author: J. Fred Jones, Justice.

text:
    Clara Mae Carter, et al v. Ward Body Works, Inc.
    5-4862
    439 S.W. 2d 286
    Opinion Delivered April 1, 1969
    [Rehearing denied May 5, 1969.]

      Alonso D. Camp for appellants.

      Terral, Rawlings, Matthews & Purtle for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case involving two consolidated claims for death benefits brought by the widows of the two decedents. The question before the Commission was whether the decedents were in the course of their employment as employees of Ward Body Works at the time of their injuries and resulting deaths. The question before us on appeal is whether there was any substantial evidence to sustain the findings and orders of the Commission.

The Workmen’s Compensation Commission found that the decedents were independent contractors and denied the widows’ claims for compensation death benefits on that basis. On appeal to the circuit court the findings and orders of the Commission were affirmed. The widows of the decedents have appealed to this court and designate the following points for reversal:

“That Mr. Sallis and Mr. Carter were employees of Ward Body Works at the time of their deaths, and not independent contractors.
Death of the two men arose out of and in the course of their employment, and the Commission’s decision otherwise is not supported by substantial evidence.”

The decedents, Richard Sallis and Milton Carter, along with two vacationing Arkansas State Policemen, entered into verbal arrangements with Ward Body Works at Conway, Arkansas, to deliver four new buses to purchasers in and near Los Angeles, California. Each individual was to drive a bus and the drivers were paid in advance 14 cents per mile for driving the buses to California. They were to be reimbursed the actual cost of gas and oil and any other actual expenses on the buses in transporting them to California. Upon delivery of the buses to the consignees in California, they were to obtain receipts which were to be returned to Ward along with their receipts for gas and oil and any breakdown repairs, or other bus expenses incurred on the trip. After delivery of the buses in California, the drivers were on their own and under no direction or control whatever by Ward.

All four drivers, including the decedents, left Conway on October 9, 1967, and each drove a bus to California, reaching their destination and delivering the buses on October 12, 1967. After delivering the buses in California, the decedents went by plane from Los Angeles to San Francisco where they both visited with Mr. Sallis’ son for a couple of days. By prior arrangement the son had purchased a Renault automobile for Mr. Sallis aud both decedents were on their way back to Arkansas from San Francisco when they both died as a result of injuries sustained in an automobile accident near Seligman, Arizona.

The question before us on appeal is whether there was any substantial evidence to sustain the Commission and the circuit court in holding that the decedents were independent contractors and not employees of Ward.

The usual test in distinguishing an ¡employee from an independent contractor is set out in Ozan Lumber Co. v. Tidwell, 210 Ark. 942, 198 S.W. 2d 182, as follows:

“It has been said in many cases that the vital test in determining whether a person employed to do certain work is an independent contractor, or a mere servant, is the control over the work which is reserved by the employer. Broadly stated the rule is that, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor.”

Quoting from 31 C.J. 473, 474, in the Tidwell case, this court continued:

“It is impossible to lay down a rule by which the status of men working and contracting together can be definitely defined in all cases as employees or independant contractors. Each case must depend on its own facts, and ordinarily no one feature of the relation is determinative, but all must be considered together. Ordinarily the question is one of fact.”
In 99 C.J.S., § 92 is found the following:
“In determining whether a person doing work for another is an employee, within a compensation act, or an independent contractor, although the actual exercise of control is a factor to be considered, the significant or ultimate question is not whether the party for whom the work is being done actually exercises control over the worker, the work, or the manner or method of doing it, or actually directs, instructs, or supervises, but the real question is whether such party has the right, or power, to control, direct, or supervise.
Actual interference by the employer with the work or control is not the test, nor is actual regulation of the details of the work, or the giving of instructions; it is the right to interfere that determines.”

In the case of Moaten v. Columbia Cotton Oil Co., 193 Ark. 97, 97 S.W. 2d 629, this court said:

“This court held, in the case of Moore Lumber Co. v. Starreti, 170 Ark. 92, 279 S.W. 4, that the vital test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved "by the employer. Stated as a general proposition, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor. An independent contractor is one who, exercising an independent employment, contracts to do a certain piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work.”

In the case of Moore and Chicago Mill & Limber Co. v. Phillips, 197 Ark. 131, 120 S.W. 2d 722, holding logging contractors to be independent contractors, this court said:

“By a long line of decisions this court is committed to the universal rule that, where the contractor is to produce a certain result, according to specific and definite contractual directions, agreed upon and made a part of the contract, and the duty of the contractor is to produce the net result by means and methods of his own choice, and the owner is not concerned with the physical conduct of either the contractor or his employees, then the contract does not create the relation of master and servant. This court has consistently accepted and stated the settled rule that oven though control and direction be retained by the owner, the relation of master and servant is not thereby created unless such control and direction relate to the physical conduct of the contractor in the performance of the work with respect to the details thereof. St. Louis, I.M.&S. Ry. Co. v. Gillihan, 77 Ark. 551, 92 S.W. 793; Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S.W. 4.”

The arrangements made between Ward and the decedents are evidenced by the following testimony. Mr. Coy McCaskill, transportation manager of Ward, testified as follows:

“Q. Were you contacted... by a Mr. Sallis with reference to driving a bus to California.. .1
A. ... [H]e came up there about October the 7th about two days before they went to California. Said he had a son in California and if we had some buses—
# # #
He said he had a son that lived in California and if we had some buses going out there, he’d like to deliver one and visit him a few days.
1 told him, I said, ‘Yeah, you can stay as long as you want to if we have some more going in the next short time, why, we’ll notify you.’ And I said ‘After you get the bus delivered, why, you’re on your own and you can stay as long as you want to stay.’
... Mr. Sallis came up with those two State Troopers and I had an extra bus going and he called Mr. Carter back from Little Bock... he was to come on up to [sic] Little Bock and carry the fourth bus.”

An employee of the Arkansas State Police Department, Bichard Howard, was the driver of one of the four buses and testified as follows:

“Q. .. .what were you to do with the papers that you were given [with the bus] ?
A. ... we were to get them signed and bring one of them back to the Ward Body Works in Conway.
Q. ... was there any work which you were to perform at Ward Body Works after you returned back from California?
A. No,... I was doing this on my vacation.
Q. Did Ward... give you any instruction about what time the bus was to be delivered in California?
A. No...
Q. Did they tell you what highways to travel?
A. They suggested what highways we should travel, because we did ask them what route would be the best out there.
Q. Did they give you any certain speeds to drive at?
A. Well, the buses were governed, I believe, at sixty miles an hour.
Q. ... Did they tell you where you were to stop along the way?
A. No...
Q. Did they tell you where you should eat?
A. No...
Q. Were you reimbursed for any food expenses or lodging expenses on the way out there, or on the way back?
A. No...
Q. Did Ward Body Works give you any instructions about what to do after the bus was delivered in San Diego?
A. No...
Q. Did they tell you when to return to Arkansas?
A. No...
Q. Did they tell you how to return to Arkansas?
A. No...
* * *
Q. And how did you return to Arkansas?
A. On the Continental Trailway bus.
Q. And when did you arrive in Little Rock?
A. ... on the 14th ...
Q. When were you reimbursed?
A. ... I believe it was almost a week before I went up there because I met my wife and we left to finish my vacation out.
# * #
Q. Did you deliver any papers to the Ward Body Works at that time with reference to your'trip?
A. ... my gasoline and oil receipts and then a form they had sent out there for me to have signed . .. and return to them. ’ ’

The record in the case at bar indicates that the decedents were regularly employed by a screen door company in North Little Rock prior to making the trip to California. Mr. Sallis had his former employer wire $75.00 to him in San Francisco before starting* on his return trip to Arkansas. The record is not clear as to the’ decedents’ exact employment status when they agreed to drive the buses to California, but the record is clear that they had not worked for Ward at any time prior to this one trip and that no future work for Ward ivas contemplated. The record is also clear that the decedents were employed to deliver the buses to consignee in California and that Ward was only interested in, and concerned with, the results.

It is true that the decedents were required to return to Ward, the receipted copy of invoices for the buses delivered, but this was permitted to be done by mail and personal delivery was not required. We conclude that there was substantial evidence that the decedents. were independent contractors and not employees of Ward at the time of their injuries and resulting deaths. Even if the decedents had been employees of Ward within the meaning, of the Workmen’s Compensation Law, they had gone to San Francisco on personal missions of their own and had not returned within the course of their employment when the accident occurred. The judgment of the circuit court must be affirmed. •

Affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Calvin Lynn Knighton, et al v. International Paper Co., et al
    5-4842
    438 S.W. 2d 721
    Opinion Delivered April 1, 1969

      Bernard Whetstone and Chambers & Chambers for appellant.

      Graham, barney, Barnes & Roberts for appellee (Int. Paper Co.).

      Smith, Williams, Friday & Botven bjr William H. Sutton for appellee (Ward).
   Conley Byrd, Justice.

This appeal by Calvin Lynn Knighton and Calvin S. Knighton and Lloyd E. Nix individually and as father of Jan Nix, a minor, questions the ruling of the trial court upon the summary judgment dismissing appellees E. E. Ward and International Paper Co. as parties defendant from the lawsuit. The injuries herein complained of were sustained about 7:30 P.M. Friday, January 28, 1966, on Highway 82 just west of Stamps, Arkansas. The allegations are that a pulpwood producer, Claud King, negligently parked his unlighted vehicle on the paved portion of the highway in such manner that it was struck from the rear by the Knighton automobile in which Jan Nix was a passenger. Appellees E. E. Ward and International Paper Co. were made parties defendant along with Claud King on the theory that King was an agent and servant of E. E. Ward and International Paper Company. King is not not a party to the appeal, the cause not having been dismissed as to him.

Appellants list three points for reversal. These points have to do with the burden of proof when the defense of independent contractor is pled, the existence of non-ownership liability or workmen’s compensation insurance policies on the status of an alleged independent contractor, and error of the court in granting summary judgment. Since we find that the trial court was correct in rendering summary judgment upon the basis that Claud King, even if he were an employee, was not within the scope of his employment, we do not reach the other arguments listed by appellant.

The record shows that appellee International Paper Co. is engaged in the manufacture of wood products which necessitates its procuring vast amounts of pulpwood. To accomplish this, International has numerous stations in a network of towns staffed by its own salaried employees who receive pulpwood hauled to them by persons such as Claud King. To procure the pulpwood in the species and quantity desired, International issues a purchase order to persons such as it. E. Ward, whom International describes as wood dealers (described by Ward as “wood shipper” and described by appellants as “procurement officer”). The persons in appellee Ward’s position in turn notify the wood producers, such as Claud King, of the species and quantity desired. The producers in turn either cut the pulpwood from timber purchased by the wood shipper or, as in this instance, make their own arrangements with a landowner to cut pulpwood.

Claud King testified in the ease at bar that he had made arrangements with Doyce Byrd to cut pulpwood on Byrd’s land. On the day before, his truck had reached International’s wood yard too late to be unloaded. He had parked the truck and left it over night. On the day of the accident King drove his personal automobile from his home to International’s yard, unloaded his truck and returned to the woods where he cut and hauled to International’s pulpwood yard a load of pulpwood. His truck was unloaded at 2:30 P.M. At that time International issued him a slip of paper showing the amount and species of wood hauled, which he took to Ward’s office, at a location away from the yard, to receive his pay. At King’s direction Ward made one check to him and another check to Doyce Byrd for the amount that King had agreed to pay Byrd. King’s testimony as to his intention thereafter is set out in appellants’ abstract as follows:

“On the afternoon of the collision I wasn’t planning to do anything after I left Stamps and before my vehicle broke down. I didn’t plan to go back to Byrd’s. I usually give him his check at the end of the week.. On that particular day I wasn’t going to take the check to him because I was trying to get home out of the snow and rain. If I had seen him I would have given him the check. I did not plan making a special trip to carry it to him that day. I had no arrangement about when I was going to deliver it to him.”

The time from 2:30 until 7:30 is accounted for by trouble King was having with his truck. The truck was pulled into a shop by wrecker sometime around 6:00. After some work on the truck, King started home but again parked the truck because of mechanical difficulties. It was after this that the accident occurred.

In addition to King’s testimony that the truck belonged to him, appellants, in answer to a request for admissions, admitted that King was paid on a unit basis for the pulpwood cut and hauled by him and admitted that King started home at 2:30 on the date of the accident and that his truck stalled a few miles west of Stamps.

It is the general rule that an employee traveling from his place of work to his home or other personal destination after completing his day’s work cannot ordinarily be regarded as acting in the scope of his employment so as to charge the employer for the employee’s negligence in the operation of his own vehicle. We recognized this rule in Frank Lyon Company v. Oats, 225 Ark. 682, 284 S.W. 2d 637 (1955), and noted four of the exceptions to the rule. To avoid the application of this rule appellants, rely upon Phillips Cooperative Gin Co. v. Toll, 228 Ark. 891, 311 S.W. 2d 171 (1958), and contend that King’s testimony that he was not on his way to take the check to Byrd cannot he regarded as undisputed or uncontradicted since King is a party to the law suit.

Tt is true that in many of our cases can be found statements to the effect that the testimony of a party never stands uncontradicted. A review of our cases however, shows that we have not literally applied the statement but that in fact we have followed what is known as the more flexible view — i.e., where the uncontradicted testimony of an interested witness is unaffected by any conflicting inferences to be drawn from it and is not improbable, extraordinary, or surprising in its nature, or there is no other ground for hesitating to accept it as a truth, there is no reason for denying the finding of veritv dictated by such evidence. See Kansas City Southern R. Co. v. Lewis, 80 Ark. 396, 97 S.W. 56 (1906), and Jolley v. Meek, 185 Ark. 393, 47 S.W. 2d 43 (1932). Of course in this instance, in addition to the testimony of King, there is the outright admission of appellants that King had started home at 2:30 on the date of the accident and that his truck stalled a few miles west of Stamps. Consequently we find no fact issue to be submitted to the jury as to whether King had a duty to perform for his employer while enroute to his home and appellants were not entitled to go to the jury on this exception to the general rule.

Neither do we find anything in Phillips Cooperative Gin Co. v. Toll, supra, contrary to the general rule. There W. T. Jackson was not driving his own vehicle but the vehicle of his father who was also the president of the board of directors of the gin company and the check allegedly due him for hauling was made out to the manager of the gin company and bore only the notation “W. T. Jackson Trucking”. The check was endorsed by the manager and never received by Jackson. Furthermore, there the only issue was whether Jackson was an independent contractor. The issue of the scope of employment was not raised.

As we view the record here it shows that Claud King, working on a unit basis, had delivered the fruits of his labor to the pulpwood yard, received his pay and was on his way home in his own vehicle. The only conclusion we can draw from this testimony is that when King drew his pay and started home in his own vehicle, lie was no longer under the control of any alleged employer. Consequently we find the trial court properly held that King was not in the scope of his employment at the time of the collision.

We wish to make it clear that we have only assumed that he was an employee and that the issue of whether he was or was not an employee has not been adjudicated.

Affirmed.


author: Frank Holt, Justice.

text:
    Larry Kilbury v. Clyde McConnell
    5-4839
    438 S.W. 2d 692
    Opinion Delivered April 1, 1969

      Lesly TP. Mattingly for appellant.

      Wright, lAndsey & Jennings for appellee.
   Frank Holt, Justice.

Tliis is an action by a tenant against bis landlord to recover damages for personal injuries. The tenant, who is the appellant, slipped and fell when he stepped on some ice at the bottom of an outside stairway. Appellant’s complaint asserts that appellee, the landlord, was negligent in that the apjjellee failed to correct an unsafe condition which he knew to exist, or would have known to exist in the exercise of reasonable care. After appellant presented his evidence and rested his case, the court directed a verdict in favor of the appellee. This appeal comes from the judgment based on the directed verdict.

For reversal the appellant contends that the trial court erred in granting appellee’s motion for a directed verdict on the basis that the appellee (landlord) had no duty to the appellant (tenant) to remove a natural accumulation of ice and snow from a common stairway or passageway.

The appellee’s two-story apartment building consists of eight apartments, with four units on the ground level and four units on the second floor. The sole means of ingress and egress from appellant’s second-floor apartment was a common stairway in the middle of the building from the second floor down to the main landing where the stairway splits to the left and right into separate stairways. The incident occurred in February of 1966. On the day before the accident there was a heavy snowfall, however, it seems it had not snowed on the day-appellant slipped and fell. At approximately 8 p.m. appellant, accompanied by a friend, proceeded down the first flight of stairs to the main landing. The stairway oil the right, which appellant had traversed on three separate occasions following the snowfall, appeared to have retained the most snow on it so appellant decided to try the stairway on the left. According to appellant, as he stepped from the bottom step onto the landing he slipped on some ice causing him to fall which resulted in injuries to his neck, back and right elbow. Appellant testified that he descended the stairway very cautiously. Appellant’s version of the conditions and the cause of the accident was corroborated by the friend who was accompanying him. Appellant made no effort to remove the natural accumulation of snow and ice, nor did he acquaint the appellee with the existence of this temporary hazard. In fact, appellee was first notified of the accident in July of 3966.

It is the contention of appellant that his landlord, the appellee, had a duty to remove the natural accumulation of snow and ice from the stairway which was for the common use of all the tenants and, this being true, there was substantial evidence, when viewed most favorably to the appellant, to make a jury question of negligence and constructive notice of the hazardous condition.

The courts which have considered the issue in the case at bar are divided. One line of authorities supports what is known as the Massachusetts rule which holds that a landlord is under no obligation to remove a natural accumulation of ice and snow from common passageways or areas retained in the landlord’s control for the common use of his tenants. Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am. Rep. 344 (3883), and reiterated in Spack v. Longwood Apartments, Inc. 338 Mass. 518, 155 N.E. 2d 873 (1959). The reasoning is that there is no duty on the part of the landlord to tlie tenant to remove a temporary hazard such as ice and snow from common passageways. This common law, or Massachusetts rule, is based upon the premise that a duty to remove snow and ice from common passageways would subject the landlord to an unreasonable burden of vigilance and care and a landlord should not be responsible for such temporary natural hazards as the expected acts of nature over which he has no control and It would be unreasonable to require the landlord to be subjected to the duty of keeping a janitor on the premises at all times merely to insure the immediate removal of snow and ice.

The appellant ably and forcefully argues that we should adopt the Connecticut rule which he contends is the more modern and enlightened approach to this issue. Many courts have found favor with this rule which imposes, upon the landlord the duty to exercise reasonable (‘are with respect to keeping the premises free from accumulations of ice and snow. This duty of reasonable c-are is imposed upon the landlord where he had notice, actual or constructive, of such a temporary hazard and reasonable opportunity to correct it. Reardon v. Shinudmau, 102 Conn. 383, 128 A. 705, 39 A.L.R. 287 (1925). The Massachusetts rule is expressly rejected by this case. See, also, Harper & James, Law of Torts, Vol. 2, § 27.17; Prosser, Law of Torts (2d Ed.) § 80; 32 Am. Jur., Landlord & Tenant, § 696.

In the recent case of Pomfret v. Fletcher, 208 A. 2d 743 (1965) the Supreme Court of Rhode Island considered the general or common law rule and the Connecticut rule and stated:

“After consideration of the authorities on both sides of the question, we are of the opinion that the Massachusetts rule [common law rule] is preferable to the contrary rule in certain other jurisdictions regardless of numerical weight. We realize that it has met with sharp criticism in Reardon v. Shi melman, 102 Conn. 383, 128 A. 705, 39 A.L.R. 287, and United Shoe Machinery Corp. v. Paine, 1 Cir., 26 F. 2d 594, but we are not persuaded that such criticism lias destroyed or seriously impaired the reasoning upon which the Massachusetts cases rest. ’ ’

See, also, Burkin v. Lewitz, 3 Ill. App. 2d 481, 123 N.E. 2d 151 (1954); 25 A.L.R. 2d 367, 446; 26 A.L.R. 2d 613; 25 A.L.R. 1301.

We have had occasion to consider the duty that a landlord owes to his lessee to keep the common passageway properly lighted on the premises. Joseph v. Riffel, 186 Ark. 418, 53 S.W. 2d 987 (1932). There a tenant sought to recover for damages suffered when he fell down an elevator shaft from an unlighted corridor. It was urged that this was a contributing factor to the tenant’s injuries. We said:

“As between a landlord and tenant, the general rule is that, ‘in the absence of statute or agreement, the landlord is under no legal obligation to light common passageways for the benefit of tenants.’ 36 C.J., § 891, p. 214. In § 893 of the same work, it is stated: ‘On the analogy of a lack of duty on the part of the landlord to light common passageways, it lias been held that a landlord is not liable for injuries received by a tenant through the failure of the landlord to supply rails or guards when the condition was the same at the time of the letting.’ ”

The appellant forcefully argues that we should now reject the import of this case and subscribe to the Connecticut view. Having previously held that a landlord is not obligated to light that portion of the premises reserved for common use, we cannot say that a landlord owes the duty to remove such temporary hazards as a natural accumulation of ice and snow from a common stairway. Such a distinction could not be supported by logic or reason. There is no evidence in the case at bar of any agreement or assumption of duty that removes the appellant from the general rule to which we are committed.

Affirmed.


author: "William S. Arnold, Special Justice. John A. Fogleman, Justice.

text:
    Frank Gordon, et al v. Russell H. Matson, Jr., et al
    5-4646
    439 S.W. 2d 627
    Opinion Delivered April 1, 1969
    [Rehearing denied May 12, 1969.]

      Travis Mathis and McMillan, McMillan & Turner for appellants.

      Wright, Lindsey & Jennings for appellees.
   "William S. Arnold, Special Justice.

This case comes on appeal from an order of the circuit court granting summary judgment to the appellee pursuant to a motion for summary judgment filed.

The complaint was filed in November 1965 and amended in March 1966. The original defendant, Mat-son, filed a general denial and the intervenor, Travelers Insurance Company, filed motion to make more definite and certain. •

The defendant responded to the intervention and propounded interrogatories to which Travelers responded. The plaintiff also propounded interrogatories to which responses were made and the defendant interrogated the plaintiff and the complaint was again amended, this last amendment setting forth certain specific allegations of alleged noncompliance by the defendant with provisions of Act No. 161 of 1937 and the Safety Code promulgated pursuant to the Act.

A pretrial order was entered by the trial court, which order found that certain facts were undisputed and set forth the claims of the parties and enumerated the legal issues and fact issues, this order being entered July 11, 1967.

Subsequent to entry of the pretrial order the defendant moved for a summary judgment and the plaintiff and intervenor responded denying that there was no genuine issue as to material fact. On September 21, 1967, the trial court entered its order granting the motion for summary judgment from which comes this appeal.

The undisputed facts, as found in the pretrial order, indicate that the defendant, Matson, contracted with Trustees of Henderson State College to construct a building and subcontracted to Cook & Sons (whose Workmen’s Compensation Carrier is the intervenor, Travelers) the masonry work and the plaintiff, Gordon, was an employee of Cook and injured in the scope of his employment on August 22, 1963, while engaged in removing materials in a buggy from the floor- of a portable hoist device known as a “lad-E-vator” owned, maintained, erected, positioned and operated by Cook. The exhibits include the prime contract to Matson and subcontract with Cook. The prime contract is in ATA standard form and contains provisions regarding compliance with safety codes. The subcontract obligates the subcontractor to discharge the provisions .of the prime contract as it relates to the work of the subcontractor.

The amended complaint alleges that the defendant, Matson, was obligated to provide to employees of Oook a safe place to work and to respond in damages if, as is alleged, there was noncompliance with the provisions of the Safely Code promulgated under Arkansas Statutes 81-101 on theory that responsibility ultimately rests on the prime contractor for assuring compliance with the (Ado by subcontractors in order to satisfy the obligation of the prime contractor to provide a safe place to work and further alleges that this responsibility included providing stationary platform, toe boards and guard rails and that these safety devices did not exist at the place of employment of the plaintiff and that his injuries resulted from their absence, or would not have occurred had they been present. Specifically it is also alleged that the space between the building under construction and the elevator hoist was spanned by a removable plvboard slab and the absence of a fixed, stationery platform at this construction level was the responsibility of the defendant, Matson, and that its absence caused or contributed to cause the injuries.

The undisputed facts as shown by the pretrial order are to the effect that the plaintiff, employee of the subcontractor, sustained injuries in a fall from the third floor level, that the space between the construction and the hoist was bridged by a plywood board and that the hoist had been located and was under the exclusive control of the subcontractor in its operation and had been provided by him. It is conceded that the prime contractor did not exercise any supervision or control of any of these activities by the subcontractor or his employees.

We arc therefore forced to the conclusion that unless the trial court has erred in its legal conclusion based upon the undisputed facts established by the pretrial order then the order granting summary judgment must be affirmed. Epps v. Remmel 237 Ark. 391, 373 S.W. 2d 141; Jones v. Comer, 237 Ark. 500, 374 S.W. 2d 465.

It appears to be the general rule that the responsibilities of the prime contractor to employees of the subcontractor on the job are comparable to the duties of the owner of the premises. This is a duty to exercise ordinary care and to warn in the event there are any unusually hazardous conditions existing which might affect the welfare of the employees. The recognized exception occurs if the prime contractor has undertaken to perform certain duties or activities and negligently fails to perform them thereafter or perform them in a negligent manner. Aluminum Ore Co. v. George, 208 Ark. 419 186 S.W. 2d 656.

Then unless the Legislative enactments, Arkansas Statutes Section 81-101 et seq or the contract with the? owner create liability to the plaintiff under the particular circumstances existing here it does not appear thaJ‘ there is liability on the part of the prime contractor.

Section 81-120 contains provisions for penalties resulting from violation of the Act or rules issued by the Commissioner of Labor and provides for recovery of these penalties in criminal proceedings or by a civil action brought in the name of the State. The Act being penal in nature should be strictly construed. The Act contains no language indicating any intent on the part of the Legislature to alter the existing law with respect to division of duties and responsibilities between prime and subcontractors and we therefore conclude that Section 81-101 does not arbitrarily place responsibility for compliance upon the prime contractor.

We find no basis for holding that the defendant, Matson, by contracting with the owner for construction of the improvements and to protect the owner from liability arising from the work thereby also assumed the position of an insurer of the safety of employees of a subcontractor where his own employer is legally and contractually obligated in these matters by provision of the Statute, Section 81-101, and the contract with Mat-son. To hold the prime contractor responsible to assure compliance by all subcontractors by actual physical inspection and direction would be to write for the parties a contract different from that into which they entered and would destroy the relationship of independent contractor existing between them.

We therefore conclude no error occurred and the judgment ought to be affirmed.

Brown, J., disqualified.

Fogleman, J., dissents.

John A. Fogleman, Justice.

I respectfully dissent because I think that the trial court and the majority have misapplied the summary judgment statute.

Summary judgments are not the favorites of the courts and in determining whether such a judgment should be granted, all pleadings must be liberally construed in favor of the party against whom the judgment would ho granted. White River Limestone Products Co. v. Missouri-Pacific R. Co., 228 Ark. 697, 310 S.W. 2d 3. This extreme remedy should be granted only in the absence of any genuine issue as to any material fact. Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 2d 646; Kealy v. Lumbermen’s Mutual Ins. Co., 239 Ark. 766, 394 S.W. 2d 629. The burden of demonstrating nonexistence of a genuine fact issue is upon the moving party. Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S.W. 2d 435. If any vital and material fact issue is presented, a summary judgment should be refused. Douthit v. Arkansas Power & Light Co., 240 Ark. 153, 398 S.W. 2d 521. In considering a motion for a summaiy judgment all reasonable inferences must be considered in the light most favorable to the party against whom the judgment would go. Evers v. Guaranty Investment Co., 244 Ark. 925, 428 S.W. 2d 68. I submit that there is a genuine issue of fact to be determined in this case.

Ln order to illustrate the existence of this issue, attention must be given to a legal basis of liability urged by appellants but ignored by the majority. Appellants’ argument with reference to the application of the safety code is not restricted to their contention that compliance with standards therein set out is a nondelegable duty of the general contractor. I will agree that, generally speaking, the general contractor is not the employer under those statutes, insofar as employees of a subcontractor are concerned. Appellants argue, also, that the general contractor was not at liberty to stand by with knowledge of violation of the safety code by his subcontractor and escape liability merely because the actual work was being done by an independent contractor. I submit that appellants are correct in this contention. Although I am unaware of any Arkansas decision on this point, I am convinced that the better rule is that a general contractor who knows that a subcontractor is doing his work in an unlawful and dangerous manner and fails to lake any steps to remedy the situation is liable for any injury resulting directly to a third person for such unlawful and negligent conduct. See 2 Shearman Bed-field on Negligence 685, § 276; Rosenberg v. Schwartz, 260 N.Y. 162, 183 N.E. 282 (1932); Delaney v. Philhern Realty Holding Corp., 280 N.Y. 461, 21 N.E. 2d 507 (1939); Schwartz v. Merola Bros. Constr. Corp., 290 N.Y. 145, 48 N.E. 2d 299 (1943); Gardner v. Stonestown Corp., 145 Cal. App. 2d 405, 302 P. 2d 674 (1956); Waterway Terminals Co. v. P. S. Lord Mechanical Con., 242 Ore. 1, 406 P. 2d 556 (1965); Peairs v. Florida Publishing Co., 132 So. 2d 561, (Fla. App. 1961). While some of these cases involve an owner rather than a general contractor, the principle of law applied is the same.

There is clearly an inference from the record considered by the trial court that the general contractor knew the condition which existed, or was aware that it existed, and took no steps to cause corrections to be made even though the dangerous condition was created by a failure of the subcontractor to comply with the safety code.

In order to illustrate that there is a genuine issue on this point, it is necessary to refer to the pretrial orden- which was the basis of the motion on which summary judgment was granted. In setting out the appellants’ claim, the court stated that the appellants contended that the hoist was located at such a distance from the edge of the building that the space had to be spanned in order to permit the wheelbarrows and buggies with material to be moved from the hoist to the building; that the space was spanned witli a plywood board slab which was moved back and forth from time to time; that there were no other safety devices or precautions and specifically no fixed stationary platform at the level where the deceased was working, nor were there any guardrails, scaffoldings, toeboards or anything else surrounding the hoist which would protect a person who might fall when the hoist suddenly descended. It was also stated that appellants contended that the contractor had the authority to shut down the hoist if it did not comply with the safety code. According to this order, appellants also contended that the general contractor was negligent in permitting the subcontractor to span the space between the building and the hoist with a movable plywood board instead of a permanent stationary platform firmly fixed to the building, in permitting the subcontractor to operate the hoist at such a distance away from the building as to require that distance to be spanned and in failing to surround the hoist with scaffolding, guardrails and other safety devices which would protect a workman from falling in case the hoist descended without warning. Certain photographs were made exhibits to the pretrial order. These photographs give various views of the building under construction and the Matson hoist. If the conditions were as appellants contend, an inference might well be drawn that the subcontractor could not have utilized this hoist without the required safety appliances or equipment without the knowledge of the general contractor. In contending that the contractor permitted these deficiencies, the appellants necessarily contend that the contractor had knowledge thereof. One cannot permit something of which he has no knowledge.

The Rosenberg case is a leading case on the general contractor’s liability in such circumstances. It is typical and particularly applicable here. In that case, the general contractor was building a church. He sublet the brickwork to brick masons. The brick masons were laying brick at a height of 30 or 35 feet from a scaffold built on the outside of the wall. The scaffold was not guarded in any way. There was no rail or screen as required by the building code of the city of New York. A 12-year-old boy on an adjoining lot was injured by a piece of brick which fell from the place where the subcontractor’s workmen wore breaking brick on the scaffold. The New York Court of Appeals reversed the judgment of the trial court dismissing the complaint against the general contractor and remanded the case for trial.

This exception to the rule of nonliability of a general contractor is premised upon the assumption that the contractor knows of the unlawful and dangerous condition and fails to exercise any right of control by which he could have caused changes or corrections to he made. It seems to me that these questions of fact remain to he resolved and that they are an issue in this case.

I would reverse the summary judgment and remand the case for further proceedings.


author: Carretón Harris, Chief Justice.

text:
    Joe Mallett, et al v. Sara Brannon, et al
    5-4805
    439 S.W. 2d 32
    Opinion Delivered April 7, 1969

      Douglas Bradley for appellant.

      Gordon, Gordon & Eddy for appellees.
   Carretón Harris, Chief Justice.

This is the second appeal of this case. In Mallett, et al v. Brannon, et al, 243 Ark. 898, 423 S.W. 2d 880, a judgment for appellee was reversed when this court held that the trial court had abused its discretion in denying' appellants’ motion to require a further medical examination of appellee Sara Brannon, appellee’s doctor having failed to mention in his report findings relative to nerve damage. On this last trial, the jury again found for appellee, and fixed her damages at $38,000.00. From the judgment so entered, Joe Mallett, a driver for Save-A-Stop, Inc., together with said employer, brings this appeal.

On the first appeal, the question of appellants’ liability for alleged negligence was at issue, but that point is not raised in the present instance. Rather, it is assorted that the trial court abused its discretion by not allowing a continuance to permit appellants to take the discovery deposition of Dr. Joe Lester; that there was no substantial evidence of permanent injury, and the court erred in submitting this issue to the jury; and that the judgment was excessive.

Following the reversal, appellants took the evidence deposition of Dr. William H. Jordan, a neurologist of Little Rock, and the evidence deposition of Dr. John H. Adametz, a neurosurgeon of Little Rock; thereafter, Mrs. Brannon was, at the request of appellants, examined b}^ Dr. Larry Mahon, an orthopedic surgeon of Little Rock, and his evidence deposition was taken. This was done on May 21, 1968. Following the taking of this deposition, counsel for appellee, who stated that he did not receive a copy of the deposition until May 25, felt that he also wanted Mrs. Brannon examined by an orthopedic surgeon, and arrang-ements were made -to have this examination made by Dr. Joe K. Lester, an orthopedic surgeon of North Little Rock. This examination was conducted on Tuesday, May 28, and on Wednesday, the 29th, appellee’s counsel notified appellants’ counsel that Dr. Lester had examined Mrs. Brannon, and that a copy of the report of the examination would l)e sent. On Friday, May 31, a copy of Dr. Lester’s report was delivered to a Morrilton attorney, associated with appellants’ chief counsel, and the latter received a copy of the report on Saturday, June 1. The trial had boon previously set for Monday, June 3, and appellants’ attorney filed a motion asking that the case be continued until lie had the opportunity to take the discovery deposition of Dr. Lester. In his report, Dr. Lester said:

“X-rays were taken of the cervical spine including -AP, lateral, oblique and open mouth projections. Films were also obtained of the lumbar spine. Oblique films reveal some evidence of foraminal encroachment on the left between 05 and 06 and to a lesser degree between C4 and 05. The foraminal encroachment is associated with the fifth cervical vertebra. Oblique films reveal straightening of the cervical lordotic curve. There is definite straightening and a tendency toward reversal of the normal cervical lordotic curve in the neutral lateral view between 04 and 05.”

Appellant says that this condition did not appear on the x-rays taken by his expert witnesses, and he desired the opportunity to interrogate Dr. Lester by discovery deposition, and to have the x-rays examined by an expert x-ray technician. This motion was denied, and appellants contend that this action on the part of the com! was an abuse of discretion. We do not agree, for it is our view that sufficient expert opinion had already been obtained from other sources, and there was no urgent need that this discovery deposition be taken.

Between the first and second trials, appellee had presented herself for examination, at the request of appellants, to Dr. Jordan, neurologist, and Dr. Mahon, an orthopedic suregon. In addition, at the trial itself, appellants offered the deposition of Dr. Adametz, the neurosurgeon, who had examined Mrs. Brannon at the request of appellee’s family physician, Dr. Hickey. All three of these doctors testified that they could find nothing in their examination to account for appellee’s continued alleged disability. Dr. Adametz stated:

‘ ‘ I was unable to find anything on her detailed neurological examination to account for this patient’s continued alleged disability and I feel that she is definitely exaggerating her symptomatology during the course of my examination. I was convinced that she was not being completely honest with me, especially concerning her sensory examination, but was obviously exaggerating this. I cannot help to feel that she was magnifying all of her symptoms and definitety is alleging disability for which I could find no actual objective clinical neurological elements. ’ ’

Dr. Jordan found no sign of permanent injury in the neurological area, though he did state that her complaints were consistent with a cervical spine injury.

Dr. Mahon, the orthopedic surgeon, testified by deposition, and mentioned in detail his findings. X-rays were taken by the doctor of the cervical spine in the AP, lateral, oblique, and flexion-extension views, and all were within normal limits. He stated that her complaints were exaggerated, and he could find no evidence of permanent injury. Though he said that he could not rule out the possibility of disk protrusion, he found no evidence of it. We will not set out the testimony of these three experts in full, since there is no occasion to do so, but each supports the conclusion reached with pertinent facts, and it is thus clear that appellant was able to present substantial testimony that Mrs. Brannon’s complaints were not attributable to, nor the result of, negligence of appellants.

The point is that appellants were not caught, so to speak, “empty handed,” i.e., they presented evidence contrary to Lester’s findings. Our statutes relating to discovery depositions, and physical and mental examinations, Ark. Stat. Ann. §§ 28-348 and 28-357 (Repl. 1962), respectively, are taken practically verbatim from Rules 26 and 35 of the Federal Rules of Civil Procedure. This question is discussed in 23 Am. Jur. 2d, § 199, p. 556. After pointing out that, in federal cases, pretrial deposition discovery of the opposing party’s expert opinion may, in a proper case, be authorized, it is then stated:

“* * * Such discovery ordinarily will not be permitted ¡except in instances of extreme need thereof by the examining party and inability on his part to obtain expert opinion on the same matter from other sources. Such a pretrial discovery, it is indicated, will not be permitted except under special circumstances deemed to constitute good cause for allowing it, and a similar view has been taken in cases involving state counterparts to the federal rules.”

Similar language is used in 86 A.L.R. 2d 145. In United Airlines, Inc. v. United States, 26 F.R.D. 213 (1960), the court emphasized the underlying reason for the rule:

“Discovery of opinions or conclusions, howermr, furthers these goals in only a tangential manner, for while a witness to a physical occurrence is relatively unique, and, therefore, relatively indispensable, opinions are obtainable from many sources. This leads to the notion that since the party seeking discovery can obtain opinions without difficulty elsewhere, there is usually little need for him to seek them from experts associated with his adversary.”

Appellants’ contention is without merit.

It is next urged that there was no substantial evidence of permanent injury to justify submitting this issue to the jury. We are unable to agree with this assertion. • Even though we might feel that the strongest evidence on this issue was offered by appellants, this fact, of course, would not justify a reversal, for we are only permitted under the law to determine whether there was any substantial evidence to support the view of the prevailing litigant. In most instances there is substantial evidence on both sides, and we consider that to be likewise true in the case before us.

Briefly, Dr. Thomas TI. Hickey of Morrilton, Mrs. Brannon’s doctor for a long number of years, testified that lie found a straightening of the normal curve of the cervical spine, which usually indicates injury to that portion of the spine, and he was of the opinion that she had received a severe sprain of the cervical and dorsal spine. He testified that he found severe contusions to the anterior chest wall, and multiple contusions and abrasions. The doctor testified that she still had pain and soreness in her neck, and pain, soreness, and swelling in the left upper extremity; also some flebitis in the left upper extremity, which the witness stated could be caused by trauma. Dr. Hickey said that he had been her physician for many years, and she had never made complaints of pain in the areas examined, prior to the accident. It was his view that soft tissue damage was causing the pain radiating from the neck into the left .shoulder, the pain in the back of the neck, and the feeling of numbness and weakness in the left arm, about which Mrs. Brannon continued to complain. He said that this type of injury was very painful, and that usually arthritis follows. It was his view that appellee would continue to have pain and suffering, and her injury would be permanent. The doctor testified to a 35% permanent partial disability as a result of injuries received when her automobile was struck from the rear by the tractor trailer.

Dr. Lester found a 3.00 restriction in the left lateral motion of the neck, and some curvature present in the low back, with slight accentuation of the lumbosacral angle. Further, there was a slight loss of sensation on the outside of the left foot, being the area supplied by the sural nerve, which emerges from the last disk, this being (according to the witness) evidence of injury to the fifth lumbar vertebra. The doctor said that the x-rays reflected she had a straightening and a tendency toward reversal of the normal cervical curve, and on the oldique view, there was evidence of change on the left, which was compatible with the type of injury that she sustained. He found a roughness in the area above and below the fourth vertebra on the left, and there was reflected some small early bone formation compatible with injuries occurring from this kind of accident. He was of the opinion that Mrs. Brannon would need to continue using traction at home on her neck, and back exercises, and he said that she probably has some permanent disability. The doctor was reluctant to set a degree of permanent disability after one examination, but it was his view that findings reflected enough objective x-ray evidence to support Dr. Hickey’s opinion.

Of course, though Dr. Hickey was not a specialist, there is significance in the fact that this doctor had known appellee for years, and had treated her prior to the injury. We conclude that there was sufficient evidence of permanent injury to justify the submission of this issue to the jury.

Finally, it is argued that the verdict is excessive.

Mrs. Brannon was 32 years of age at the time of this trial, and had a life expectancy of 44% years. While she and her husband lived in California for a period of six years, she managed a trailer park, and on moving to (Jonway County, worked part time at a drug store. She said that she had not worked for about four years, because of her school age children. Appellee related her difficulties following the accident, stating that she does not have her former ability to work in her garden, cannot perform many household functions, cannot drive an automobile for more than 30 minutes at a time, and has difficulty in holding objects in her left hand. She complained of severe headaches, which she said still continued, though not as bad as formerly, and she said that the pain in her neck, though still present, seems to be better. Plowever, Mrs. Brannon stated that the pain in her low back and left leg was worse than it was a year earlier, and that her left arm tingles as though asleep; the arm hurts from her elbow to the shoulder when she is working, and frequently swells and stays sore for two or three days. According to the witness, she had difficulty in sleeping or resting for a long period of time. Of course, appellee’s evidence shows that she has a 15% permanent partial disability, and testimony of her doctors was to the effect that she will continue to suffer pain. T)r. Hickey was also of the view that she will develop arthritis. According to the evidence, she had suffered pain and mental anguish for close to 27 months before trial, and of course, future pain and anguish is also compensable. Though she has not been employed for four years, she testified that it had been her intent to again seek employment when her children were older. Because of her injuries, the positions that she could hold would seem to be somewhat limited. The question of determining whether a given award for damages is excessive is one of tlie most difficult questions that confronts an appellate court, and it is only where there is no evidence on which the amount allowed could properly have been awarded that there is justification for reducing a judgment. While the judgment herein rendered is rather generous, we are not able to say, under all the facts and circumstances, that it is excessive.

Affirmed.

      Actually, the suit was filed by Mrs. Brannon and her husband, but Mr. Brannon received a judgment for $2,000.00 at the first trial, which was paid, and he is no longer a party to the suit. Accordingly, there is only one appellee, Mrs. Brannon, involved in this litigation at the present time.

      On trial, Dr. Lester testified that Mrs. Brannon sustained an injury which occurs in rear end automobile accidents called a hyperextension flexion injury. His testimony will be subsequently discussed in more detail.

      Prior to the first trial, Mrs. Brannon had been examined by Dr. J. J. Magie, a Morrilton physician, and it was his findings that prompted this court to hold that appellant was entitled to have appellee examined by a neurologist. For a full summary of Dr. Magie’s findings, see Mallett v. Brannon, supra.

      The doctor’s actual examination, however, was limited to determination of whether there was any nerve damage.


author: Carleton Harris, Chief Justice.

text:
    Arkansas State Highway Comm. v. Roy Carruthers, et ux
    5-4844
    439 S.W. 2d 40
    Opinion Delivered April 7, 1969

      Thomas B. Keys and Hubert E. Graves for appellant.
    Gordon, Gordon & Eddy for appellees.
   Carleton Harris, Chief Justice.

This appeal relates to an eminent domain action brought by the Arkansas State Highway Commission against Roy Carruthers and wife for the acquisition of lands needed for the construction of Interstate Highway 40,. and its facilities in Conway County. On trial, the jury returned a verdict in the amount of $45,000.00 in favor of appellees, and from the judgment so entered, appellant brings this appeal. For reversal, two points are. urged. It is first asserted that the trial court erred in allowing the landowner to testify to the amount of an estimate by a contractor as to the cost of building a necessary bridge, following the taking, for access to a portion of the remaining land. It is also contended that the trial court erred in refusing to strike the testimony of two of appellees’ witnesses with respect to damage to an airstrip, this portion of land having .been leased by Carruthers, and the lessee not being a party to the action.

We agree that there is merit in appellant’s first contention. During examination of Mr. Carruther’s, he was asked if he would have any problem getting to a certain portion of his land, and he replied that he would not, if he could construct a bridge across a canal. The witness was then asked if he knew what that would cost, and he replied, “I am not familiar with the building of roads. I have an estimate from a contractor. ’ ’ He then said that he asked the contractor what it would cost to build the bridge, and received a reply. Counsel for the department objected to the use of the estimate, or to any testimony to be given on the basis of same, stating, ‘ ‘ That is hearsay testimony. ' He has no personal knowledge, it is what someone else told him.” Over these objections, the court permitted Carruthers to testify, and the witness stated, “I believe it was $24,300.00 or $24,400.00.” This ruling by the court constituted error. As early as 1896, this court, in Little Rock and Ft. S. Ry. Co. v. Alistar, 62 Ark. 1, 34 S.W. 82, said:

“There was error also in admitting the testimony of West, which was only the opinion of a non-expert, whose testimony shows that he was guessing merely at what he testified to, and that his opinion was based upon hearsay, and that he really knew nothing about what he was testifying.”

Likewise, in J. F. Beasley Lumber Company v. Sparks, 169 Ark. 640, 276 S.W. 582, we stated:

“It is first contended that the court erred in permitting appellee to testify concerning statements made to her by a certain building contractor as to the estimated cost of completing the building. She was. .permitted to testify, over objections of appellant, that a Mr. Finn had figured up for her the cost of completing the building and informed her that it would amount to the sum of $4,600. This testimony was purely hearsay, and we are of the opinion that the court erred in admitting it.”

In Arkansas State Highway Commission v. Speck, 230 Ark. 712, 324 S.W. 2d 796, we held that the contemplated costs of restoration, including the cost of bridges necessary to the ingress and egress of the landowner, though not the actual measure of damages, may be offered into evidence as a fact for the jury to consider, along with other facts, in arriving at the difference between the market value of the property before and after condemnation. In the case before us, the figure testified to by Carruthers was over 50% of the award of damage's, and we are unable to say that this testimony did not influence the jury, i.e., we are not able to say that the appellant was not prejudiced by this evidence.

As to the second alleged error, we merely point out that, where property is under a lease at the time of the condemnation, the owner is only entitled to damages to the reversion, after the determination of that estate. Appellant says that some of appellees’ witnesses, in reaching their conclusions on damages, considered the value of the leasehold estate, while appellees assert that this was not done. Actually, the testimony is not entirely clear on that point, but since the ease will he retried, there is no need to discuss the evidence.

Because of the error heretofore pointed out, the judgment is reversed, and the cause remanded to the Conway County Circuit Court.


author: George Rose Smith, Justice.

text:
    Wilburn W. Miller v. Herschel Goodwin and Dorothy Beevers, Administratrix
    5-4825
    439 S.W. 2d 308
    Opinion Delivered April 7, 1969
    [Rehearing denied May 5, 1969.]

      Shaver, Tackett & Jones by Nicholas H. Patton for appellant.

      Chambers & Chambers and McKay, Anderson & Crumpler for appellees.
   George Rose Smith, Justice.

This case has been in litigation for more than four and a half years, with four jury trials. On July 17, 1964, a heavy truck, described as a derrick-type rig used in the oil fields, swerved suddenly off the Warnock Springs Road in Columbia County, overturned, and caught on fire. The appellee ITerschel Goodwin, who was driving the truck, "was badly burned. Goodwin’s employer, Robert Beevers, who was riding with him, was even more severely burned and died less than ten hours later.

The original suit was for the wrongful death only. Beevers’ administratrix, the plaintiff, charged Wilburn W. Miller, the defendant, with having caused the accident by driving a pickup truck down the center of the road and thereby forcing Goodwin to swerve to his right to avoid a head-on collision. The first trial ended in a hung jury. On the appeal from the second trial we reversed a judgment for the defendant because of an error in the instructions. Beevers v. Miller, 242 Ark. 541, 414 S.W. 2d 603 (1967). Goodwin then sued Miller lor personal injuries. After a consolidation of the cases a third trial also ended in a hung jury. At the fourth trial, now on review, the jury attributed 90% of the negligence to Miller and 10% to Goodwin. Both plaintiffs recovered substantial damages.

The appellant urges three points for reversal. First, it is contended that the court allowed the plaintiffs’ attorney to go too far in questioning a juror about his possible bias toward insurance companies. In respouse to a question to the whole panel the juror Lindsey stated that lie was an insurance agent representing companies writing automobile liability insurance. The plaintiffs’ challenge for cause was denied. Counsel was then allowed to put the following two questions — or perhaps more accurately, the following question and restated question, as Lindsey did not answer the first inquiry:

me. crumpler;
Would the fact, Mr. Lindsey, that you sell liability insurance in any way prejudice you, or have you acquired a habit, that is, by aligning yourself with an insurance company, would you in any way side with the defendant just because you’re usually on the defense side?
MR. TACKETT:
Now just a minute, Your Honor, we object and we ask for a mistrial.
the court;
It will be overruled.
MR. TACKETT;
Save our exceptions.
MR, CRUMPLER:
In other "words, Mr. Lindsey, in this particular case you feel like you can sit on this jury and give the plaintiff free and clear consideration jnst as though you never had sold any liability insurance?
MB. TACKETT :
We object again, Tour Honor, and ask for a mistrial.
the court:
It will be overruled. [Exceptions.]

It is contended that the questions had the effect of informing the panel that the defendant had liability insurance. We do not agree with that view, for we find no reason to believe that the inquiries were not made in good faith for a permissible purpose. In a similar situation, except that the trial court refused to allow any questions on the subject of insurance, we said in Dedmon v. Thallieimer, 226 Ark. 402, 290 S.W. 2d 16 (1956): “A person may have connections with an insurance company that would cause him to be biased in favor of such companies ... A lawyer trying a case would be rather careless if he failed to ascertain as well as possible if any one on the venire was biased or prejudiced on a question involved in the litigation, even though such question would be only indirectly involved.”

Here counsel challenged Lindsej7- for cause -when he revealed his connection with liability insurance companies. That move failed. It was then advisable for the attorney, before deciding whether to challenge Lindsey peremptorily, to try to find out if his insurance ties would, cause him to favor the defensive side of the lawsuit.

Counsel also cite Armstrong v. Lloyd, 234 Ark. 233, 352 S.W. 2d 84 (1961), to support the argument that in any event the further interrogation of Mr. Lindsey should have been conducted in chambers, outside the hearing of the rest of the panel. Perhaps that procedure would have beeu desirable, but the issue was not raised in the court below, for no such request for an in-chambers hearing was made. We find no merit in the appellant's first point.

Second, counsel for the appellant, without questioning the integrity either of the jury commissioners or of the jury itself, filed a motion to set aside the verdict on the ground that two of the jury commissioners had served in that same capacity within the preceding four years, contrary to Ark. Stat. Ann. § 39-202 (Repl. 1962). The trial court correctly denied the motion. The proof is not entirely clear, but even if it be assumed that the objection would have been valid if made to the panel as a whole, it came too late after the jury had been sworn and had returned its verdict. Brown v. State, 12 Ark. 623 (1852). The prior service of the jury commissioners was a matter of public record that could have been raised by a challenge to the panel. The appellant cannot be permitted to speculate upon the chance of a favorable verdict and then belatedly raise the point after the verdict proved to bo in favor of his adversary.

Finally, it is insisted that the court should have excluded proof of a purported dying declaration by which Beevers tolcl a nurse at the hospital that “a butane truck ran them off the road.” The identification of the truck was important, because that was the most sharply disputed point of fact at the trial. Many witnesses saw Goodwin’s rig soon after it left the road and caught on fire, but Goodwin was the only eyewitness who described the particular pickup truck that later proved, according to Goodwin, to have been driven by Miller. Miller admitted that he was driving a butane truck in the vicinity at about the time of the accident, but he positively denied that it ivas his truck that caused Goodwin to leave the road. Inasmuch as Goodwin’s original statement describing Miller’s truck contained an inaccuracy, Beevers’ dying declaration emerged as corroborating proof that may have tipped the scales in favor of the plaintiffs.

It is first argued that Beevers’ declaration was inadmissible because he was not under a sense of impending death. We do not find that argument convincing. The accident happened soon after 7:00 a.m. Beevers’ clothing was burned off, the burns covering 85 to 90 percent of his body. At the scene he made the statement: “I’m completely burned up.” He also said: “The good Lord’s let me live this long, and I appreciate it.” There is no indication that Beevers’ state of mind changed during the short interval between the accident and his statement to the nurse. Rather to the contrary, owing to his condition he asked at the hospital that his wife not be permitted to see him. Beevers was conscious until about noon and unquestionably knew that he liad been very severely burned. He died at about five o’clock that same afternoon.

Under our practice the trial judge first determines whether a proffered dying declaration was made under such circumstances as to be competent evidence. If so, the judge admits it, as was done here. In reviewing his decision on the preliminary question of admissibility we treat it as an issue of fact, to be determined by the test of substantial evidence. Fogg v. State, 81 Ark. 417, 99 S.W. 537 (3907). In our opinion the testimony that we have mentioned is substantial proof that Beevers spoke under the requisite belief that his death was impending. At that point our review ends.

Counsel also insist that the statement, “A butane truck ran us off the road,” is merely a conclusion and is therefore inadmissible. It is true, of course, that more details would have been elicited from a living witness testifying in the courtroom, but allowances must be made in the case of a declaration made by a person now dead. In fact, Bean Wigmore took the position that the rule against opinion evidence (one aspect of which is the ban against conclusions) ought not to be applicable to dying declarations, because under the law it is necessarily true that the declarant cannot be called to narrate the facts in detail. Wigmore, Evidence, § 1447 (3d Ed. 1940). Wigmore conceded, however, that the majority view is against the admission of dying declarations that are merely statements of opinion, and that is the view that we have taken. Rhea v. State, 104 Ark. 162, 147 S.W. 463 (1912).

Even so, when as here the dying declaration is partly an assertion of an admissible fact and only partly a conclusion constituting the dying man’s spontaneous statement of what happened, we are not inclined to apply the exclusionary rule quite as strictly as might be fair and just if the declarant were on the witness stand and available for further questioning. In this instance the most important part of Beevers ’ statement — his description of the offending vehicle as “a butane truck” — was not a conclusion. To the contrary, it was an unequivocal statement of fact. We are not willing to say that the juiy should have been deprived of that vital information merely because Beevers coupled it with the assertion that the butane truck in question had “run us off the road.” In a situation of this kind the trial court must exercise its sound judgment in ruling upon the admissibility of the declaration as a whole. Here we think the court rightly concluded that the desirability of admitting the vitally important factual part of Beevers’ statement outweighed the slight possibility that the jury might have been unfairly influenced by Beevers’ understandable failure to narrate all the facts that led him to say that he and his companion had been run off the road.

We have held that the trial court has some discretion in refusing to exclude a witness’ answer which contains both competent and incompetent matter. Arkadelphia Lbr. Co. v. Asman, 85 Ark. 568, 107 S.W. 1171 (1907). Moreover, such a situation can be handled by an admonition to the jury, limiting the purpose for which the testimony is admitted. The burden, however, is upon the objecting party to request such an admonition, a mere general objection being “wholly unavailing.” Wood v. Burris, 241 Ark. 118, 406 S.W. 2d 381 (1966). Here no such request was made. Hence we are unable to say, considering the record as a whole, that the court erred in admitting the dying declaration.

Affirmed.

Harris, C.J., and Jones, J., think the dying declaration to be inadmissible.


author: Lyee Brown, Justice.

text:
    Paul Hardeman, Inc., et al v. J. I. Hass Co., Inc., et al
    5-4852
    439 S.W. 2d 281
    Opinion Delivered April 7, 1969
    [Rehearing denied May 5, 1969.]

      Wright, Lindsey & Jennings for appellants.

      Hose, Meek, House, Barron, Nash & Williamson for appellees.
   Lyee Brown, Justice.

Plaintiffs below were Paul Hardeman, Inc., Fischbacb and Moore, Inc., and Morrison-Knudsen, Inc., prime contractors under a joint venture in the construction of missile launch facilities in White County. The defendant J. I. Hass Company, Inc. was a painting subcontractor for the joint venture or prime contractor. William Turpin, an employee of Hass, was injured when he fell while painting near the top of a vent pipe. The prime contractor admitted negligence in not properly securing the vent pipe at its base and paid Turpin $50,000. Plaintiffs sued Hass under a contract of indemnitjr for the amount paid Turpin. (The Uniform Joint Tortfeasors Act is not involved.) Umployers Mutual Liability Insurance Company of Wisconsin paid Turpin workmen’s compensation and it intervened, seeking recoupment from the prime contractor; Turpin’s release to the prime contractor reserved intervenor’s right to maintain such an action. The trial court held (1) that Hass was free of any negligence contributing to cause Turpin’s injuries, (2) that the contract of indemnity did not obligate Hass under the circumstances to indemnify the prime contractor, and (3) that the stipulated amount due Employers Mutual would hear interest from the date of entry of judgment and not from an earlier date when the debt was stipulated to bo owed. Plaintiffs appeal on the first two holdings and Employers Mutual appeals with respect to the elate interest should have started.

The prime contract hold by the joint venture called for its installation of a three-inch vent pipe to be set vertically in a concrete pad or base. When the concrete was poured the three-inch pipe was not available; so, with the approval of the United States Corps of Engineers, a four-inch sleeve or collar was placed in the concrete base. Tt was agreed that the three-inch pipe would be inserted in the sleeve to a depth of eighteen inches and welded. When the tliree-inch pipe arrived it was inserted but only to a depth of a few inches. Instead of welding the two pipes a type of caulking' material was inserted in the space between the pipes. The pipe was 27’ 10” in height above the pad. The prime contractor awarded J. I. Hass Company a painting contract which included this particular pipe. Hass furnished its painter, William Turpin, the equipment with which to do the painting. In the painting trade that equipment is called stirrup and saddle. Two buckles are tied on the ends of a rope and are used for foot stirrups. That rope is placed around the center of the pipe. Another rope is tied to a two-by-twelve board and it is used for a saddle. That rope is likewise attached to the pole and is thrown and tied off at a point some four feet from the top of the pole. The top four feet is painted by the use of a long brush so the painter never climbs higher Ilian the tie-off. Turpin had painted approximately four feet when the pipe came loose at the base and he fell to the ground.

That the prime contractor was negligent in the erection of the pipe is not here questioned. This suit was instituted on the theory that as a matter of law the contract of indemnity executed by Hass obligated it to reimburse the prime contractor in full for the latter’s payment to Turpin. In the alternative it was asserted that Hass would unquestionably be liable in proportion to its negligence in allegedly failing to provide Turpin with safe equipment for the performance of his task. Both sides presented their evidence on the alleged negligence of Hass. The trial court concluded that Hass was entitled to an instructed verdict. Secondly, it was held that Hass was not obligated to reimburse the prime contractor for sums it was forced to pay as a result of an accident caused solely by the prime contractor’s negligence. We proceed to examine the propriety of the court’s holdings on those two points.

In testing the granting of a directed verdict the rule has been many times stated and ofttimes with a slight variation. A typical statement of the rule is found in Barrentine v. The Henry Wrape Co., 120 Ark. 206, 179 S.W. 328 (1915):

In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury.

We have no intention of deviating from the rule just stated; however, it has been some time since we have pointed up the meaning of the term “any evidence.” The term has long been recognized to mean “.evidence legally sufficient to warrant a verdict.” Catlett v. Railway Company, 57 Ark. 461, 21 S.W. 1062 (1893). To be legally sufficient it must be substantial; and substantiality is a question of law. St. Louis S.W. Ry. Co. v. Braswell, 198 Ark. 143, 127 S.W. 2d 637 (1939).

The only witness offered by the prime contractor was Ben Hopkins. His qualifications in the field of structural engineering were admitted. We summarize the significant portions of his direct testimony in the following paragraph:

A procedural method of painting a pipe of three inches or less, over 24 feet high is to place a painter’s extension ladder on each side of the pole. A lock is placed at the top section of the extension ladders, locking them together. There is no contact between the pole and the ladders. The bottom of the ladders is placed four feet from the bottom of the pole. Another method is to drop a painter by a swing that is hung from a crane, lift. That is not as economical as the ladder method. With the stirrup and saddle method, the weight and movement of the painter creates a stress at the point of anchorage. If a painter and his rig weigh 200 pounds and he is at the top of a pole. 27’ 10” in height, is suspended outside the pipe and some twelve inches away from it, with his legs not wrapped around the pipe, he would create a “live and dead load of 19,-082 pounds per square inch” on a three-inch pipe. Pipe of the type at hand is not used by engineers for building purposes past a criteron of 18,000 pounds of stress per square inch. Actually the yield point of that type pipe is set by manufacturers between forty-five and sixty thousand pounds. Design engineers use the eighteen thousand pound criteron as a cushion for safety. He asserted that any unusual movements made by Turpin while in the painting process would be a critical factor.

On cross-examination it was brought out that Mr. Hopkins was not aware that the three-inch pipe was inserted from two to three inches into the four-inch pipe, that the pipes were not welded, and that caulking material was placed in the space between the pipes. When advised of that situation he conceded that Turpin was bound to fall because of the faulty installation. And, although he did not deviate from his opinion that the saddle and stirrup method is poor procedure, he concluded that he liad no criticism of Hass for permitting Turpin to climb the pole with that method. In reaching that conclusion he considered the fact that other poles properly constructed had been climbed by the same method and without incident.

Hopkins ’ opinion that the stirrup and saddle method was unsafe in this situation is fatally weakened by some of his assumptions which are not supported by the record. He conceded that the strength of the pipe was on a “hairline” between being safe and hazardous. For that reason his assumptions become all the more important. Hopkins calculated the stress at the anchor point from the very top of the pole; the uncontradicted proof showed that the painter tied off his climbing rope from three to four feet below the top. In computing the stress at the anchor point, Hopkins assumed that Turpin and his rig created a weight of 200 pounds; there is no evidence in the record to support that assumption. He assumed that the painter was suspended some twelve inches from the pole with liis legs dropped downward; the evidence showed that the saddle was against the pole and the painter’s legs were wrapped around the pole. Added to the unsupported assumptions is the fact that there was no proof of any unusual movements by Turpin, which it is admitted would have been significant. Another factor which the trial court probably considered of some importance is that Hopkins revealed that the yield point set by manufacturers is from forty-five to sixty thousand pounds, as opposed to his estimated stress load placed on the pipe by Turpin of 19,082 pounds.

Of course any negligence on the part of Hass in furnishing Turpin with what Hopkins considered to be an improper set of equipment would not be enough to make Hass liable. The second and vital step in the chain of proof would be a showing preponderantly that the equipment used was a proximate cause of the fall. In that respect we consider the proof to be entirely lacking. In fact Hopkins stated that the pipe fell because of defective installation.

Secondly, the prime contractor claims a right to judgment against J. I. Hass Company as a matter of law. That is on the theory that under the terms of the subcontract, Hass agreed unconditionally to indemnify the prime contractor for any and all liabilities owed by the prime contractor arising out of any accident occurring as a result of the subcontractor’s activities; and that the obligation was undertaken by the agreement irrespective of fault. The indemnity provision of the subcontract is as follows:

9. Subcontractor agrees to save and indemnify and keep harmless Contractor, Owner and Architect-Engineer against all liability, claims, demands or judgments for damages arising from accidents to persons or property occasioned by Subcontractor, his agents or employees, and against all claims or demands for damages arising from accidents to Subcontractor, his agents or employees, whether occasioned by Subcontractor or his agents or his employees ; and Subcontractor will defend any and all suits brought against Contractor, Owner, or Architect-Engineer, and all of them, on account of any such accidents, and will pay any judgments rendered in such suits, and will reimburse and indemnify Contractor, Owner or Architect-Engineer and any of them, for all expenditures, or expenses, including attorney foes and court costs, had or incurred by reason of such accidents. Contractor shall, at its option, have full control of any defense of any such suits, and contractor■ shall at all times have the option of choosing the attorney or attorneys to perform the professional services involved.

On the question of indemnity we are cited one caso from our jurisdiction, C & L Rural Elec. Coop. Corp. v. Kincaid 221 Ark. 450, 256 S.W. 2d 337 (1953). There the indemnity provision is so different from the one at bar that Kincaid is of no aid. Many decisions are cited by appellants and appellees from other jurisdictions supporting their respective theories. The decided weight of authority favors appellees. The precise question is whether this indemnity provision obligates the subcontractor to indemnify the prime contractor for damages arising out of the negligence of prime contractor which was the proximate cause of Turpin’s injuries. The intention of Hass to so obligate itself must be expressed in clear and unequivocal terms and to the extent that no other meaning can be ascribed. 41 Am. Jur. 2d, Indemnity § 15. Where an injury is caused by the sole negligence of the indemnitee many courts, in interpreting the indemnity contract, predicate their interpretation on the theory that such a liability would be unusual and .harsh; consequently, the courts endeavor to relieve the indemnitor of liability to the negligent indemnitee. 175 ALR, p. 32, § 18.

We examine the provisions of the indemnity paragraph. There are three areas in which liability is imposed on the subcontractor:

1. He is liable for damages arising from accidents to persons or property occasioned by him, his agents or employees;

2. He must indemnity for damages chargeable to the prime contractor as a result of injury or damage to the subcontractor, his agents or employees, whether occasioned by the subcontractor, or his agents or employees; and

3. The subcontractor must at his expense defend any suits brought against the prime contractor as the result of any accident occasioned by the subcontractor, his agents or employees.

The meaning of the words “occasioned by” holds the key to a proper interpretation of the contract.

As used in this contract the verb “occasioned” could have had one of two meanings. In a number of instances it is said that the cause of an injury is that which actually produces it, whereas the occasion is that which provides an opportunity for the casual agency to act. Merlo v. Public Service Co., 45 N.E. 2d 665 (Ill. 1942); Barney v. Adcock, 75 N.W. 2d 683 (Neb. 1956). On the oilier hand most dictionaries list “caused” as a synonym for “occasioned” and there are those cases in which the two words are said to be synonymous. For example, Union Gold Mining Co. v. Crawford, 69 P. 600 (Colo. 1902); People v. Halbert, 248 P. 969 (Calif. 1926); and Smart v. Raymond, 142 S.W. 2d 100 (Mo. 1940).

In view of the uncertainty of the manner in which “occasioned by” was used in this contract, we cannot say the subcontractor expressed an intent, in words clear and unequivocal, to bind itself for the negligence of the prime contractor. That is especially true in face of the fact that it would require no extraordinary skill in draftsmanship to so bind the subcontractor' in words and phrases of absolute certainty.

There remains for consideration the cross-appeal of Employers Mutual. At the trial on October 26, 1965, the prime contractor' stipulated its liability to Employers Mutual for- workmen’s compensation benefits paid Turpin. Through no fault of the parties or the court the formal judgment was not entered until August 3, 1967. That judgment allowed interest to Employers Mutual from tire latter date. The carrier is entitled to interest from the date of the stipulation. Kincade v. C. & L. Rural Elec. Coop., 227 Ark. 321, 299 S.W. 2d 67 (1957).

Affirmed on direct appeal; reversed and remanded on cross-appeal.

Foglkman, J., disqualified arrd not participating.


author: Lyle Brown, Justice.

text:
    Fraternal Order of Eagles v. State of Arkansas
    5-4901
    439 S.W. 2d 36
    Opinion Delivered April 7, 1969

      Fitton, Meadows & Adams for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Lyle Brown, Justice.

This is an appeal from a permanent injunction issued against the Fraternal Order of Eagles, Aerie 3183, Baxter County, at the instance of the prosecuting attorney on behalf of the State. The subject of the injunction was the sale of alcoholic beverages by the club. Appellant here contends that the dispensing of mixed drinks to members of a non-profit club in a “dry” county does not constitute a sale of alcoholic beverages. Alternatively, it is insisted that the dispensing of drinks by a private club to its members, even if considered illegal, does not constitute a public nuisance within the meaning of Ark. Stat. Ann. § 34-101 (RepJ. 1962)

The facts on appeal are stipulated. A lawful search of the lodge in July 1967 resulted in the confiscation of 250 cases of intoxicants and six slot machines. The lodge was operating a bar from which mixed drinks were served to members and guests for cash. A few days thereafter the prosecuting attorney filed a petition against the lodge to abate a nuisance, proceeding under Ark. Stat. Ann. §§ 34-101, 110. A temporary order was entered closing the building pending a final hearing, as authorized by § 34-104. At the final hearing the injunction was made permanent pursuant to § 34-106. The legal effect of that order was to enjoin the defendants from engaging in unlawful activities forming the basis of the nuisance.

Section 34-101 declares the unlawful sale of liquors “in any building, structure, or place in this State” to constitute a public nuisance. The recited statute authorizes the abatement to go against the premises from which the violator is operating. Baxter County is legally a dry county. Ark. Stat. Ann. § 48-811 (Repl. 1964) makes it unlawful to “sell, barter, or loan, directly or indirectly any beverage containing alcohol” in a dry county.

The court made a finding that the sale of alcoholic beverages had been activefy carried on under the direction of the lodge officers. There was ample evidence to justify that conclusion. The volume of business was such that an inventory of 250 cases of intoxicants was on hand at the time of the raid. The number of members of the order is not in the record but the utilization of six slot machines is indicative of substantial patronage. Also, the club was enjoying sufficient profits from its “projects” to finance a new lodge and golf course.

A¥e have no hesitancy in sustaining the trial court’s ruling that the substantial sale of intoxicants from the lodge building by its operating officers brought appellant within the practice condemned as a nuisance by the provisions of § 34-101.

Affirmed.

      It is not contended that appellant possessed any type of permit which purportedly would have authorized it to dispense intoxicants in a dry county.


author: J ohn A. Fogleman, Justice.

text:
    Life & Casualty Insurance Company of Tennessee v. Ronald Nicholson
    5-4854
    439 S.W. 2d 648
    Opinion Delivered April 7, 1969
    [Rehearing denied May 12, 1969.]

      Chuwning, Mitchell, Hamilton & Bivrrow for appellant.

      Wilton E. Steed for appellee.
   J ohn A. Fogleman, Justice.

This appeal is taken from a judgment rendered in favor of the mother of appellee, as his guardian. It was rendered in a suit brought by appellee upon an industrial accident insurance policy issued by appellant on April 4, 1949. The application for the policy was signed by the mother. The losses insured against were death by accidental means and losses of sight or limb. The face amount of the policy became $2,000 after it had been in force for 10 years. The suit was for the loss of the sight of appellee’s right eye, for which the benefit payable was one-half .the face amount, of the policy. ■ In order for the benefit for loss, of sight or limb to become payable, the loss was required to have been suffered solely as “a direct and proximate result of diseases contracted after or injuries sustained after the effective date of this policy. ’ ’

One of the defenses made by appellant was the contention that appellee’s loss was the result of a disease which pre-existed the effective date of the policy. After hearing the testimony, the circuit judge, sitting without a jury by stipulation of the parties, made the following findings.

“THE COURT:
1 rather think we should pay this policy Mr. Selig under the proof. The boy apparently is blind, they insured him, he was carrying- it on for years, accepting the premiums. I realize there are a lots of little technicalities in those policies, there are also lots of technicalities in the taking of a man’s money off of him and then when you get ready and ho is blind and you say he is blind, admit it, admit the policy says that, you say he isn’t I believe. Well, Dr. Glasscock I rather think is a reputable physician, his qualifications were admitted. I don’t know how to examine a fellow to tell you that properly about it except to go to doctors. I think he has waived, they waived it, whatever they might have there under the proof and I think it should be paid. ’ ’

Appellant urges two grounds for reversal. The first is that the undisputed evidence shows that appellee’s loss of sight in his right eye was not suffered as a result of a disease contracted or injury sustained after the effective date of the policy, but that it preexisted and manifested itself before the policy became.effective. The second ground is a contention that the court erred in holding' that appellant waived the defense of noncoverage for losses suffered as a result of conditions which pre-existed the effective date of the policy. We agree with appellant on both points. We shall discuss them in the order set out.

In attempting to sustain his complaint, appellee offered two witnesses, Dr. Robert Earl Glasscock, an ophthalmologist and otolaryngologist, and appellee’s mother. Dr. Glasscock examined appellee November 11, 1966. His examination disclosed that appellee’s visual acuit}'- in his ¡eye was such as to indicate industrial, but not medical, blindness. He did not find anything physically wrong with either of appellee’s eyes. He felt that the visual loss was connected in origin to appellee’s central system, i.e., with whatever was causing a convulsive disorder suffered by appellee and his obvious retardation. Dr. Glasscock took .a medical history from appellee’s mother. She told him that appellee was cross-eyed in his right eye since he was about five or six years old and that lie had had some type of convulsive disorder since that time. Dr. Glasscock stated that such a condition remains more or less stable because the damage causing the condition does not progress. He stated that this condition would stay approximately the same if it existed in 1944 or 1945 when appellee was five or six years of age. He did not beli eve that either a layman or a doctor could have glanced at appellee in 1944 and said that he was mentally deficient, but stated that, on the basis of the history given by appellee’s mother, the condition was diagnosable in 1944 or 1945.

Mrs. Ness, appellee’s mother, stated that she advised the agent from whom she took the policy that her son, Ronald, had seizures for which he took mylantin sodium. She said that she told the agent that these sudden seizures had been diagnosed as acute indigestion, and that Ronald would sometimes have convulsions and she would have to get the doctor to give him a shot. She admitted that the first time she saw her son’s eyes show a cross was when he was about five or six years of age and asserted that she advised the agent of this. She testified that she first took her son to an eye doctor upon the recommendation of a school nurse. This doctor was identified as Dr. Louise McOammon Henry.

On the written claim submitted for this loss, the nature and cause of appellee’s disability was described as epilepsy and the date disability became total was given as “lifetime.”

Appellant offered the deposition of Dr. Henry, an ophthalmologist. She testified that she examined appellee on March 21, 1951, when he was thirteen years of age. The medical history for this examination was given by appellee’s mother. According to Dr. Henry, (lie mother stated that her son had convulsions as a baby and that the crossing of his eyes began between the ages of five and six. This doctor diagnosed the condition which affected appellee’s vision in his right eye as a muscular defect which generally actively manifests itself in early childhood. It was her opinion, based upon her examination, that this condition existed in appellee from early childhood, that the degree of crossing would have been obvious to her and that, assuming the medical history to be correct, an accurate diagnosis could have been made of his condition when be was five or six years of age.

We find no substantial evidence here to support appellee’s claim that his loss of sight is within the coverage of the insurance policy.

Appellee relies upon the cases of Home Mutual Benefit Association v. Mayfield, 142 Ark. 240, 218 S.W. 371; State National Life Insurance Co. v. Stamper, 228 Ark. 1128, 312 S.W. 2d 441; United Insurance Co. of America v. Wall, 233 Ark. 554, 345 S.W. 2d 1927; American Insurance Co. of Texas v. Neal, 234 Ark. 784, 354 S.W. 2d 741; Old Equity Life Insurance Co. v. Crumby, 241 Ark. 982, 411 S.W. 2d 292; and Lincoln Income Life Insurance Company v. Milton, 242 Ark. 124, 412 S.W. 2d 291. These cases establish the proposition that a disease has its inception at the time it manifests itself or becomes active or when it is of such nature that a reasonably accurate diagnosis could have been made before the policy was issued. Even so, we cannot come to any conclusion in this case except that the disease which caused appellee’s loss of sight had been sufficiently manifested before the issuance of the policy to cause a diagnosis to have been sought and that it was of such a nature as to have permitted a reasonably accurate diagnosis to have been-made with reasonable medical certainty.

It should be noted that the clause in question in Home, Mutual Benefit Association v. Mayfield, supra, was quite different from the one involved here. The clause there required that the loss be from “disease resulting hereafter.”

The findings of the circuit court here seem to have been based principally upon waiver by appellant, purportedly by reason of the acceptance of the premiums for the policy ever since its issuance. There is also testimony by appellee’s mother that the soliciting agent saw appellee both when the application was made for the policy and when the policy was delivered. She also testified that she told the agent all she knew about her son’s condition. We find no waiver under the facts in this case. Appellee apparently agrees with us, because he does not argue this point, nor does he rely on waiver Por an affirmance.

It is well settled in this state that the doctrines of waiver and estoppel, based upon the conduct or action of the insurer, cannot be used to extend the coverage of an insurance policy to a risk not covered by its terms or expressly excluded therefrom. Hartford Fire Insurance Co. v. Smith, 200 Ark. 508, 139 S.W. 2d 411; Metropolitan Life Insurance Company v. Stagg, 215 Ark. 456, 221 S.W. 2d 29; Bankers Nat. Ins. Co. v. Hemby, 217 Ark. 749, 233 S.W. 2d 637. This is not a case where a forfeiture is attempted by the insurance company but is a question as to the extent of the coverage of the policy. Consequently, there is no support for a finding of waiver. The result is not changed by reason of the fact that appellant-accepted the payment of a premium after this claim was asserted. To have done otherwise would have been inconsistent with the contention made by appellant. Under the terms of the policy, it expires upon the occurrence of any loss covered and the payment of the amount provided by the policy for such a loss. Appellant contended that the loss suffered by appellee was not within the coverage of the policy. Consequently, if it was right in its contention the policy continued in force as to the risks of accidental death, loss of limbs and loss of sight of the left eye.

The judgment is reversed and the cause dismissed.

      She testified that she later learned that this medication was for epilepsy.