Pine Ford, Inc. v. Shankle

528 S.W.2d 392, 258 Ark. 661, 1975 Ark. LEXIS 1685

• Court: Supreme Court of Arkansas
• Decided: October 20, 1975
• Docket: 75-77
• Status: Published

Opinions

George Rose Smith, Justice.

On the afternoon of February 7, 1974, the appellee left his pick-up truck at the appellant’s service department, for repairs. During the night the shop burned, destroying the truck and its contents. Shankle brought this action for damages, alleging both specific acts of negligence and res ipsa loquitur. Moon Distributors v. White, 245 Ark. 627, 434 S.W. 2d 56 (1968). In appealing from a $2,924.50 verdict for the plaintiff, Pine Ford contends that the case should not have been submitted to the jury and that the court erred in admitting certain testimony.

The court correctly submitted the case to the jury, upon both theories. In a similar situation we have held the doctrine of res ipsa loquitur to be applicable. Megee v. Reed, 252 Ark. 1016, 482 S.W. 2d 832 (1972). There was also adequate proof of specific negligence. A former Pine Ford employee testified that oily rags were allowed to accumulate at the shop, that gasoline was kept in an open container, that used oil was poured into a drain with bars across it, and that there were overhead gas heaters with pilot lights. There was also proof that a city ordinance governing the storage of oily waste and rags was violated. Such testimony presented an issue for the jury with regard to specific negligence.

Upon the second point the city fire chief testified as an expert witness that he examined the premises immediately after the fire but could not determine with any certainty the cause of the fire. The trial judge withdrew that testimony from the jury’s consideration, adding: “I’ve taken from the jury’s consideration this man’s opinion that the fire was of undetermined origin or anything else about his opinion as to the cause of the fire.”

The court was mistaken in his assumption that all testimony about the cause of a fire is inadmissible. In Williams v. Lauderdale, 209 Ark. 418, 191 S.W. 2d 455 (1945), we said that the cause of a fire is ordinarily not a matter upon which an expert opinion is admissible, but we stated that the reason for the rule is that expert testimony should be excluded when the issue is one about which ordinary jurors are fitted to draw correct conclusions from the evidence. Thus we also recognized by implication the possibility that in some situations expert opinion about the cause of a fire would be admissible.

Neither aspect of the rule is really present in the case at bar, for the fire chief testified that he could not determine with certainty the cause of the fire. That was not an expression of opinion but a statement of fact, rather like the one considered in Chicago Mill & Lbr. Co. v. Ross, 99 Ark. 597, 139 S.W. 632 (1911). Such a statement of fact is admissible and should not have been excluded in the case at bar, because counsel for the defendant was entitled to use it in arguing his case to the jury.

Reversed.

Fogleman, J., concurs. Roy, J., not participating.