Fooks v. Williams
| Decision Date | 25 January 1943 |
| Docket Number | 4-6936 |
| Citation | 168 S.W.2d 193,205 Ark. 119 |
| Parties | FOOKS v. WILLIAMS |
| Court | Arkansas Supreme Court |
Appeal from Clark Circuit Court; Dexter Bush, Judge; reversed.
Judgment reversed and cause dismissed.
Buzbee Harrison & Wright, for appellant.
J. H Lookadoo and Lyle Brown, for appellee.
OPINION
Appellees, husband and wife, are non-residents of this State. They were injured in Arkadelphia, Arkansas, when their car, in which they were riding, and which had stopped, in obedience to a traffic light signal, at the intersection of a street with highway 67, was struck from the rear by a truck owned by appellant and driven by his employee, one T. O. Crain. Separate suits were brought by appellees against appellant and Crain, but no service was had on the latter and he is not a party to the action. These actions were consolidated for trial and are briefed here as one case. The actions were defended on the ground that Crain, although an employee driving appellant's truck, was not acting within the scope of his employment at the time of the accident and injuries to appellees. Trial resulted in verdicts and judgments in favor of appellees for $ 3,000 each.
The only question presented by this appeal is the sufficiency of the evidence to support the verdicts and judgments.
If T. O. Crain, the driver of appellant's truck, was acting within the scope of his employment at the time, appellant was liable in damages for the injuries sustained by appellees, or, if the proof is sufficient to make that question one of fact to go to the jury, the verdict is conclusive here.
The facts, succinctly stated are: appellant was engaged in the business of manufacturing, bottling and selling a soft drink called Grapette, with his principal place of business at Camden, with a warehouse for storing his products at Prescott, sale and distribution being made by trucks. One Morse was in charge of this warehouse for appellant and he also distributed Grapette in a designated territory over three routes, one of which was over highway 67 north of Prescott to and north of Arkadelphia and as far north as the junction between highways 67 and 7. The only other salesman and distributor out of Prescott was said Crain, whose territory was south and west of Prescott, and he had no right to use the truck for his private purposes. Both trucks, when not in use in connection with appellant's business, were kept locked in a warehouse at Prescott, to which Morse and Crain each had a key. The practice of each was to take his truck out in the morning, cover his territory and, on his return the same day, place it back in the warehouse. On the day of the accident, December 18, 1941 Crain made his usual trip over his route south and west of Prescott and had returned, having stopped about a mile south of town and drunk a bottle of beer. He put the truck in the warehouse. Evidently the beer he had consumed was insufficient to satisfy his thirst, so, after a short time, he went back to the warehouse, got his truck which was loaded with empties and fulls, and drove away to get more beer. He stopped first at the The Oak Grill and then at Footsy's Place north of Prescott, consuming more beer at each place. At Footsy's, he ran into one Frank Spears and they decided to go north to Arkadelphia where Crain wanted to see a friend, but did not. On the trip to Arkadelphia they stopped along and drank more beer as they did in Arkadelphia. They decided they needed some whiskey, and, not being able to get it in said city, they drove to a liquor store some 4 or 5 miles north and purchased a pint which they drank at some other place. It was on the return trip that they ran into the car of appellees and injured them. Two witnesses, Gardner and Lipscomb, testified for appellees that on said date a man whom they had never seen before, with a Grapette uniform on, called on each of them to sell them Grapette. Neither made a purchase. Gardner's place of business is north of Arkadelphia and Lipscomb's is south--south of Gurdon. Both had been regularly serviced by George Morse whom both knew, but they did not know Crain...
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