Casteel v. Yantis-Harper Tire Company

• Decision Date: 16 March 1931
• Docket Number: 207
• Citation: 36 S.W.2d 406,183 Ark. 475
• Parties: CASTEEL v. YANTIS-HARPER TIRE COMPANY
• Court: Arkansas Supreme Court

36 S.W.2d 406

183 Ark. 475

CASTEEL v. YANTIS-HARPER TIRE COMPANY

No. 207

Supreme Court of Arkansas

March 16, 1931

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

Judgment reversed.

Simmons & Lister, for appellant.

Daily & Woods, for appellee.

OPINION

BUTLER, J.

In the trial of this cause in the court below a verdict was returned under the direction of the court against appellant, the plaintiff, in favor of the defendants, Yantis-Harper Tire Company, and, when that action was taken, a nonsuit was entered against their co-defendant, Robert Tolliver. We are therefore required by settled rules of practice to view the testimony on plaintiff's behalf, with the inferences properly deducible therefrom, in the light most favorable to her in the determination of the correctness of the court's ruling in directing a verdict in favor of the tire company. The suit was 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 that firm.

The testimony on plaintiff's behalf is to the effect that about 7 P. M. on Tuesday, November 12, 1929, she 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, drove through the safety zone, striking plaintiff and very seriously injuring her.

The suit was brought upon the theory that the car inflicting the injury was driven by the defendant, Tolliver, and that he was at the time engaged in his employment as the employee of his co-defendant, the Yantis-Harper Tire Company.

Tolliver denied striking plaintiff. 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 even though he, in fact, caused it. The evidence was to the effect that Tolliver had been employed by Yantis-Harper for several years as the driver of a service truck, his business being to deliver gasoline and tires and other commodities and to answer service calls over the city.

Hager testified that the car sped on after striking the plaintiff and went towards the place of business of Yantis-Harper, and that he followed on to that place, and that Tolliver came out on the walk and asked: "What's the matter; did I hit some one down there?" and that Tolliver made the further statement that he had been away to get or to deliver a package. This witness identified the car as belonging to the defendants, Yantis-Harper. The place of business of Yantis-Harper was only three-fourths of a block away from the place of the collision.

The testimony concerning the remarks of Tolliver was objected to as being incompetent as against Yantis-Harper. The car driven by Tolliver was of the kind used by him in the discharge of his regular duties.

It is not questioned that the testimony concerning the statement made by Tolliver after the collision was admissible against him, but it is insisted that it was not admissible and should not be considered in connection with the liability of Yantis-Harper, for the reason that it was not a part of the res gestae, and that it was improper to prove any act or declaration of Tolliver as tending to show his agency or employment.

The rule is settled that the declarations of an employee as to who was responsible for an injury, made after its occurrence, are incompetent as against his employer, for the reason that his employment does not carry with it authority to make declarations or admissions at a subsequent time as to the manner in which he had performed his employment. River, R. & H. Const. Co. v. Goodwin, 105 Ark. 247, 151 S.W. 267; Stecher Cooperage Works v. Steadman, 78 Ark. 381, 94 S.W. 41; Caldwell v. Nichol, 97 Ark. 420, 134 S.W. 622; Pfeifer Stone Co. v. Shirley, 125 Ark. 186, 187 S.W. 930; Williams v. Elrod, 128 Ark. 207, 193 S.W. 514; Webb v. K. C. Sou. Ry. Co., 137 Ark. 107, 208 S.W. 301; Frolich v. Hicks, 143 Ark. 565, 222 S.W. 373; St. L. S. F. R. Co. v. Vernon, 162 Ark. 226, 258 S.W. 126. But that rule does not render this testimony incompetent. It is to be remembered that one of the issues in the case was the question of fact whether Tolliver was the driver of the car. He denied that he was. The testimony was therefore competent to identify him, and no error was committed in admitting it, not only as against Tolliver, but as against his codefendants and employers as well.

We think the testimony, when viewed in the light most favorable to plaintiff, as it must be, is sufficient to support a finding that plaintiff was struck by a car driven by Tolliver and owned by Yantis-Harper, and that in his regular employment he drove such a car. This is not seriously questioned. It is very earnestly insisted, however,...