B. J. McAdams, Inc. v. Best Refrigerated Exp., Inc.

• Decision Date: 23 April 1979
• Docket Number: No. 2,No. 78-312,78-312,2
• Citation: 265 Ark. 519,579 S.W.2d 608
• Parties: B. J. McADAMS, INC., Appellant, v. BEST REFRIGERATED EXPRESS, INC., American Equipment Co., Inc., and Tex-Am Carriers, Inc., Appellees
• Court: Arkansas Supreme Court

Page 608

579 S.W.2d 608

265 Ark. 519

B. J. McADAMS, INC., Appellant, v. BEST REFRIGERATED EXPRESS, INC., American Equipment Co., Inc., and Tex-Am Carriers, Inc., Appellees.

No. 78-312.

Supreme Court of Arkansas, Division No. 2.

April 23, 1979.

Paul J. Nicholson, Little Rock, James W. Woods, North Little Rock, for appellant.

Laser, Sharp, Haley, Young & Huckabay, Little Rock, for appellees.

FOGLEMAN, Justice.

Each of the appellees, Best Refrigerated Express, Inc., American Equipment Co., Inc. and Tex-Am Carriers, Inc., filed a separate suit against appellant B. J. McAdams, Inc., seeking recovery of unpaid bills based upon trip leases of highway tractor and trailer rigs for the transportation of goods. The cases were consolidated for trial by agreement of the parties. Appellant defended on the ground that it was entitled to a set-off in the amount of $8,981.87, because that amount was owed it by American Beef Packers, Inc. Appellant contended that each of the appellees had acted as an agent for American Beef Packers, Inc., in the transactions on which the suits were based and that the leases inured to the benefit of American Beef Packers. The trial of the case to the court without a jury resulted in a judgment for each of the appellees in the amount sued for and a denial of the set-off.

Appellant's first point for reversal is the assertion that the trial court erred in failing to grant its motion for a continuance because of the absence of a material witness. Appellant admits that the granting or refusal of a continuance lies in the sound judicial discretion of the trial court, and that, on first review, it would appear that the court did not act arbitrarily or capriciously and that the weight of precedents is against its present contentions. It seeks to show abuse of discretion, however, on the basis that the defense required the establishment of the relationship of four separate entities who had dealt with appellant; that the cases were not consolidated as early as the trial judge had indicated in denying the motion; and that, although this material witness was outside the jurisdiction of the court, he had previously consented to appear, but it had become apparent to appellant only two hours before trial that he would not appear, so it was impossible for it to prepare an affidavit setting out the materiality and truth of the witness's potential testimony. Appellant further asserts that the absent witness was the "prime and possibly the only 'material' witness per se."

It certainly is not possible to sustain appellant's statement that the overall considerations in this case are such that denial of the continuance constituted a gross abuse of discretion. The oral motion by appellant's attorney was:

Your Honor, I would like to move that this case be continued on the basis that we have located a witness who is material, who is unable to be here today and who is necessary for putting on the defendant's case.

This is the complete record on the presentation of this motion to the trial judge. It would be arbitrary for this court to hold the trial court in abuse of discretion in denying the motion based upon the absence of a witness whose identity and whereabouts have never been disclosed, without the reason for his absence, the prospects of obtaining his testimony at a later date, the facts to be shown by his testimony, or appellant's efforts to obtain his attendance at the trial ever having been revealed to the trial judge. It may well be that appellant was not afforded sufficient time for the preparation of an extensive motion or affidavit. There was nothing to prevent the critical information from having been communicated to the trial court orally. To say the least, a statement of these facts could have been proffered for the record. There was no abuse of the trial court's discretion in this respect.

Appellant's other point for reversal is that the court's denial of a set-off was not supported by sufficient evidence and was against the clear preponderance of the evidence. Of course, we are not concerned with the question of preponderance. The scope of our review is to determine whether there was any substantial evidence to support the trial judge's holding. Appellant admits that this is an established rule, but asserts that this court has held on many occasions that a trial court's judgment will be set aside when the preponderance against it is great and it appears to be clearly wrong. Appellant cited only two cases as example. Not only do they fail to support its statements, both were chancery cases in which the review is do novo.

It was the contention of appellant that each of the appellees acted as an agent for American Beef Packers, Inc., in soliciting and negotiating the "trip lease" agreements for which these plaintiffs sought compensation in their separate actions, and that, for this reason, appellant was entitled to set off the indebtedness of American Beef Packers, Inc. against claims asserted in the suits brought by these agents in their own names. We need not pursue that question, because, assuming that appellant is correct, we find adequate evidentiary support for the judgment.

Appellant admits that there is no direct evidence of agency, but asserts that circumstances, such as the relationship of the parties, their conduct in reference to the subject matter of the contract, and previous instances of the alleged principal's treatment of each of the purported agents as an agent constitute proof of agency. It must be remembered, however, that appellant bore the burden of proving agency. Bell v. State, 93 Ark. 600, 125 S.W. 1020. We also held in Bell that agency could be proved by circumstantial evidence, if the facts and circumstances introduced in evidence are sufficient to induce in the minds of the jury the belief that the relation did exist and that the agent was acting for the principal in the transaction involved. Obviously, the evidence did not induce that belief in the mind of the fact-finder here. Appellant seizes upon a statement of the trial judge at the conclusion of the trial that "we have absolutely no evidence in this record that would be considered substantial that would cause the court to make a finding that American Beef Packers had any connection or control over the leased equipment," and argues that it was erroneous. We do not take this statement to mean that there was no evidence tending to establish agency. We do take it to mean that appellant had not met its burden of proof of agency when the test of circumstantial evidence was applied.

The normal practice in transactions of the sort involved here was established by the evidence. The lessor of tractor-trailer rigs for transportation of goods on the highways (appellees in this case) contacts the dispatcher of the lessee (appellant in this case) and negotiates a "trip lease" of equipment owned by the lessor, for one trip only. The dispatcher for the lessee records information given him by the lessor's dispatcher to be used in the preparation of the lease. The lessee's dispatcher prepares a lease from this information and mails it to the driver of the truck which is the subject of the lease, for signature by the driver.

Appellant's dispatcher testified that he prepared the leases in question. He said that it was customary for the dispatcher or driver to take the copy of the vehicle registration and "copy down who the vehicle was registered to" and the ...