell over a wire fence strung by the defendants in the yard of the premises causing severe injuries to the plaintiff; that the defendants knew, or should have known, that the wire fence created a dangerous condition for the plaintiff and should have removed said wire fence before allowing a business invitee to walk in the area.

The homeowner’s policy pertinent to this action was issued to Mr. Arthur C. and Juanita T. Henshall and covered their residence and appurtenant structures at 6720 Mabelvale Cut-Off. On the “daily report,” which had appropriate boxes to be checked for coverage and rate making purposes, certain exceptions were listed. One of these was an exception for a business operated on the premises. The appropriate box was not checked to indicate that a business was being operated on the premises. The policy provided under Coverage E — Personal Liability, that the company would pay on behalf of the insured ail sums which they should become legally obligated to pay as damages because of bodily injury or property damage, to which the insurance applies, caused by an occurrence. Occurrence was defined as an accident, including injurious exposure to conditions, which results in bodily injury. Coverage E further provided that the insurance company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent.

The policy provides, as an exclusion, that it does not apply under Coverage E — Personal Liability to bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits.

The deposition and exhibits reveal that Mrs. Henshall was the owner of the real property at 6720 Mabelvale Cut-Off and that she, her husband and appellee Steve Jaggars, who is her father, shared a home on the premises. A short time before the alleged injury occurred Mr. Jaggars had built a concrete block building on the rear portion of the lot (a corner lot) and had opened a sound recording studio therein. He had been in the sound recording business for some years and from time to time had recorded music for Dr. Alstadt. On the day the alleged injury occurred Dr. Alstadt had visited the studio to have Mr. Jaggars record a song he had written. After they were finished with the recording Dr. Alstadt left the building but mistakenly left his music behind. He came back, after dark, to retrieve the music. He found the studio closed and locked. He made his way to the Henshall back door, knocked, and when Mr. Jaggars answered the door he asked Jaggars for his music and then left. The next day Dr. Alstadt phoned Mr. Jaggars and reported that when he was on the premises he had fallen and broken his arm. Jaggars did not know where or when Dr. Alstadt was injured but surmised that he had tripped and fallen over the fence before he knocked on their door. He thought he remembered the doctor stating that he had fallen but was not sure. He thought the doctor must have fallen over the portion of the fence near the carport and the back door of the house.

A diagram of the premises showed that the two buildings were separated by a carport and that a wire fence was located a few feet beyond the end of the carport on the far side of a side door to the studio. The back door of the residence opened on the carport. Jaggars stated that the fence was built as an enclosure for a small dog. From the diagram, it appears to completely encircle the area beside the house and in back of and beside the studio. A photograph shows a fence beside the parking lot and extending to the side street on which the studio faces.

Appellant argues that, because Dr. Alstadt alleged in his complaint that he was a business invitee, it has no duty to defend the action because injury to a business invitee is excluded as “injury . . . arising out of business pursuits of any insured.” In making this argument, appellant relies upon the general rule that its duty to defend is determined from the allegations of the complaint filed against the insured. See Equity Mutual Insurance Co. v. Southern Ice Co., 232 Ark. 41, 334 S.W. 2d 688. But in Proctor Seed & Feed Company v. Hartford Ins. Co., 253 Ark. 1105, 491 S.W. 2d 62, we observed that there may be situations where the insurance company’s duty to defend cannot be determined simply from the allegations of the complaint. This is such a case.

The insurance company may not close its eyes to facts it knew or should have known, because they were easily ascertainable. Information from the insured and a simple inspection of the property would have disclosed facts which would have raised questions not only as to the status of Dr. Alstadt but as to the nature of the activities involved. Dr. Alstadt came to the premises after business hours to retrieve a forgotten article and it is quite likely that his injuries occurred, not on the part of the premises devoted to business pursuits, but on the premises of appellees’ home and that both his “activities” and whatever “activities” of appellees are relied upon as negligent acts or omission, are ordinarily incident to non-business pursuits.

The courts strictly interpret exclusions from insurance coverage and resolve all reasonable doubts in favor of the insured who had no part in the preparation of the contract. Security Ins. Co. of Hartford v. Owen, 252 Ark. 720, 480 S.W. 2d 558; First Pyramid Life Ins. Co. of America v. Thornton, 250 Ark. 727, 467 S.W. 2d 381. The phrase “injury . . . arising out of business pursuits” does not necessarily exclude any person who comes upon the property because business activities are conducted thereon. Our examination of the authorities discloses that the clause is a fairly common one in homeowner’s policies, but we have found no case giving it as broad an interpretation as that appellant urges on us. See cases annotated in 12 Couch on Insurance 2d § 44.516 (Supp. 1976). Appellant, on whom rests the burden of demonstrating error of the trial court, has not directed us to any such authority. It would not have been difficult for appellant to have written a policy excluding any business invitee from coverage. It did so, in an exclusion from coverage F, by excluding bodily injury to “any person while on the insured premises because a business is conducted or professional services are rendered thereon. ” By a few apt words, it could have made it clear that the exclusion relied upon is as broad as it now contends it is. See Aetna Cas. & Sur. Co. v. Sengal, 183 Ark. 151, 35 S.W. 2d 67. Where the policy provisions are susceptible of two interpretations, that most favorable to the insured must be adopted. Aetna Cas. & Sur. Co. v. Sengal, supra. In case of doubt provisions of the policy will be construed most strongly against the insurer. American Indemnity Co. v. Hood, 183 Ark. 266, 35 S.W. 2d 353. We cannot say that coverage is excluded simply because Dr. Alstadt was a business invitee, if indeed he was.

Since liability for the alleged injury is not necessarily excluded from coverage because the injured party may have been a business invitee we must consider whether the appellant is otherwise excused from its duty to defend. Dr. Alstadt, in his pleading, did not allege that the fence was connected in any way with a “business pursuit.” But he did allege that the fence was on the “premises” of the business; therefore, it might be inferred that the fence was so connected with a business pursuit as to come within the exclusion. It is not necessary that we make this determination solely on the basis of the complaint and the policy. It was shown at the trial of this case that the fence was not solely on the “premises” of the Jaggars studio, but that it was on the “premises” adjacent to the insured’s home and that this is where the injury probably occurred.

The Jaggars studio, as revealed by photographs and the deposition, was located in a separate building from the home. The equipment used in the business consisted of tape recorders, mixing consoles, reverberation units, duplicating equipment, such as cassettes and reel to reel playback equipment, amplifiers, speakers and studio facilities, none of which were demonstrated to have any relationship with the fence. Appellees deposed that the fence was used as an enclosure for their dog.

Although appellant complains that its rates were based on the supposition that it was solely residential property, there was no evidence that the rate would have been different had the property’s dual function been noted. The burden of proof is on the insurer to show that an injury was caused by an excepted event. Financial Sec. Life Assur. Co. v. Wright, 254 Ark. 791, 496 S.W. 2d 358; Lynch v. Travelers Indem. Co., 452 F. 2d 1065 (8 Cir., 1972).

The duty to defend is broader than the duty to pay damages and the duty to defend arises where there is a possibility that the injury or damage may fall within the policy coverage. Carter v. Aetna Cas. & Sur. Co., 473 F. 2d 1071 (8 Cir., 1973). We do not yet know whether the portion of the fence Dr. Alstadt fell over was the one connected to the home and there was no evidence that the other parts of the fence served the same purpose as the part referred to in the deposition. The facts have not been fully developed and will not be until the personal injury action is tried. However, appellees did present a prima facie case of coverage from which the duty to defend resulted.

The judgment is affirmed insofar as appellant’s duty to defend is concerned, but that portion of the judgment holding that appellant must pay any damages recovered against insured is reversed as determination of that question must be postponed until after the facts are developed at trial of the personal injury action.


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

text:
    Herman DYE et ux v. Fred R. BURDICK et ux
    77-6
    553 S.W. 2d 833
    Opinion delivered July 18, 1977
    (In Banc)

      Howard L. Slinkard, for appellants.

      Little, Lawrence, McCollum & Mixon, by: Sidney H. McCollum, for appellees.
   John A. Fogleman, Justice.

This is an appeal from a judgment on a verdict directed against appellants Herman Dye and his wife, whose home was destroyed by flooding which resulted from the bursting of a dam on property owned by appellees. We agree with appellants that a verdict should not have been directed upon the conclusion of the evidence on behalf of the appellant-plaintiffs.

Sometime in the 1960’s, Clifford Mills contracted with a contractor to build a stock pond or small lake on a farm he owned in Benton County, by building an earthen dam across a narrow hollow or ravine which constituted a drain or waterway. The dam was 29 to 30 feet high, over 350 feet long and capable of containing five to six acres of water. It lay across the narrowest part of the ravine. The drain plain was between 92 and 95 acres. A spillway cut by a bulldozer was 10 to 12 feet wide at the bottom. Appellants’ dwelling house was located one-fourth to one-half mile below the dam.

In 1970, Burdick purchased the Mills property and moved into a dwelling on the property in 1973. Between June 6 and June 9, 1974, there was rainfall in excess of nine inches. There was considerable flooding in the area on June 8 and 9, with creeks overflowing their banks. Several bridges and roads were washed out and Benton County was declared a disaster area. The dam on the Burdick property broke during the early morning hours of June 9. The water followed the course of the ravine and inundated appellants’ home, where they had lived for 19 years. Appellants were awakened about 3 a.m., went downstairs and found water deep enough to reach the armpits of their son, who had been sleeping on a divan downstairs. They fled upstairs. Dye said it took the water 20 or 30 minutes to recede.

Appellants brought this action against appellees in June, 1975, to recover damages for their loss as a result of the flooding. They alleged that the dam was improperly and inadequately constructed and that during the heavy rainfall on June 8 and 9, the reservoir filled and, since the spillway failed to drain off the excess water, it overtopped the dam and caused it to burst; and, as a result, their house, furniture, appliances, farm equipment, automobiles, crops, fences and other improvements were destroyed.

Appellants also alleged that appellees were negligent in that they knew or should have known that the spillway was improperly built and inadequate for the purpose intended, but failed to correct the defects or to maintain and operate the dam in a careful and prudent manner to avoid contingencies expected to occur.

Appellants later filed an amendment to their complaint. In it they alleged that appellees’ maintenance of the dam and reservoir, as it existed and had been constructed and maintained, created an inherently dangerous hazard which resulted in interference with the use and enjoyment of their land; that the abnormally dangerous activity consisted of the construction and maintenance of the dam in a deep ravine in a runoff area and not in a creek bed; that it was constructed and maintained as a stock pond but was actually a lake; that it was built with knowledge that appellants’ home was located at the bottom of the ravine; that due to the dimensions of the dam and its other characteristics, appellees knew, or should have known that any failure of the dam would result in serious damage to appellants’ property; and that the size, location and situation of the dam were a threat to appellants and a hindrance to the use and enjoyment of their property.

The rain had stopped when Herman Dye came home on the night of June 8 at 10:30 or 11:00 p.m. and Sugar Creek, north of the Dye house, had crested and was falling. He had seen this creek when it was larger. He said that other creeks had been falling during the afternoon. Dye said that, during the spring of 1974, after the record rainfall in November, 1973, he had gone to Burdick’s place to check on a sick heifer, and while he and Fred Burdick were standing between the Burdick house and the dam, Burdick had said that he couldn’t help but worry about people living below the dam, but that, if it ever was to break, he didn’t think there was any danger. Dye said that Burdick said that, in 1973, the lake had risen higher than ever before.

Dye testified that, after construction of the dam, there had been a hole in the dam, and that an effort to repair it had failed. As a result, water would leak through at higher water levels. Dye had never known water to go over the spillway.

Mrs. Dye went along with her husband on the visit to the Burdick place.She related that Burdick had said that he had been really concerned about the Dyes in the preceding November and had stood on his sun deck and watched the water lap up against the dam. He said that thereafter he did not believe the dam was going to break.

There was no evidence that water had earlier risen more than three-fourths the height of the dam. There was no evidence that appellees had done anything to the dam or lake, except to use the lake as a stock pond in connection with their farming operation.

Edward C. Grubbs, a consulting engineer, who specializes in soil mechanics and foundation engineering, who had worked with the Missouri conservation system in designing dams and had designed numerous dams in Arkansas, inspected the dam to determine the cause of its failure. Upon inspection of the earthen embankment, two-thirds of which remained intact, the cause of the failure was not apparent, but when he observed the size of the spillway he walked upstream and looked back at it and it appeared to him that the bottom of the spillway was not as low as the top of the dam. Upon measurement with surveying equipment he found that the part of the dam remaining was only eight inches higher than the spillway, and that the missing middle portion would have been not more than six inches higher than the spillway. He said that if only six inches of water started flowing over the spillway, water would begin going over the top of the dam. According to him, at a minimum, a properly designed spillway would have been 50 feet wide with a bottom five feet lower than the top of the dam. Such a spillway would have allowed water to flow two and one-half feet deep for a fifty-year flood (a flood that is possible on the average once every fifty years in a thousand years). He said that the factor of safety, i.e., the ratio of the “chances for failure on the chances for success,” for a lake 30 feet deep and containing five to six acres of water should be two and one-half. With a factor of safety of one, the dam would have been on the verge of failure, in his opinion. Grubbs said that it was obvious that the factor of safety of this dam on the day before its failure was less than one. He expressed the opinion that the spillway was not acceptable and was completely inadequate to carry the water. He felt that the middle section of the dam was some lower than the outer portions, and said that a dam which is level when built will develop a sag.

Grubbs also said that the dam was not properly constructed, because the proper procedure of putting in dirt, in six to eight-inch layers followed by rolling each layer with a sheepsfoot. roller had not been followed. He expressed the opinion that on June 8, 1974, the dam was “absolutely abnormally dangerous.” Grubbs said that the rainfall of seven inches in three days at that time was less than the fifty-year flood rainfall, which he said would be produced by a rainfall over the watershed of seven inches in 24 hours. Grubbs testified that the runoff was greater when the ground was saturated than when it was dry. He could see no reason for the breach of the dam other than by overtopping. Grubbs found trees growing on the embankment and in the spillway. Trees and growth in the spillway made it obvious to him that the dam had not been properly maintained.

Grubbs compared the November, 1973 rainfall with that in June, 1974 from U.S. Weather Bureau records and found that more rain fell in two days in November than during the three-day period in June, but said that there had been no rain for the two days preceding the heavy two-day rain in November. There had been rain for several days prior to the heavy June rain, and this, according to Grubbs, had a definite effect on the lake filling and overtopping the dam. In Grubbs’s opinion, the dam did not fail in November, 1973, because the leak or crevice in the side of the embankment would then let water flow out; but it was possible that the hole had subsequently been plugged with brush, leaves or other sediment.

Dane Galyean, a farmer who had lived nearby for eight years, testified that he was at Burdick’s place in August after the dam broke. He said that he asked Burdick if water had run through the spillway and that Burdick had said, “No.” He said that it was discussed that one could see where water had gone over the center of the dam. He had noticed the dam two or three times previously and it appeared to him that the spillway was higher than tbe center of the “dike.” Galyean had mentioned this to the previous owner, but never to Bur-dick.

Appellants list four points for reversal. Essentially they are based upon the contention that the evidence on behalf of appellants made a prima facie case for submission of the question of appellees’ liability for the damages suffered by appellants on the basis of negligence, on the doctrine of res ipsa loquitur and on the theory of strict liability. We agree that there was sufficient evidence to submit the case on the question of negligence, both on direct evidence and res ipsa loquitur, but find no basis for strict liability.

In a case quite dissimilar on the facts, we recognized the basic general rule involved here. In Anderson Hotels of La., Inc. v. Seibert, 213 Ark. 624, 211 S.W. 2d 876, we quoted that principle from 2 C.J.S., Adjoining Landowners, § 44, Footnote 82, viz:

“One who collects and keeps water on his premises, which is likely to do mischief if not properly controlled, is liable for his negligence, either in the original construction of his reservoir or receptacle, in subsequently allowing it to become defective, or in failing properly to guard against all such contingent damages as might reasonably be anticipated.”

The fact that appellees did not build the dam but bought the land several years after it was built does not insulate them from liability arising from defective construction or inadequate design. The general rule, or at least what we take to be the better rule, is properly stated by the textwriter in § 218, Waters, 78 Am. Jur. 2d 665, viz:

As a general rule, the person who is in possession and control of a dam or reservoir at the time it gives way is the one responsible for the injuries caused thereby. Thus, the grantee of a dam which was negligently constructed in the first instance is liable for injuries caused by its giving way, although he has received no express notice of the defective condition of the dam.* * *

This rule does not mean that the grantee or vendee becomes absolutely for harm or damage from an existing condition upon acquiring land upon which such, a structure is located. The limitations upon application of the general rule are stated in Restatement of the Law, 2d, Torts 2d, § 366. The text of this section and some of the comments are particularly appropriate in this case, to wit:

One who takes possession of land upon which there is an existing structure or other artificial condition unreasonably dangerous to persons or property outside of the land is subject to liability for physical harm caused to them by the condition after, but only after,
(a) the possessor knows or should know of the condition, and
(b) he knows or should know that it exists without the consent of those affected by it, and
(c) he has failed, after a reasonable opportunity, to make it safe or otherwise to protect such persons against it.

Comment on Clause (a):

£ * * *
It is not, however, necessary to the liability of one who takes possession that he in fact discover the dangerous condition. It is enough that he should know of it. “Should know” is defined in § 12 as meaning that a person of reasonable prudence and intelligence, or of the superior intelligence of the actor, would ascertain the fact in question in the performance of his duty to another, or would govern his conduct on the assumption that such fact exists. Where possession is acquired voluntarily, as by purchase, lease, or the acceptance of a gift, the person taking possession is required to make reasonable inspection and inquiry as to the condition of the land. As to any defects, disrepair, or other dangers which are patent and obvious, he therefore should know of their existence at the time he takes possession. Even as to latent defects, the vendee or lessee may have enough in the way of information or warning to lead a reasonable man to investigate, so that he “should know.” Where he has no such information or warning at the time he takes possession, his long continued occupation and use of the land may in itself justify the conclusion that he should have discovered the danger. For example, a possessor who has used the land for years may reasonably be presumed to know every condition or danger upon it, or to have failed to exercise reasonable care to investigate and discover it.
d. In determining whether the possessor should know of a particular defect or danger, the location and condition of the land, the nature of the use or occupation, and the character of the condition or danger, all are to be taken into account. A casual inspection which might be sufficient where a structure is in a lonely district may be unreasonably inadequate if it abuts upon a much traveled highway in a city. * * * A concealed condition which is not readily discoverable in the course of the vendee’s use of the land will permit a longer period of time before the possessor should know of it than one which is obvious, or which should normally be discovered in a short time.

Comment on Clause (b):

e. As to some defects, disrepair, or other dangers the vendee or lessee may reasonably assume, in the first instance, the consent of those affected by them. This is true in the case of many private nuisances. Thus the purchaser of land on which there is an old dam which, after every heavy rainfall, backs up the water of a stream so that it overlows the land of others, may reasonably assume that the condition exists with the consent of all those so damaged, and that if their rights have been invaded the grantor or some predecessor has made due compensation, or otherwise obtained their consent. In such a case some notice, complaint, or request to abate the condition may be required before the possessor should know that there is no such consent.
/. On the other hand, there are many conditions, even of private nuisance, as to which such an assumption cannot reasonably be made.* * *
This is true in particular in two types of cases. One is where the condition is imminently dangerous, and threatens serious bodily harm to persons outside of the land. Consent to the existence of such a condition and its danger cannot reasonably be assumed, in the absence of some information indicating that it has in fact been given. * * *

The general principles stated in the texts above have been applied by the courts and, even though the authorities are not unanimous on the subject, there is respectable and well-reasoned authority supporting these general rules, as applied to situations similar to the one at hand. In Town of Monroe v. Connecticut River Lumber Co., 68 N.H. 89, 39 A. 1019 (1894), it was held that a purchaser of an unsafe dam, who fails to make it safe, and to so maintain it as not unnecessarily to endanger life or property, is liable for injuries caused thereby. In that case the jury was instructed that the purchaser was “not liable for maintaining the dam in the condition in which it was when they bought it, unless they knew, or by the exercise of ordinary care would have learned, that it might be subjected, by freshets and otherwise to the strain brought to bear upon it at the time it gave way, and was insufficient to stand such strain, and that the [purchaser was]not liable unless, but for their negligence, the washout would not have occurred.” This pertinent paragraph of the opinion is appropriate here:

The defendants’ offer to show that after they bought the mill and the dam, in 1886, they never received any notice from the selectmen or other officers of Monroe, or from any source, that the dam was unsafe and insufficient, was properly excluded. No such notice was necessary. Whatever may have been the condition of the dam before its purchase by the defendants, they then became bound to keep it in a reasonably safe condition. As its owner and occupant, it was a duty cast upon the defendants by the law to so use and maintain the dam as not unnecessarily to endanger the safety or property of others; and if they neglected this duty, the law renders them liable for the consequences.

It would be difficult to imagine a case more nearly parallel to this than Richland County v. Anderson, 129 Mont. 559, 291 P. 2d 267 (1955), where the principal question was sufficiency of the evidence to support a verdict against the grantee of the owner who caused the dam in question to be constructed. The court found that the evidence was sufficient to show that the dam was not reasonably safe for the storage of water impounded by it, that when the grantee took possession of the dam and reservoirs she would have known of the dangerous condition and the risk of a break and injury to others if she had had a reasonable inspection made by one skilled in such matters and that, because of her failure to have such an inspection made and to acquaint herself with the danger inherent in the dam reservoirs after she came in possession and control, she was guilty of negligence; or, in other words, that in the exercise of ordinary care, she would have known that the dam and its spillway were negligently constructed and would not have used the dam and reservoir until they had been made secure. The Montana court said that the grantee was not an insurer against all damages which under any circumstances might be occasioned by the reservoir and dam, but that she was obligated in her maintenance and use of them, after she came into possession and control, to exercise reasonable care for the safety and property of others.

The reversal in Anderson for defects in instructions does not impair the basic holding outlined above. The defect appropriate to this consideration was the failure of the court to instruct the jury that the purchaser was not liable for negligence in the construction of the dam unless she knew, or in the exercise of ordinary care should have known, of the defective construction. This is consistent with the Restatement rule.

These cases are based upon a sound and reasonable rationale, and are appropriate recognition of the duty of a landowner not to use his property so as to unnecessarily or unreasonably damage his neighbor.

Appellees rely principally upon Dover v. Georgia Power Company, 46 Ga. App. 630, 168 S.E. 117 (1933), cert. den. by Georgia Supreme Court, but it is not as contrary to the New Hampshire and Montana cases as it might appear to be. As a matter of fact, it is cited as authority in Anderson. The opinion is per curiam and the court states that not all the evidence was set out, but held that the question of the dam owner’s liability for negligence under all the surrounding circumstances should have been submitted to the jury. The holding that an alienee was not responsible for defective construction of the dam unless it had notice (not knowledge) of any defects was accompanied by these remarks:

* * * If it did not have notice of the defects in the construction, its duty was only to maintain the dam without negligence on its part. Negligence must be shown in order to recover in this action, and negligence is a failure to exercise due care; and due care in this case is such care as the party erecting, maintaining, or operating the dam is bound to use, and is in proportion to the extent of the injury which would be likely to result to third persons, provided the dam should prove insufficient and be swept away. Such a measure of prudence is required in such cases as a discreet person would use if the whole risk were his own. The general rule is that it is not enough that the dam is sufficient to resist ordinary floods. Great freshets must be guarded against, if the stream is occasionally subject to them. City of New York v. Bailey, 2 Denio, 433. But, if the dam is washed away by a phenomenal or extraordinary flood, such as no one would reasonably have anticipated, its owner is not liable for resulting damages (40 Cyc. 683m, subsec. C), provided no act of negligence of the defendant was the proximate cause of the break. See Parrish v. Parrish, 21 Ga. App. 275, 276 (1), 94 S.E. 315.

The dam in question there was acquired by a power company, but there was no evidence that a power plant, apparently for which the dam was built, had been operated by the power company after its purchase. This holding is actually consistent with the Restatement rule.

The evidence tends to show that the inadequacy of the spillway was obvious to a casual observer. The question whether reasonable care under the circumstances required an expert inspection of the dam and spillway was for the jury on the evidence presented, particularly in view of Burdick’s expression of concern about the danger. The question of notice was also proper for consideration by the jury. Consent may be a jury question. Furthermore, there was some evidence that the dam and spillway were not properly maintained. Appellants argue that there was no evidence that the spillway, if defective, caused the break in the dam. They overlook Dr. Grubbs’s opinion that the overtopping of the dam resulted, at least in part, from the gross inadequacy of the spillway. The weight to be given that expert opinion was for the jury’s determination.

As previously indicated, appellees owed a duty of care to appellants. There was evidence that the injury was caused by an instrumentality under the exclusive control of appellees. Certainly, it is reasonable to say that, in the ordinary course of things, the dam would not have broken if those in control had used ordinary care. There is no evidence that any act or negligence of appellants constituted a proximate cause of their injury. Under these circumstances and in the absence of evidence to the contrary, the doctrine of res ipsa loquitur applies. Fibber’s Paint & Body Shop v. Reed, 252 Ark. 1016, 482 S.W. 2d 832; Dollins v. Hartford Accident & Indemnity Co., 252 Ark. 13, 477 S.W. 2d 179. It has been applied in analogous situations many times in cases too numerous to cite. 2 Speiser, Res Ipsa Loquitur, 490, § 31.5; Annot. 169 A.L.R. 529 (1947); Annot. 11 A.L.R. 2d 1192 (1950); 78 Am. Jur. 2d 666, Waters § 220.

Appellee argues that res ipsa loquitur cannot be applied because the damage was actually caused by an act of God, an unprecedented amount of rainfall, saying that there was ample evidence that the act of God was an important if not the sole cause of the injuries to the Dyes. We do not agree that the evidence showed that this rainfall was the sole cause, even if we assume that the rainfall was such an unprecedented one that it would otherwise relieve appellees of any duty to appellants. This is a matter of defense, however, which requires that appellees show that the act of God was the sole proximate cause of the damage to appellants, and that no negligence on the part, of appellees contributed to the cause in any way. Manila School District No. 15 v. Sanders, 226 Ark. 270, 289 S.W. 2d 529. See also Annot. 169 A.L.R. 533 (1947). Where an act of God is the cause of an injury, but an act or omission of a defendant so mingles with it as to also be an efficient and cooperating cause, the defendant is liable. Lee v. Crittenden County, 216 Ark. 480, 226 S.W. 2d 79. These rules have been applied to an analogous case. Mitchell v. Hahn, 131 Ark. 286, 198 S.W. 528.

We recognize that there are jurisdictions in which the doctrine of absolute or strict liability would be applied to a case such as this, upon the theory espoused in Rylands v. Fletcher, LR 1 Ex. Ch. 265, 1 Eng. Rul. Gas. 236 (1866), afmd. LR 3 HL 330, 1 Eng. Rule. Cas. 256 (1868). There are numerous jurisdictions (a majority that might be called overwhelming) that reject it. See Annot. 169 A.L.R. 523 (1947).

Rylands v. Fletcher has found neither ready nor total acceptance in Arkansas. See North Little Rock Transportation Co. v. Finkbeiner, 243 Ark. 596, 420 S.W. 2d 874. It is at least doubtful that it would be applied to these facts even in England. See Prosser, Law of Torts (4th Ed.), 506, § 78; North Little Rock Transportation Co. v. Finkbeiner, supra. The rule against strict liability in this situation is more consonant with Arkansas law. See Arkansas Power & Light Co. v. Orr, 175 Ark. 246, 298 S.W. 1029; North Little Rock Transportation Co. v. Finkbeiner, supra. Strict liability would make the owner of a dam an insurer against all damages. Fleming v. Lockwood, 36 Mont. 384, 92 P. 962 (1907); Anderson v. Rucker Bros., 107 Wash. 595, 183 P. 70, 186 P. 293, 8 A.L.R. 544 (1919).

One reason often given for rejection of strict liability is the burden that would be placed upon a legitimate activity which is in the interest of utilization and development of natural resources and the state’s economy, such as advancement of agriculture. Barnum v. Handschiegel, 103 Neb. 594, 173 N.W. 593 (1919). It has been rejected, properly we think, where the waters of a natural watercourse have been impounded by the erection and maintenance of a dam by a riparian owner in a natural watercourse for a proper natural use either public or private; with full recognition of the applicability of the rule of strict liability where the waters have been brought on the defendant’s premises, where they did not belong, into an artificial reservoir so located as to constitute a menace to the safety of persons and property. City Water Power Co. v. City of Fergus Falls, 113 Minn. 33, 128 N. W. 817, LRA (ns) 59, Ann. Cas. 1912 A 108 (1910); Barnum v. Handschiegel, supra. See also, Prosser, Law of Torts, 507, 511 § 78. Dean Prosser has commented significantly on judicial consideration of the application of the rule. Some of his comments are:

The place where all this occurs, the customs of the community, and the natural fitness or adaption of the premises for the purpose, all are highly important in determining whether the rule applies. * * *
* * * The conclusion is, in short, that the American decisions, like the English ones, have applied the principle of Rylands v. Fletcher only to the thing out of place, the abnormally dangerous condition or activity which is not a “natural” one where it is.

The extent to which Rylands v. Fletcher has been applied in Arkansas is limited to Restatement of the Law, Torts §§519, 520. See North Little Rock Transportation Co. v. Finkbeiner, supra. The maintenance and use of a dam across a natural watercourse is not the type of ultra-hazardous activity defined by those sections. See Comment C, §520. Any risk of serious harm could be eliminated by the exercise of the utmost care, even if the pond or lake is not considered a matter of common usage. Although the pertinent sections have been revised, they should not be applied here if we should adopt them. The care required for elimination of an activity from the “abnormally danger-us” category is reasonable care; but the exercise of reasonable care could have eliminated the risk here. Furthermore, the activity was not inappropriate to the place it was carried on and the activity has some value to the community.

We find the rule of strict liability inapplicable.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

1 Iarris, C.J., and Hickman, J., concur in part, dissent in part.

Carretón Harris, Chief Justice,

concurring in part, dissenting in part. I agree with the Court, because of the testimony of Edward C. Grubbs, consulting engineer, that there was a jury question relative to whether the dam had been improperly designed and negligently constructed (the witness stated that the spillway as designed was completely inadequate to carry the water), and also whether the dam had been properly maintained, the evidence of Grubbs reflecting that growing trees, grass, rock, and debris were allowed to accumulate in the spillway. But I very much disagree with the majority that this is a case which should have veen allowed to also go to the jury on the doctrine of res ipsa loquitur.

In the first place, I am firmly of the opinion that dams can break or collapse without negligence on the part of anyone, and this condition can be caused by excessive rainfall, earthquakes, etc. The record reflects that from June 6th through June 9th, in the area, there had been over nine inches of rain, and on the 8th and 9th there was considerable flooding in the area, creeks leaving their boundaries, and bridges and roads being washed out. In fact, the Benton County area was declared a disaster area by the President of the United States due to this flood. For res ipsa to apply, it must be shown that the injury or damage was caused by something under the exclusive control of appellees at the time of the occurrence. Certainly, no one would contend that appellees controlled the weather or the rainfall, and since I consider this to be, at least, a major reason for the damage sustained, I cannot see how the doctrine of res ipsa enters into the picture. This is not my view alone, for the Supreme Court of Iowa in Eaves v. Ottumwa, 38 N.W. 2d 761, used the same logic. There, a raceway leading from a river to defendant’s hydroelectric plant overflowed in a time of flood. The opening of the flood gates, which kept the level of the water in the raceway at that of the river, would have increased its carrying capacity, but these gates were not opened until hours after this could have been done. In its discussion, the Court said:

“Here the physical cause of plaintiff’s damage was overflow from the race. Defendant’s answer admits the race, hydroelectric plant and gates were under its exclusive control and management although it denies the res ipsa doctrine is applicable. Although defendant was in exclusive control of the race and gates, it cannot fairly be said the flood water flowing into the race from the river was exclusively under defendant’s control and management. Such flood water is one of the instrumentalities that caused the damage.
Our decisions involving the res ipsa rule have uniformly stressed the necessity of defendant’s complete and exclusive control of the instrumentalities that cause the injury. (Citing cases.)
Further, we think it may not fairly be said that in the ordinary course of things or, as frequently stated, according to common experience, water does not overflow the banks of such a race where those in control of the race exercise reasonable care. Evidence which may show negligence in this particular case is not to be considered in determining this question.
Certainly it is common experience for natural water courses to overflow their banks in time of heavy rains without lack of care by any human agency. Flooding of lowlands along swollen streams in wet seasons is common. It appears here the Des Moines River overflowed its banks and flooded other portions of Ottumwa at this particular time. Turkey Island and territory on all sides of it were under water. The dams were scarcely visible. That the water which caused the damage here escaped from an artificial channel that carries water from the river rather than from the river itself seems insufficient basis for an inference the occurrence was the result of negligence.”

The doctrine of res ipsa loquitur is strongly predicated on two premises; first, that the damage would not have occurred unless somebody was negligent, and second, that the person allegedly causing the damage had exclusive control of the instrument, meaning that he had information concerning its functions that other people would not have. For instance, the res ipsa loquitur doctrine is generally applied in “soft drink” cases, where it is alleged that foreign matter in the drink consumed caused injury. Of course, the average person knows nothing about the procedure of manufacturing soft drinks, but more than that, the injured party is not in a position to establish negligence after the bottle has exploded and pertinent evidence has thus vanished. This leaves only the defendant with any exact knowledge of the cause of the mishap. Yet, we can certainly say that flies, spiders, or other foreign objects do not get into a bottled soft drink unless somebody was negligent. That is certainly a far cry from the case presently before us! As stated in Eaves v. Ottumwa, supra:

“The underlying reason for the res ipsa rule or, as Dean Wigmore expresses it, ‘the particular force and justice’ thereof, is ‘that the chief evidence of the true cause ... is practically accessible to him (defendant) but inaccessible to the injured person.’ (Citing authorities.)
It does not appear that the chief evidence of the cause of the overflow from the race was accessible to defendant but inaccessible to plaintiffs. Apparently such evidence was equally accessible to plaintiffs as to defendant. The underlying reason for the application of the res ipsa rule is therefore not here present.”

Here, it is obvious that appellants were not precluded, after the dam washed out, from offering evidence of specific acts of negligence; in fact, they did do so, and the reversal on Points I and II is based on that evidence. Accordingly, I cannot see where res ipsa has any place in this case at all, and therefore respectfully dissent to this portion of the opinion.

Hickman, J., joins in this concurrence and dissent.

       Appellants’ failure to act earlier or to call the defect to the attention of appellees is relevant to the question of consent, but it is not negligence or voluntary action which is to be considered as negligence as a contributing cause. See Hollenbeck v. Dingwell, 16 Mont. 335, 40 P. 863 (1895).

       M also agree with the majority on Point IV that this is not a proper case for the application of strict liability.


text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Jack FIELDS, Individually and as Father and Next Friend of Karen FIELDS, A Minor
    77-67
    553 S.W. 2d 278
    Opinion delivered July 18, 1977
    (In Banc)

      Laser, Sharp, Haley, Young & Boswell, for appellant.

      Felver A. Rowell, Jr., and Charles H. Eddy, for appellee.
   John A. Fogleman, Justice.

Southern Farm Bureau Casualty Company appeals from a judgment holding it liable for injuries suffered by Karen Fields, a school girl, who was transported to and from the Plummerville Elementary School by a school bus owned by the school district and operated by one of its employees. On September 19, 1972, Karen was taken home from school on this bus. The driver stopped it on Highway 64 in front of her home, but on the opposite side of the highway. She got off the bus, walked in front of it and after she had entered the opposite traffic lane of the two-lane highway was struck by an automobile driven by an uninsured motorist. It is conceded that his negligence was the proximate cause of her injuries. The insurance company defended a direct action against it by appellee, individually and as next friend of Karen, on the ground that Karen was not covered by their policy of uninsured motorist insurance issued to the school district. The sole contention of appellant is that the trial court erred in denying its motion for a directed verdict. We agree with appellant and disagree with the trial court.

The testimony showed that Karen had departed from the bus, passed in front of it and had reached a position near the middle of the opposite traffic lane, when struck. She was six to eight feet from the part of the bus nearest her at the time.

Appellant’s contention was based upon coverage provisions of the policy. The pertinent provisions are:

II. Definitions
(a) Insured. The unqualified word “Insured” means
(1) The first Named Insured as stated in the policy and while residents of the same household, his spouse and relative of either:
(2) any other person while occupying an insured automobile with permission of the named insured or spouse.
(e) Occupying. The word occupying means in or upon entering into or alighting from but having physical contact with an insured vehicle.

The burden was on appellee to show that Karen was an insured within the coverage of the policy. Peoples Protective Life Ins. v. Smith, 257 Ark. 76, 514 S.W. 2d 400. Unless plain words have lost their meaning she failed to do so. By no stretch of the imagination can it be said that Karen was in physical contact with the school bus when she was struck.

Appellee argues that appellant waived the provision of the policy defining the word “occupying” by failure to plead it. This would be true if the provision was one necessary to an affirmative defense, as would be the case if it constituted an exception or exemption clause. Universal Life Ins. Co. v. Howlett, 240 Ark. 458, 400 S.W. 2d 294; American Life & Annuity v. Dancer, 240 Ark. 128, 398 S.W. 2d 529. But this is not an exception or exemption clause. It is part of the clause defining coverage and appellant was not required to plead a policy definition of a word in that clause. Appellant did plead that Karen Fields was not occupying an insured automobile and, therefore, was not insured under the policy. This allegation put appellee to his proof of appellant’s liability. Stucker v. Hartford Accident & Indemnity Company, 220 Ark. 475, 248 S.W. 2d 383.

Cases relied upon by appellant to bring Karen within the terms of the policy as an insured are not applicable when we apply the plain, unequivocal, unambiguous definition of the word “occupying” given in the policy. In none of those cases are the words “but having physical contact with” included in the description of those insured. It appears likely that those words were included in the definition of “insured” in this policy in order to avoid the application of those very cases.

Appellee also argues that the requirement of physical contact is an impermissible restriction on coverage, relying on Soule v. Stuyvesant Insurance Company, 364 A. 2d 883 (N.H., 1976). This case, however, eliminated the requirement of physical contact with the vehicle driven by the uninsured motorist as contrary to the New Hampshire uninsured motorist act.

Appellee asserts that requiring physical contact with the insured automobile violates the requirements of Ark. Stat. Ann. § 66-4003 (Repl. 1966), our uninsured motorist act. We do not so read the statute. It requires coverage for “persons insured thereunder.” It does not identify the “persons insured” under an insurance policy covering liability arising out of the ownership, maintenance or use of the motor vehicle covered so as to include any passenger or occupant. The parties are free to contract as to the “persons insured,” insofar as passengers are concerned. There is no showing that Karen was an insured under the policy.

We have not overlooked appellee’s argument that Karen Fields had sufficient contact with the bus because its driver had the obligation, under his contract with the school district, to see that she was safely across the road before proceeding on his route, pointing out that at the time Karen was struck, the school bus was still standing with its lights flashing. The physical contact contemplated, however, is contact with the vehicle, not the school district. This argument might be applicable in a suit against the driver. Those facts did not make Karen an insured under the policy.

The judgment is reversed and the cause dismissed.

Byrd, J., dissents.