{ "id": 1475859, "name": "Brown v. Marshall Ice & Electric Company", "name_abbreviation": "Brown v. Marshall Ice & Electric Co.", "decision_date": "1946-03-18", "docket_number": "4-7839", "first_page": "925", "last_page": "932", "citations": [ { "type": "official", "cite": "209 Ark. 925" }, { "type": "parallel", "cite": "193 S.W.2d 135" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "191 S. W. 2d 455", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1475799 ], "opinion_index": 0, "case_paths": [ "/ark/209/0418-01" ] } ], "analysis": { "cardinality": 650, "char_count": 13166, "ocr_confidence": 0.475, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.055273492778922635 }, "sha256": "2990be393c7a934fffbef5222292d979e3f9af564846692917cb3ca7821465af", "simhash": "1:56a1a60c2a487f5e", "word_count": 2261 }, "last_updated": "2023-07-14T17:58:59.179776+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Brown v. Marshall Ice & Electric Company." ], "opinions": [ { "text": "Griffin Smith, Chief Justice.\nW. E. Brown was awakened about two o\u2019clock the morning of March 15, 1945. His explanation of the cause was: \u201cI heard something that sounded like the Frigidaire running in the room where I was sleeping. . . . The light [fixture] in that room had a three-way connection, [with] the globe in the bottom, and it was cut off by the door in that switch; and I raised out [of bed] and couldn\u2019t tell whether it was in that; and fire was shooting out of those holes. I also heard this iloise in the radio, and went outside and pulled the [main] switch, like I always did \u2014 and [as the folks do, too, when we have trouble] like an electrical storm. \u2019 \u2019\nThe switch was left \u201coff\u201d during the remainder of the night; but the next morning at 9 o \u2019clock Brown went to Marshall Ice & Electric Company\u2019s office and talked with Herbert Wright, a repair man, asking that the trouble be adjusted. About five hours later Wright went to Brown\u2019s home, worked on the so-called \u201cthree-way\u201d drop and remarked, \u2018 \u2018 I think that is your trouble. \u2019 \u2019 The Brown family went to a neighbor\u2019s home after a lapse of twenty or thirty minutes following Wright\u2019s leave-taking, and soon observed smoke or fire coming from the roof or \u201cupper part\u201d of the house.\nBrown\u2019s testimony is that he heard a \u201chissing\u201d or \u201ccrackling\u201d noise in the attic. While the switch was in position to disengage the flow of current, Mrs. Thelma Cypert (Brown\u2019s daughter) climbed into the attic. She testified her father turned the switch on and \u201cI heard the wire over the front room \u2018crackle\u2019 and \u2018fry\u2019.\u201d\nBrown says he told Wright about the \u201chissing\u201d sound in the attic and asked him (Wright) if he didn\u2019t intend to go up there, but was assured the trouble was with the socket or its connections in the room where Brown saw the fire.\nIt was shown that although Wright was regularly employed by Marshall lee & Electric Company as \u201ctrouble shooter,\u201d he was permitted to do repair work on his own account and was allowed to retain charges for such. There is an absence of substantial testimony showing that Wright, in working for Brown or for anyone in similar circumstances, was accountable to the Electric Company. On the contrary, there is proof of non-participation. The jury was instructed to return a verdict for the Company, but it was permitted to determine whether the fire was occasioned because wiring or fixtures became unreliable, and whether Wright was guilty of negligence in failing to inspect the attic wiring. By its verdict the jury found in effect that the fire was caused from a short circuit, and that Wright was negligent.\nIt is not necessary to pass upon sufficiency of the evidence tending to show employer and employe relationship between the Company and Wright. When we decide, as we do, that the verdict against Wright for $900 was based upon speculation, other matters become unimportant.\nWright concedes that Brown mentioned to him what was thought to be a \u201ccrackling\u201d sound in the attic; but the fact remains that the \u2018 \u2018 drop,\u2019 \u2019 to which the1 three-way light socket was connected came through the ceiling, and Brown\u2019s definite testimony is that when he awoke during the electric storm fire was coming from the three apertures, indicating that each was faulty, or that the \u201cdrop\u201d connection or receptacle wiring was broken or loose. But Brown goes further and says there was noise in his radio, and that \u201cfire was shooting out of it.\u201d\nThe terms \u201ccrackling,\u201d \u201cfrying,\u201d \u201chissing,\u201d etc., are clearly intended to convey the impression that a short circuit of considerable proportions had occurred, from which fire could, and naturally would, spread. The evidence, as abstracted, does not show how the radio and Frigidaire were connected. The latter operates from a motor and requires appreciably more current than an ordinary incandescent light bulb. Such installations are frequently wired for 220 volts as distinguished from 110 volts usually utilized for incandescent lighting. Neither Wright nor Marshall Ice & Electric Company had anything to do with original installation of the wiring system.\nBrown\u2019s assertion that the only thing Wright did was to examine \u201cthe light socket in the front room\u201d was supported by his wife\u2019s testimony. The latter, on cross-examination, made the statement that \u201c. . . during the time Mr. Wright was [at our house] we heard no sparkling in the attic.\u201d\nThe evidence shows that when Wright arrived the main control switch was \u201c off \u201d and it was not turned on again until Brown, at Wright\u2019s direction, closed it after certain repairs had been made on the drop or connections in the living room where fire was seen to come from the fixture openings.\nThe defendants requested instructed verdicts on the ground that there was no substantial evidence to show that the fire originated because of faulty wiring and that Wright was not negligent. Brown\u2019s testimony that after Wright adjusted the main-room \u201cdrop\u201d and the current was turned on, he did not thereafter hear the attic noise is significant. He contends, however, that in spite of the admitted adjustment of the drop and at least temporary elimination of the noise complained of, Wright and the Electric Company should be held liable for the consequent loss \u2014 Wright because he failed to go into the attic, and the Company as Wright\u2019s principal.\nIt has been consistently held that speculation may not be substituted for fact or reasonable inferences, and that a judgment so predicated cannot stand. In the instant case it is not shown that Wright held himself out as an expert, or as a guarantor of results. But this would not be necessary if the fire resulted from his negligence. In its final aspect the situation is that Brown, his wife, and his daughter, thought they heard a \u201ccrackling\u201d sound in the attic. Other expressions from the same witness are that the noise appeared to come from a point near where the main-room drop came through the ceiling. Admittedly there was trouble with this drop, and admittedly it was ostensibly repaired, for Mrs. Brown testified that while Wright was in their home and presumptively after he had worked with the \u2018 \u2018drop\u2019\u2019 and fixture the \u201ccrackling\u201d could not be heard. The system functioned efficiently after the \u201cdrop\u201d was repaired. There was no further \u2018 \u2018 fire, \u201d \u201c crackling \u201d or \u201c frying. \u2019 \u2019\nDid Wright, as a reasonably prudent man, have a right to think that the difficulty had been, overcome While the answer to that question would seemingly absolve him, it is not necessarily reached in the determination of this case because origin of the fire was purely speculative. That being true, the defendants were entitled to directed verdicts. Williams, Administrator, v. Lauderdale, ante, p. 418, 191 S. W. 2d 455.\nThe judgment against Wright is reversed and the cause is dismissed. The instructed verdict in favor of Marshall Ice & Electric Company is affirmed.", "type": "majority", "author": "Griffin Smith, Chief Justice." }, { "text": "Smith, J.\n(dissenting). Under the direction of the court a verdict was returned in favor of the Electric Company, but the liability of Wright, who designated himself as the Company\u2019s \u201ctrouble shooter,\u201d was submitted to the jury, under instructions which were not only not objected to, but are not abstracted in either brief. There is a conclusive presumption,- therefore, that the case was submitted to the jury under correct instructions. : I | '\"j\nThe majority do not distinguish between the liability of the trouble shooter, and that of the company, and I shall not do so, as the majority hold that neither is liable.\nIt confuses the issue in this case to consider whether the company or its employee were insurers, as no such contention was made or submitted to the jury. Divested of all extraneous issues the question for decision is whether the testimony is sufficient to sustain the finding that the fire was occasioned by Wright\u2019s negligence, or would have been averted had Wright not been negligent, and this, I think, was a question of fact which should have been, and was, submitted to the jury.\nIn tliis, as. in all other cases, we give the testimony .tending to sustain-the judgment in'favor of appellee its highest probative value in testing its legal sufficiency to sustain the verdict, but here Wright\u2019s own testimony, in my opinion, made a case for the.jury, .It was to the following effect. He is a salaried employee of the Electric Company, and his duties are to maintain and repair the machinery, lines and equipment of the company. Other work done by him is done on his own account, and the company has no interest in it, as the responsibility of the company ceases at the meter. We copy from Wright\u2019s testimony the following statement: \u201cI examined the trouble as I saw it. Brown told me about his daughter going up into the attic and hearing noises. By my experience of 15 or 20 years I did not suppose there would.be any trouble. After I had examined the light socket and fixed it I told Brown that there was no other danger. I didn\u2019t think there was any other danger. He didn\u2019t ask me to go in the attic, but asked me what I thought about it. I \u2022heard no noises. It would have blown a fuse if there had been a short sufficient.to cause trouble, if the fuse were proper size. I made the best inspection under the information that was given me which was possible. I made a reasonable and honest investigation.\u201d\nBut other testimony supports the finding that Wright did not make a reasonable or intelligent investigation, and certainly not a sufficient investigation. Brown was awakened in the middle of the night by flashes of light, from the socket in his bedroom, and by a cracking noise in the attic, and he disconnected the switch which conducted the electric current into his house, and it was not reconnected until -after Wright arrived at Brown\u2019s home. Wright came to Brown\u2019s home in pursuance of his employment, to repair known defects, .and was told where they were, one in the light socket, the other-in the attic. Wright repaired one defect but made no examination of-the other, because in his opinion the trouble which he found in the light socket would account for the trouble in the attic. It is certain, however, that the trouble in the light socket, which was repaired, did not account for the trouble in the attic, where the fire originated. We think this testimony \u201cwarranted the. jury in finding that Wright did not exercise the care which, a reasonably prudent man would have exercised and we think the finding was warranted, indeed is inescapable, that \"the failure to ascertain and remedy the trouble in the attic was the cause of the fire.\nThe law of the case is stated in \u00a7 100 of the Chapter on Electricity, 18 Am. Jur. 496, as follows: \"The negligence of an employee of an electric company in reporting that a defect which he had been sent to repair had been remedied when in fact it had not been is imputable to the company, rendering it liable for an injury caused by such defect.\u201d We do not inquire whether Wright was acting for himself alone, and not for the company, as the majority hold that-there is no liability in either case. But it appears to be an elementary statement of the law that Wright is responsible for the consequence of his own negligence, whether that negligence is imputed to the company or not.\nOf course, to sustain the verdict in this, case the testimony must show not only that Wright was negligent, but also that this negligence was the proximate caus\u00e9 of the injury, and the testimony to support that finding must not be based upon mer\u00e9 speculation or conjecture. Now no one saw the fire start, which burned Brown\u2019s house, but if that requirement is to be imposed, electric companies have been granted immunity for all practical purposes from the negligence of their employees.\nBut is it mere speculation to say that the defect in the attic to which Wright\u2019s attention was specifically called caused the fire? We think the jury was warranted in finding that the defect in the attic caused the fire, and that it is not a matter of conjecture and speculation to so find. . W\u00e9 have here a cause and an effect, whichlogically followed. After the socket had been repaired, the switch was restdred so that the electric current would enter the house. Brown and his wife went to the home of a neighbor to get some shrubs to plant, and in from 20 to 30 minutes after leaving their house, they discovered it was burning. The fire was in the attic. The defect which Wright did not repair was a known cause and no other cause was shown or suggested, and if there is any speculation about the origin of the fire, the speculation is that it was not caused by the known defect, but might have originated from some other cause of which there was no evidence. The sequence of events refutes the speculative theory that there was any cause other than the defective wiring in the attic, and in my opinion, the case should not be dismissed, and I therefore dissent and am authorized to say that Justices McFaddin and Millwee concur in that view.", "type": "dissent", "author": "Smith, J." } ], "attorneys": [ "F. J. Henley, for appellant.", "W. F. Beeves and T. J. Gentry, for appellee." ], "corrections": "", "head_matter": "Brown v. Marshall Ice & Electric Company.\n4-7839\n193 S. W. 2d 135\nOpinion delivered March 18, 1946.\nF. J. Henley, for appellant.\nW. F. Beeves and T. J. Gentry, for appellee." }, "file_name": "0925-01", "first_page_order": 941, "last_page_order": 948 }