Golenternek v. Kurth
Decision Date | 14 June 1948 |
Docket Number | 4-8530 |
Citation | 212 S.W.2d 14,213 Ark. 643 |
Parties | Golenternek v. Kurth |
Court | Arkansas Supreme Court |
Rehearing Denied July 5, 1948.
Appeal from Clark Circuit Court; Dexter Bush, Judge.
Affirmed if Remittitur is entered.
Buzbee Harrison & Wright, for appellant.
Agnes F. Ashby and J. H. Lookadoo, for appellee.
Ed. F McFaddin, Justice.
Appellant, Mrs. Sarah Golenternek, is engaged in the buying of hides in Shreveport, Louisiana. From that city, appellant's agents drive trucks to various cities, and buy hides, and transport them in said trucks to Shreveport. One of appellant's trucks (a two-ton truck) containing a load of hides, and en route from Hot Springs, Arkansas, to Shreveport, was wrecked at Gurdon, Arkansas, on Friday, January 31, 1947. Thereupon, R. C. Frazier, a regular employee of appellant, proceeded in one of her one-ton trucks from Shreveport to Gurdon, and transported about half of the load of hides from the wrecked truck to Shreveport. Then on Sunday, February 2, 1947, Frazier -- accompanied by his wife and children -- returned in the one-ton truck from Shreveport to Gurdon. Instead of stopping in Gurdon and getting the remaining hides and returning to Shreveport, Frazier drove on to Arkadelphia; and there -- while driving appellant's truck -- had a collision with a car driven by appellee, Mrs. Dorothy Kurth; who sued appellant for personal injuries and property damages occasioned by the collision. From a verdict and judgment for appellee, there is this appeal presenting the issues now to be discussed.
I. Admission of Evidence. Appellant admitted that Frazier was her employee, and that he was driving her truck at the time and place of the collision, and that Frazier was paid a regular salary by her; but she insisted that Frazier was outside the scope of his employment at the time and the place of the collision. She urged that Frazier's duties required him to load the hides at Gurdon and return to Shreveport; that instead of so doing, he proceeded about 18 miles past Gurdon to Arkadelphia, and was thus on a mission of his own and outside the scope of his employment at the time and place of the collision. Frazier so testified. Appellee insisted that when the collision occurred in Arkadelphia, Frazier was actually en route from Gurdon to Hot Springs in the course of business for the appellant. As bearing on this trip to Hot Springs, appellee testified to a declaration made to her by Frazier at the scene of, and immediately after, the collision. We copy from the transcript:
Was the said statement by Frazier to the appellee admissible on the issue of scope of employment? That is the question presented. Appellant has cited us to many cases from other jurisdictions holding a declaration such as this one to be inadmissible. Some of these cases are: Otero v. Soto, 34 Ariz. 87, 267 P. 947; Deater v. Pa. Machine Co., 311 Pa. 291, 166 A. 846; Lewis v. Word Transfer Co. (Tex.), 119 S.W.2d 106; Webb-North Motor Co. v. Ross (Tex.), 42 S.W.2d 1086; Wenell v. Shapiro, 194 Minn. 368, 260 N.W. 503; Moore v. Rosenmond, 238 N.Y. 356, 144 N.E. 639. But, regardless of the holding in other jurisdictions, we are firmly committed to the holding that such a declaration as was here made by an admitted agent is admissible on the issue of scope of employment. In Mullins v. Ritchie Grocer Co., [*] 183 Ark. 218, 35 S.W.2d 1010, a declaration of an admitted agent was offered, and we said:
In the concluding paragraph the court further said: "His statement tended to show that he was acting in the course of his employment, and was admissible to show that he was acting within the real and apparent scope of his authority; and not for the purpose of establishing his agency, which had already been established by undisputed evidence."
Some of the other cases to like effect, and reaffirming the rule stated in Mullins v Ritchie Grocer Co., supra, are: Casteel v. Yantis-Harper Tire Co., 183 Ark. 475, 36 S.W.2d 406; S. C. 183 Ark. 912, 39 S.W.2d 306; Rex Oil Corp. v. Crank, 183 Ark. 819, 38 S.W.2d 1093; and Marshall Ice & Electric Co. v. Fitzhugh, 195 Ark. 395, 122 S.W.2d 420. So we hold that Frazier's statement, here challenged, was admissible under the facts in this case. With this challenged declaration in the record, an issue was made for the jury...
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