{ "id": 6136359, "name": "DEFFENBAUGH INDUSTRIES and Travelers Insurance Company v. Earl ANGUS", "name_abbreviation": "Deffenbaugh Industries & Travelers Insurance v. Angus", "decision_date": "1992-07-08", "docket_number": "CA 91-247", "first_page": "24", "last_page": "34", "citations": [ { "type": "official", "cite": "39 Ark. App. 24" }, { "type": "parallel", "cite": "832 S.W.2d 869" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "27 Ark. App. 159", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139506 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/27/0159-01" ] }, { "cite": "28 Ark. App. 201", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139513 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/28/0201-01" ] }, { "cite": "33 Ark. App. 25", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6649140 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/33/0025-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-401", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "15 Ark. App. 226", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141059 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/15/0226-01" ] }, { "cite": "269 Ark. 789", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712533 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0789-01" ] }, { "cite": "199 La. 720", "category": "reporters:state", "reporter": "La.", "case_ids": [ 2909864 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/la/199/0360-01" ] }, { "cite": "219 So.2d 154", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9795055 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/so2d/219/0154-01" ] }, { "cite": "383 Mich. 235", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1920698 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/mich/383/0235-01" ] }, { "cite": "174 N.W.2d 783", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1969, "opinion_index": 0 }, { "cite": "152 Ga. App. 566", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 809548 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ga-app/152/0566-01" ] }, { "cite": "263 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "223 Neb. 236", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2908301 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/neb/223/0236-01" ] }, { "cite": "32 Ark. App. 29", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6644191 ], "weight": 4, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/32/0029-01" ] }, { "cite": "27 Ark. App. 42", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136646 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/27/0042-01" ] }, { "cite": "237 Ark. 560", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1738028 ], "weight": 4, "year": 1964, "opinion_index": 0, "case_paths": [ "/ark/237/0560-01" ] }, { "cite": "30 Ark. App. 46", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136980 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/30/0046-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-704", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(c)(3)" } ], "opinion_index": 0 }, { "cite": "15 Ark. App. 226", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141059 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "229" }, { "page": "880" } ], "opinion_index": 1, "case_paths": [ "/ark-app/15/0226-01" ] }, { "cite": "269 Ark. 789", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712533 ], "weight": 3, "year": 1980, "opinion_index": 1, "case_paths": [ "/ark/269/0789-01" ] }, { "cite": "237 Ark. 560", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1738028 ], "weight": 2, "year": 1964, "opinion_index": 1, "case_paths": [ "/ark/237/0560-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-704", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(c)(2) and (4)" } ], "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 11-9-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(4)" } ], "opinion_index": 1 }, { "cite": "8 Ark. App. 192", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140230 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "843" } ], "opinion_index": 1, "case_paths": [ "/ark-app/8/0192-01" ] }, { "cite": "42 A.L.R.3d 385", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1972, "pin_cites": [ { "page": "391-92" } ], "opinion_index": 1 }, { "cite": "262 Ark. 417", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675853 ], "weight": 2, "year": 1977, "opinion_index": 1, "case_paths": [ "/ark/262/0417-01" ] }, { "cite": "223 Ark. 182", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1650366 ], "weight": 2, "year": 1954, "opinion_index": 1, "case_paths": [ "/ark/223/0182-01" ] }, { "cite": "292 Ark. 219", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871237 ], "weight": 2, "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/292/0219-01" ] } ], "analysis": { "cardinality": 927, "char_count": 19642, "ocr_confidence": 0.905, "pagerank": { "raw": 5.701608658567684e-07, "percentile": 0.9496542076391327 }, "sha256": "6c52a38ae2273f7aef5844fbc0eb5fbfc032c20e162a2878504445f554c1a9e5", "simhash": "1:47d46d8c2c1c8118", "word_count": 3304 }, "last_updated": "2023-07-14T21:16:17.678789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft, C.J., Danielson, J. and Rogers, J., dissent.", "Danielson and Rogers, JJ., join in this dissent." ], "parties": [ "DEFFENBAUGH INDUSTRIES and Travelers Insurance Company v. Earl ANGUS" ], "opinions": [ { "text": "James R. Cooper, Judge.\nDeffenbaugh Industries appeals from the Workers\u2019 Compensation Commission\u2019s decision finding compensable the injuries which Earl Angus sustained when a tornado totally destroyed the mobile home in which he lived on his employer\u2019s premises. The full Commission affirmed the finding of the administrative law judge that Mr. Angus\u2019 injuries \u201carose out of and in the course of\u2019 his employment. The appellant claims the Commission erred in so finding. We affirm.\nEarl Angus, the appellee, was manager of the appellant\u2019s facility in West Memphis, which was engaged in the business of collecting and reselling waste oil. The business operated 24 hours a day, seven days a week, and one condition of Mr. Angus\u2019 employment was that he reside on the premises, thus making himself available at all times. He obtained a zoning variance from the city of West Memphis which allowed a residence in a commercial area, and the minutes of the council meeting in which he was granted the variance stated that it was a \u201ctemporary permit for one year for security reasons.\u201d His employer purchased a mobile home and enclosed it by a fence on the premises of the waste oil facility. The rental agreement signed by the parties stated that \u201cthis agreement is being entered into by lessor because of lessee\u2019s employment relationship with lessor,\u201d and that \u201cit is further agreed that the quarters provided to lessee by lessor are furnished for the convenience of the lessor and that the lessee is required to accept such lodging on the business premises of the lessor as a condition of employment of lessee by lessor.\u201d The appellee and his family lived in the mobile home, and though there was an office in another building from which Mr. Angus conducted business, there was a telephone installed in the mobile home which allowed truck drivers to contact him to notify him of their anticipated arrival.\nOn the night of December 14,1987, Mr. Angus went to the residence while waiting for a truck driven by Billy Harris to arrive. He had been there approximately fifteen minutes, eating dinner, when a tornado swept through the West Memphis area. It struck the mobile home, killing Mrs. Angus and severely injuring Mr. Angus and his daughter. Mr. Harris arrived minutes after the storm and discovered the Angus family.\nAfter a de novo review, the Commission affirmed the decision of the administrative law judge that Mr. Angus\u2019 injuries were compensable. It found that the constant presence of Mr. Angus on the premises was \u201cpartially necessitated for security purposes\u201d and by the fact that he \u201chad numerous duties which had to be performed as needed . . . twenty-four hours a day, seven days every week.\u201d At the time that the tornado struck, Mr. Angus had just finished performing various duties and was expecting, within thirty minutes, a truck which he would be required to assist in unloading. Thus, said the Commission, his injuries arose out of and in the course of his employment.\nOn appeal from the Workers\u2019 Compensation Commission, we review the evidence in the light most favorable to the Commission\u2019s findings and affirm if they are supported by substantial evidence. Tiller v. Sears, Roebuck & Company, 27 Ark. App. 159, 767 S.W.2d 544 (1989). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. San Antonio Shoes v. Beatty, 28 Ark. App. 201, 771 S.W.2d 802 (1989). In such a case, the claimant has the burden of proving by a preponderance of the evidence that his claim is compensable, i.e., that his injury was the result of an accident that arose in the course of his employment and that it grew out of or resulted from the employment. Wolfe v. City of El Dorado, 33 Ark. App. 25, 799 S.W.2d 812 (1990).\nIn order for an employee\u2019s disability to be compensable, he must prove that he sustained an injury \u201carising out of and in the course of his employment.\u201d Ark. Code Ann. \u00a7 11-9-401 (1987); Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). The phrase \u201carising out of the employment\u201d refers to the origin or cause of the accident. Id. The phrase \u201cin the course of\u2019 the employment refers to the time, place and circumstances under which the injury occurs. J&G Cabinets v. Hennington, 269 Ark. 789 (Ark. App. 1980).\nThe appellant first argues that the appellee was not injured \u201cin the course and scope of\u2019 his employment because he was not performing any job duties at the time he was injured, but rather was in his home eating dinner with his family. Nevertheless, Mr. Angus was a resident employee, on call 24 hours a day, seven days a week. Professor Larson states that in this situation \u201cthe entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment.\u201d 1A Larson, Law of Worker\u2019s Compensation \u00a7 24.00 (1990). The controlling question as to whether an injury occurs \u201cin the course of\u2019 the employment is whether the activity is reasonably expect-able so as to be an incident of the employment, and thus, a part of it. J&G Cabinets, supra. Because one could reasonably expect an employee who was continuously on call and was required to live on the premises to, at some point, sit down to eat dinner, we hold that the Commission\u2019s decision that Mr. Angus was injured while \u201cin the course of\u2019 his employment is supported by substantial evidence.\nThe appellant next argues that the Commission erred in declining to apply the positional risk doctrine. It discussed the doctrine but noted that Arkansas courts have not expressly adopted the positional risk doctrine. According to Larson, the doctrine is a substitute for the \u201carising out of\u2019 test, and he states:\nAn important and growing number of courts are accepting the full implications of the positional-risk test: An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured. It is even more common for the test to be approved and used in particular. situations. This theory supports compensation, for example, in cases of stray bullets, roving lunatics, and other situations in which the only connection of the employment with the injury is that its obligations placed the employee in a particular place at the particular time when he is injured by some neutral force, meaning \u201cneutral\u201d neither personal to the claimant nor. distinctly associated with the employment.\n1 A. Larson, The Law of Workmen\u2019s Compensation, \u00a7 6.50 (1990). The only requirement to be met before positional risk may be applied is that the risk which causes the injury must be a neutral one. A tornado is an Act of God, and Larson states that Acts of God are classified as \u201cneutral risks,\u201d meaning that they are neither personal to the claimant nor distinctly associated with the employment. A. Larson, The Positional Risk Doctrine in Workmens\u2019 Compensation, 1973 Dulce L.J., 761.\nAt least five states have adopted the positional risk doctrine in cases involving injuries due to tornados. They are as follows: Louisiana (Harvey v. Caddo DeSoto Cotton Oil Company, Inc., 199 La. 720, 6 So.2d 747 (1942)); Mississippi (Wiggins v. Knox Glass, Inc., 219 So.2d 154 (1969)); Michigan (Whetro v. Awkerman, 383 Mich. 235, 174 N.W.2d 783 (1969)); Georgia (National Fire Insurance Company v. Edwards, 152 Ga. App. 566, 263 S.E.2d 455 (1979)); and Nebraska {Nippert v. Shinn Farm Construction Company, 223 Neb. 236, 388 N.W.2d 820 (1986)). Eleven states have either specifically adopted the positional risk doctrine in \u201cneutral risk\u201d situations or applied its principles without expressly adopting it.\nArkansas cases have either discussed the positional risk doctrine or have reached conclusions consistent with the reasoning of the doctrine. For instance, in Kendrick v. Peel, Eddy, & Gibbons Law Firm, 32 Ark. App. 29,795 S.W.2d 365 (1990), we stated:\nAlthough the positional risk doctrine has not yet been applied in Arkansas to sustain an award of compensation, our cases have indicated that the doctrine would be applied in a proper case. In Pigg v. Auto Shack, 27 Ark. App. 42, 766 S.W.2d 36 (1989), we cited the case of Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W.2d 468 (1964), where compensation was awarded to a claimant who was injured at work by a gust of wind which \u2018lifted appellee into the air, carried him approximately seventy-five feet, and dropped him on the concrete apron.\u2019 We said in PiggthaX while the words \u2018positional risk\u2019 were not used in Parrish, that case represents the type of fact situation where the positional risk doctrine arises.\n32 Ark. App. at 31 -32. Kendrick concerned an employee who was killed by an acquaintance. We found the risk to be personal rather than neutral and we declined .to apply the positional risk doctrine.\nAgain we refer to the ease of Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W.2d 468, as being the type of fact situation to which the positional risk doctrine would be appropriately applied. See Kendrick, supra. The employee was picked up by a gust of wind and dropped onto concrete while securing his employer\u2019s property. The Supreme Court applied the \u201cincreased risk\u201d test in holding that the injury was compensable because the employment:\nplaced him at that moment in a more dangerous situation insofar as the \u2018Act of God\u2019 was concerned than that to which the general public in that vicinity was subjected; for the general public was not required to go outside at such a time but could remain in places of safety. Id. at 568.\nIn urging us to apply the positional risk doctrine, the appellant contends Mr. Angus\u2019 injuries are not compensable because his employment did not expose him to a greater degree of risk than other members of the general public in the same vicinity. (Several people in the West Memphis area were injured or killed by this storm.) Though the appellant contends that it is applying \u201cpositional risk,\u201d this approach is commonly referred to as the \u201cincreased risk test,\u201d and, as applied by the appellant, it does away with our two-pronged test of \u201carising out of and in the course of\u2019 the employment. The appellee also urges us to adopt the positional risk doctrine, suggesting a contrary result. He argues that but for the conditions and obligations imposed by his employment, he would not have been placed in the position to be injured by the \u201cneutral risk.\u201d This is a correct application of the \u201cpositional risk test.\u201d We see no need to draw fine distinctions between types of \u201cneutral risks.\u201d A tornado or windstorm is no less \u201cneutral\u201d than a roving lunatic or a stray bullet.\nWe now join those courts which accept the positional risk doctrine to provide compensation for employees who are injured by neutral risks. The question of who should bear the burden of the costs of such an injury is a policy consideration, and use of the positional risk doctrine where the risk is neutral places the risk of loss on the employer, the party most able to sustain such a loss. This, we believe, is in keeping with the spirit of our workers\u2019 compensation law.\nWe have repeatedly held that the Workers\u2019 Compensation Act is to be liberally construed in favor of the claimant in accordance with the Act\u2019s remedial purpose. Pinkston v. General Tire & Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990); Ark. Code Ann. \u00a7 11-9-704(c)(3). Contrary to the dissenting judge\u2019s opinion, we are not abandoning our prior case law requiring a claimant to prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. We are simply liberally construing the statute in an extremely narrow class of cases, those which involve neutral risks. In applying the doctrine to the case at bar, Mr. Angus\u2019 injuries \u201carose out of\u2019 his employment because \u201cbut for\u201d the employment, he would not have been in his home on his employer\u2019s premises at the particular time at which the tornado hit the area. We hold that because substantial evidence supports the Commission\u2019s conclusion that Mr. Angus\u2019 injuries arose out of and in the course of his employment, it must be affirmed.\nAffirmed.\nCracraft, C.J., Danielson, J. and Rogers, J., dissent.\nWe note that though Pigg v. Auto Shack did not adopt or apply the positional risk doctrine, discussion of it in the opinion incorrectly states that when applying the doctrine, it is a substitute for \u201cin the course of\u2019 the employment. The doctrine actually supplies a presumption that the injury \u201carose out of\u2019 the employment.\nSee John F. Scarzafava, Areas of Changing Interpretation: The Positional Risk Doctrine 3 Workmen\u2019s Compensation L. Rev. 204, 206 (1976).", "type": "majority", "author": "James R. Cooper, Judge." }, { "text": "George K. Cracraft, Chief Judge,\ndissenting. I respectfully dissent because I am of the very strong opinion that the \u201cpositional risk\u201d doctrine has no place within the framework of our Workers\u2019 Compensation Act. In my judgment, application of the doctrine to injuries resulting from \u201cActs of God\u201d ignores clear and unambiguous sections of our Worker\u2019s Compensation Act, and many years of case law interpreting and applying those sections.\nThe only \u201cinjuries\u201d for which workers\u2019 compensation benefits are provided are those that are sustained in the course of the employment and that arise out of it. Ark. Code Ann. \u00a7\u00a7 11-9-102(4); 11-9-401 (a)(1) (1987). \u201cIn the course of the employment\u201d refers to the time, place, and circumstances under which an injury occurs. The phrase \u201carising out of the employment\u201d refers to the origin or cause of the accident. J&G Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ark. App. 1980). In order for an injury to arise out of the employment, it must be a natural and probable consequence or incident of the employment and a natural result of one of its risks. Id. It is so well established as to require no citation that the burden of proving compen-sability rests squarely upon the claimant. More recent legislation provides that the Commission shall determine every issue on the basis of whether the party having the burden of proof on the issue has established it by a preponderance of the evidence; in so doing, the Commission must weigh the evidence impartially and without giving the benefit of doubt to any party. Ark. Code Ann. \u00a7 11-9-704(c)(2) and (4) (Supp. 1991).\nSince there was evidence that the claimant in this case was required to be on duty twenty-four hours a day, the prevailing opinion correctly approves the Commission\u2019s finding that the claimant was within the course of his employment at the time of the injury. That finding, standing alone, however, is insufficient to sustain an award. The claimant was also required to establish that his injury arose out of and was causally connected with some risk incident to the employment.\nIn this case, the affirming judges are dispensing with the need for proof of this second vital and statutorily-required element and applying a doctrine that they say is \u201ca substitute for the \u2018arising out of test.\u201d Their application of this doctrine is based on a finding that the injury resulted from a \u201c \u2018neutral risk[],\u2019 meaning . . . [one] neither personal to the claimant nor distinctly associated with the employment.\u201d (Emphasis added.) In my opinion, this is a complete abandonment of our prior rulings that \u201c[t]here must be affirmative proof of a distinctive employment risk as the cause of the injury.\u201d See, e.g., Gerber Products v. McDonald, 15 Ark. App. 226, 229, 691 S.W.2d 879, 880 (1985); Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S.W.2d 841, 843 (1983).\nIn addition, the affirming judges reject a well-reasoned rule, accepted and applied to \u201cAct of God\u201d cases by the vast majority of our sister states. The general rule applicable to injuries resulting from tornadoes and windstorms is set forth in 99 C. J.S Workers\u2019 Compensation \u00a7 250 (1958), as follows:\nInjuries sustained by employees as the result of windstorms or tornadoes are not ordinarily compensable where such employees are not, as such, exposed to the risk of such harm to a greater degree than the public generally in the same vicinity, but compensation may be had where the injured employee is by reason of his employment specially exposed to injury from such causes. [Emphasis added. Footnotes omitted.]\nThe same rule is stated to be one of general application in 82 Am. Jur. 2d Workmen\u2019s Compensation \u00a7 327 (1976). In J. Sandoval, Annot., Workmen\u2019s Compensation: Injury or Death Due to Storms, 42 A.L.R.3d 385, 391-92 (1972), the author states:\nGenerally, most jurisdictions have taken the view that to recover compensation for an injury arising out of and in the course of employment, there must be a causal connection between such injury and the employment. Under this view, the courts have generally recognized the rule, known as the \u201cpeculiar\u201d or \u201cincreased risk\u201d rule, that if an employee by reason of his duties is exposed to a special or peculiar danger from the elements \u2014 that is, one greater than that to which other persons in the community are exposed \u2014 and if an unexpected injury is sustained by reason of the elements, a causal connection is thereby established between the employment and the injury and therefore the injury constitutes an accident arising out of and in the course of employment within the workmen\u2019s, compensation acts. [Emphasis added.]\nIn support of the statements that this is a majority view, the author lists cases from various jurisdictions that have held in accordance with it. A number of other cases so holding are contained in footnotes in 1 A. Larson, Law of Workmen\u2019s Compensation \u00a7 8.21(a) (1990). Indeed, as the prevailing opinion notes, our own supreme court has applied this same majority rule. See Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W.2d 468 (1964).\nI cannot agree that this majority rule places any undue burden on workers or is somehow contrary to the spirit or purposes of our Act. It requires no more than that a worker prove that the character of his employment, or that the place at which that employment required that he be, was such as would intensify the risk of injury from extraordinary natural causes. In my judgment, this rule is much more in keeping with the purposes of our Workers\u2019 Compensation Act than is the positional risk doctrine; at least the majority rule complies with the legislative mandate that a worker prove a causal connection between his injury and some risk of his employment. Clearly, our Act was never intended to serve as general accident or health insurance. There is no presumption that a claim comes within the provisions of the; Act, and liberal construction of the Act in no way dispenses with the need for proof of compensability. See Crouch Funeral Homev. Crouch, 262 Ark. 417, 557 S.W.2d 392 (1977); Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S.W.2d 834 (1954). Had the legislature intended to create an exception for cases involving Acts of God, it might easily have so provided.\nFinally, notwithstanding the statement in the prevailing opinion that \u201c[w]e now join those courts which accept the positional risk doctrine\u201d, I note that affirmances by an evenly divided court, such as this case, are not entitled to precedential weight. France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987).\nDanielson and Rogers, JJ., join in this dissent.", "type": "dissent", "author": "George K. Cracraft, Chief Judge," } ], "attorneys": [ "Michael E. Ryburn, for appellant.", "Schieffler Law Firm, by: Edward H. Schieffler, for appellee." ], "corrections": "", "head_matter": "DEFFENBAUGH INDUSTRIES and Travelers Insurance Company v. Earl ANGUS\nCA 91-247\n832 S.W.2d 869\nCourt of Appeals of Arkansas En Banc\nOpinion delivered July 8, 1992\nMichael E. Ryburn, for appellant.\nSchieffler Law Firm, by: Edward H. Schieffler, for appellee." }, "file_name": "0024-01", "first_page_order": 48, "last_page_order": 58 }