Casteel v. Yantis-Harper Tire Co.

• Decision Date: 01 June 1931
• Docket Number: 17
• Parties: CASTEEL v. YANTIS-HARPER TIRE COMPANY
• Court: Arkansas Supreme Court

39 S.W.2d 306

183 Ark. 912

CASTEEL v. YANTIS-HARPER TIRE COMPANY

No. 17

Supreme Court of Arkansas

June 1, 1931

Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge; reversed.

Judgment reversed, and cause remanded.

Simmons & Lister, for appellant.

Daily & Woods, for appellee.

OPINION

BUTLER, J.

At about seven P. M. on Tuesday, November 12, 1929, the appellant was standing in the safety zone at 11th Street and Garrison Avenue in the city of Fort Smith waiting for a street car. Several other persons were there also, among these being Walter Hager, who became a witness in plaintiff's behalf. While standing in this safety zone through which automobiles were not supposed to drive, a car ran around another car, and, traveling at a speed of from 25 to 30 miles an hour, negligently drove through the safety zone, striking the appellant, seriously injuring her as well as a number of other persons.

Appellant brought suit against S. B. Harper and Marshall Yantis partners in business, operating under the firm name Of Yantis-Harper Tire Company, and Robert Tolliver, a colored employee of the firm, on the theory that the car inflicting the injuries belonged to the partnership and was driven by the defendant, Tolliver, while engaged in his employment as the servant of the partnership. Tolliver denied striking the appellant, and, in addition to this defense, Yantis-Harper Tire Company defended upon the ground that Tolliver was not in their service at the time of the injury, if in fact he caused such injury.

On the trial of the cause in the court below a verdict was returned under the direction of the court against the appellant, the plaintiff, in favor of defendants, Yantis and Harper. After the direction of the court, and before the submission, plaintiff took a nonsuit as to Tolliver and prosecutes her appeal from the verdict and judgment in the court below, assigning as error the action of the court in directing a verdict against her.

The action of the court was doubtless predicated on the theory that the evidence failed to show either that the car causing the injury was operated by Tolliver, or, if so, that, Tolliver at the time was in the employ of the defendant partners. In testing the correctness of the court's conclusion under our settled rule, the testimony must be viewed in the light most favorable to the plaintiff, together with all the inferences properly deducible therefrom, and the allegations of the complaint should have been submitted to the jury, if there was in the entire testimony any substantial evidence, either direct or circumstantial, tending to support the same.

The testimony on the part of the defendant was to the effect that Tolliver was regularly employed by Yantis-Harper Tire Company and had been so employed for several years; that he worked by the day and was paid by the day, and only paid when he worked. Tolliver testified that he was not employed on the day of the injury to the appellant, and his testimony was corroborated by that of the cashier and timekeeper of the partnership, who gave testimony to the same effect as did other employees of the company. Their testimony was also to the effect that, shortly before the occurrence in question, Tolliver was loaned the use of one of Yantis-Harper's cars for the sole purpose of permitting Tolliver to go to his home to get a raincoat which he wanted for his own use, and that the use of the car had no relation whatever to any service performed for Yantis-Harper Tire Company, or any connection with their business, and had no relation to any duty of Tolliver as an employee of the partnership. In addition to the testimony relative to Tolliver's employment and his use of the car, Tolliver testified that the car in which he was driving was not the one which caused the injury, and that he was traveling in a careful manner and had injured no one.

It was upon the testimony above narrated that the action of the court was based in directing a verdict for the defendants, Yantis and Harper. In testing the weight and sufficiency of this evidence to support the action of the trial court, as stated in the case of Skillern v. Baker, 82 Ark. 86, 100 S.W. 764, 118 Am. St. Rep. 52: "It may be said to be the general rule that where an unimpeached witness testifies distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established, and a verdict directed based as on such evidence. But this rule is subject to many exceptions, and where the witness is interested in the result of the suit, or facts are shown that might bias his testimony, or from which an inference may be drawn unfavorable to his testimony, or against the fact testified to by him, then the case should go to the jury."

Now the evidence stated above was not all the evidence in the case. There was evidence to the effect that Tolliver was a regular employee of the partnership, and had been such for a number of years; that a part of his...