dissenting. I disagree with the majority opinion from the first sentence to the end of the opinion. This is not a subrogation action at all. Appellee’s automobile was involved in a collision with a third party. The insured was unable to agree with the appellant insurer on the amount of the loss under the terms of its policy. Appellee brought suit against appellant for collision damages plus penalties, interest, attorney’s fees and costs. Subsequently the insured found there had been vandalism damage to the vehicle. The vandalism occurred at a body shop where the vehicle was stored for pending repairs. The complaint was amended to seek judgment in the amount of $11,117.36 for damages to the vehicle. The insurer filed a third party complaint in which it sought to recover judgment against the third party in any amount which appellee might obtain against the appellant. A third party complaint by appellant was brought pursuant to Ark. Stat. Ann. § 34-1001 (Repl. 1962) et seq. which is the Uniform Contribution Among Tortfeasors Act. Thereafter, the appellee filed an amendment to the complaint wherein it sought to recover the sum of $5,000 for loss of use of the automobile. At the time the case went to trial appellee’s claim was for $16,117.36 against the appellant and the joint tortfeasor, jointly and severally.
Farm Bureau was allowed to confess judgment in the amount of $4,084.52. Although the trial court indicated that appellant would be allowed to have judgment against the third party tortfeasor, such was never allowed. The jury assessed damages against the third party in the amount of $6,000. Appellant had been allowed to increase its confessed judgment by $1,297.88 which brought the total to $5,382.40. Appellant’s motion for an amendment of the judgment and to amend the pleadings to conform to the proof was denied. So far as the record is concerned the appellant has not paid out any money to its insured at this time. Therefore, there could have been no subrogation claim. The total judgment against appellant and the third party amounted to $ 11,382.40. This was almost $5,000 less than the amount sued for. When the appellant confessed judgment it had no standing to appeal. Appellant never sought subrogation until after the judgment was rendered. In the case of Cave v. Smith, 101 Ark. 348, 142 S.W. 508 (1912), we stated:
A party confessing judgment is estopped by his own voluntary act from questioning its correctness.
This statement still expresses the law as it relates to confession of judgment.
Prior to trial the subject of subrogation was never mentioned. At the last minute the appellant confessed judgment in an apparent effort to avoid any penalty, interest or attorney’s fees. It is obvious that the jury was attempting to make up the difference in appellant’s damages by granting a judgment against the third party in an amount which, when combined with the confessed judgment, would equal its loss. The majority opinion correctly quotes the law as it relates to subrogation claims. However, the action here was no more of a subrogation than it was a workers’ compensation claim. I think the trial court should be affirmed. In the alternative I would remand for a new trial because this one is rather fouled up as evidenced by the majority opinion.
I am authorized to say that Chief Justice Adkisson joins me in this dissent.