Bryant Truck Line v. Nance

• Decision Date: 16 May 1938
• Docket Number: No. 4-5009.,4-5009.
• Citation: 116 S.W.2d 1047
• Parties: BRYANT TRUCK LINE, Inc., v. NANCE.
• Court: Arkansas Supreme Court

116 S.W.2d 1047

BRYANT TRUCK LINE, Inc., v. NANCE.

No. 4-5009.

Supreme Court of Arkansas.

May 16, 1938.

Appeal from Circuit Court, White County; W. D. Davenport, Judge.

Suit by W. A. Nance against the Bryant Truck Line, Inc., for injuries sustained while the plaintiff was assisting in unloading a safe from a truck belonging to the defendant. From a judgment for the plaintiff, the defendant appeals.

Reversed, and remanded for new trial.

John S. Mosby, of Lepanto, for appellant.

Gordon Armitage, of Searcy, for appellee.

FRANK G. SMITH, Justice.

Appellee recovered a judgment to compensate an injury sustained while assisting in unloading a safe consigned to Neal Peebles from a truck belonging to the Bryant Truck Line, Inc., driven by Henry Bennett.

Appellee testified that when the truck was driven to Peebles' place of business and backed against the curb to be unloaded he was directed by his employer, Peebles, to assist Bennett in unloading the safe. He proceeded, under Bennett's direction, to assist, when through the negligent manner in which Bennett directed and performed the work, he sustained a serious injury. Testimony on behalf of appellant was to the effect that appellee was a mere volunteer in rendering such services as he in fact performed, and that his injury was the result of his own negligence.

The instructions given on behalf of appellee, notwithstanding the specific objections of appellant, assumed the existence of the relation of master and servant between appellee and the truck line. This was error, as the testimony was in sharp conflict upon this issue. The question of fact whether there had been an emergency employment of appellee should have been submitted to the jury. The law of this subject was declared in the opinion by Chief Justice Hart in the case of Henry Quellmalz Lumber & Mfg. Co. v. Hays, 173 Ark. 43, 291 S.W. 982. He there quoted from section 85 of the chapter on Master and Servant in 18 R.C.L. p. 58, as follows (page 983): "`If an unforeseen contingency or emergency arises, rendering it necessary in the employer's interest that his employee have temporary assistance, the law implies authority to procure such necessary help; and a substitute or assistant procured under these circumstances is entitled to the same measure of protection as any other employee in the service. It is the emergency that gives rise to the implied authority, and if it does not in fact exist then neither does the implication of authority...