Golenternek v. Kurth

• Decision Date: 14 June 1948
• Docket Number: No. 4-8530.,4-8530.
• Citation: 212 S.W.2d 14
• Parties: GOLENTERNEK v. KURTH.
• Court: Arkansas Supreme Court

212 S.W.2d 14

GOLENTERNEK v. KURTH.

No. 4-8530.

Supreme Court of Arkansas.

June 14, 1948.

Rehearing Denied July 5, 1948.

Appeal from Circuit Court, Clark County; Dexter Bush, Judge.

Action by Mrs Dorothy Kurth against Mrs. Sarah H. Golenternek for personal injuries and property damages sustained in a collision between plaintiff's automobile and defendant's truck. Judgment for plaintiff, and defendant appeals.

Affirmed, if plaintiff enters remittiturs of portions of the damages awarded, and otherwise reversed and cause remanded.

Buzbee, Harrison & Wright, of Little Rock, for appellant.

Agnes F. Ashby and J. H. Lookadoo, both of Arkadelphia, for appellee.

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:

"Q. Did he (Frazier) tell you then where he was going?

"By Mr. Harrison: Now, we object to any statements made by Mr. Frazier relating to his agency or authority or the mission he was on, and on the question of liability for the accident on the part of the defendant company inasmuch as any declaration on his part would not be admissible.

"By the Court: She can state where he said that he was going, but the matter of agency is admitted, I believe.

"By Mr. Lookadoo: I am not introducing it on the matter of agency, as that is admitted.

"By Mr. Harrison: Yes, agency is admitted, but it is specifically denied in that admission that he was acting within the scope of his employment, and we object to any statement he may have made there.

"By the Court: Overruled.

"By Mr. Harrison: Save our exceptions.

"By Mr. Lookadoo:

"Q. What did he tell you? A. He called me over to one side immediately after that and told me that he was on his way to Hot Springs to get some furs and was going back to Gurdon to pick up some more.

"Q. Did he tell you that he was making the trip for the defendant. A. Yes, sir.

"By Mr. Harrison: Now, at the conclusion of these questions and answers relating to his declared mission—Mr. Frazier's declared mission to Mrs. Kurth—the defendant moves that those questions and answers be stricken from the record for the same reasons that those declarations are inadmissible against the defendant.

"By the Court: Overruled.

"By Mr. Harrison: Save our exceptions."

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. Penn. Machine Co., 311 Pa. 291, 166 A. 846; Lewis v. J. P. Word Transfer Co., Tex.Civ.App., 119 S.W.2d 106; Webb-North Motor Co. v. Ross, Tex.Civ.App., 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.,¹ 183 Ark. 218, 35 S.W.2d 1010, 1012, a declaration of an admitted agent was offered, and we said: "It will be remembered that appellant offered to show by witness that he helped John Lewis to repair his automobile between 5 and 6 o'clock in the afternoon near Gregory City, and that, while doing so, Lewis told him he was trying to collect some accounts or bills for the Ritchie Grocer Company. It is true that it is well settled that the fact of agency cannot be established by the declarations of the agent, but this was not the purpose of the testimony. The fact of agency had already been established by evidence which was not attempted to be contradicted. The offered evidence was for the purpose of showing that Lewis was acting in the furtherance of his master's business or in the course of his employment as traveling salesman in a place where his duty called him, and the evidence was competent for that purpose."

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 re-affirming the rule stated in Mullins v. Ritchie Grocer Co., ...