Hawthorne v. Davis

• Decision Date: 25 February 1980
• Docket Number: No. 79-336,79-336
• Citation: 268 Ark. 131,594 S.W.2d 844
• Parties: Glen HAWTHORNE, d/b/a Glen Hawthorne Wholesale Meat (Reeder Meat Co.), Uninsured Employer, Appellant, v. Gloria DAVIS, Widow of James Davis, Deceased Employee, Appellee.
• Court: Arkansas Supreme Court

Page 844

594 S.W.2d 844

268 Ark. 131

Glen HAWTHORNE, d/b/a Glen Hawthorne Wholesale Meat (Reeder Meat Co.), Uninsured Employer, Appellant, v. Gloria DAVIS, Widow of James Davis, Deceased Employee, Appellee.

No. 79-336.

Supreme Court of Arkansas.

Feb. 25, 1980.

Rehearing Denied March 31, 1980.

Wood, Smith, Schnipper & White, Hot Springs, for appellant.

W. H. "Dub" Arnold, Arkadelphia, for appellee.

HOLT, Justice.

Appellee's husband was employed at the appellant's slaughterhouse operation. The commission agreed with the finding of the hearing judge that the deceased was acting within the scope of his employment at the time of his death and awarded death benefits to the appellee. The Court of Appeals affirmed the award on the ground that the findings of the commission were supported by substantial evidence. We granted certiorari to clarify two issues: (1) whether there are two evidentiary rules in Arkansas regarding the establishment of the agency relationship, and (2) whether hearsay evidence alone constitutes sufficient "competent evidence" to support an award under the Workmen's Compensation Act. Ark.Stat.Ann. § 81-1325(b)(4). See also Ark.Stat.Ann.Vol. 3A, Rules of the Supreme Court, Rule 29(6) and (4 b) (Repl.1977).

We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the commission, and the commission's findings will be upheld if there is any substantial evidence to support their action even if the preponderance of the evidence would indicate a different result. Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W.2d 868 (1978); and Clark v. Peabody Testing Services, 265 Ark. 489, 579 S.W.2d 360 (1979). Doubtful cases are resolved in favor of the claimant, and we are not concerned with the weight of the evidence nor the credibility of the witnesses since we do not review the case de novo. O K. Processing, Inc., et al v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979).

Appellant first contends that the commission erred in finding that the appellee's decedent's death arose out of and in the course of his employment because the finding was not supported by any substantial evidence. The appellant argues that the only evidence regarding whether the decedent was acting within the scope of his employment was hearsay testimony by a local attorney as to a conversation he had with appellant's son the day following the accident. At the time of the conversation appellee had requested this attorney to investigate a possible wrongful death action arising out of her husband's death. The attorney testified that the appellant's son, and purported agent, told him that he was in charge of the appellant's slaughterhouse that day; he had made the decision to close down early; the decedent worked for him at this plant; and he had said to decedent: "Why don't we just take off because I need to go to Glenwood to look at some cattle at the sale barn." The decedent transported him there on his motorcycle. Upon leaving on his motorcycle, the decedent was killed in a collision with a car. Appellant argues that there is no evidence that the deceased was acting within the scope of his employment inasmuch as neither agency nor the extent of an agent's authority can be shown, as here, by his own declarations in the absence of the party to be affected. At the hearing, the son testified that he did not remember what he told the attorney; he was not the deceased's boss; he had no authority to buy cattle and no authority at the plant; and he did not go to Glenwood to buy cattle or for any other business purpose.

It is true that we have held that neither agency nor the extent of an agent's authority can be shown by his own declarations in the absence of the party to be effected. Zullo v. Alcoating, Inc., 237 Ark. 511, 374 S.W.2d 188 (1964). It is well settled, however, that the existence of the agency relationship may be established by the testimony of other witnesses who possess knowledge of the facts. See Boddy v. Thompson, 179 Ark. 71, 14 S.W.2d 240 (1929); and Beekman Lumber Co. v. Kittrell, 80 Ark. 228, 96 S.W. 988 (1906). Circumstantial evidence may be sufficient to establish agency, and the declarations of the purported agent may be used to corroborate other evidence of agency. See Bell v. State, 93 Ark. 600, 125 S.W. 1020 (1910); Moore v. Ziba Bennitt & Co., 147 Ark. 216, 227 S.W. 753 (1921); Thompson v. Hollis & Co., 194 Ark. 1, 104 S.W.2d 1065 (1937); and Richards v. State, 497 S.W.2d 770 (Tex.Civ.App.1973). It is undisputed that the son kept the keys to the plant in his possession and the deceased, as on the morning of the accident, would go by his home to pick up the keys. The son was paid higher wages than the deceased. They were the only two employees at this particular plant. The appellee's widow testified that she had answered the telephone at her home when the purported agent told her to tell her husband "what to do." Further, as we discuss later, the asserted "hearsay" evidence is now competent evidence.

We hold that the testimony of the attorney, the appellee and appellant's son, together with the circumstantial evidence, is sufficient to establish the existence of an agency relationship between the appellant and his son. There are not, as argued in the petition for review, two separate evidentiary rules in Arkansas for the establishment of the agency relationship.

We now turn to appellant's contentions that the commission erred in (1) finding that the deceased sustained an accidental death arising out of and in the course of his employment, because the record does not disclose that the accident grew out of or resulted from the employment, and (2) in basing its decision on certain hearsay testimony inasmuch as hearsay evidence in and of itself cannot support an award under the Workmen's Compensation Act. The thrust of appellant's next argument is that the testimony of the attorney was the only evidence demonstrating that the deceased was killed in an accident which arose out of a trip which was business connected. He asserted that the testimony of the attorney was clearly hearsay, and hearsay evidence does not constitute "competent evidence" sufficient to support an award. The Court of Appeals did not reach the issue on the ground that no objection was made to the admission of the hearsay testimony at the hearing; and, therefore, the issue cannot be considered for the first time on appeal. Jeffery Stone Co. v. Raulston, 242 Ark. 13, 412 S.W.2d 275 (1967); and Clark v. Peabody Testing Services, supra.

Admittedly, the only evidence that the trip to Glenwood was business connected was the testimony of the attorney and the deceased's brother as to prior statements made by the appellant's son. They testified to the effect that the appellant's son told the attorney that he had asked the decedent to take him to Glenwood to look at some cattle for his father's slaughterhouse operations. We cannot agree with appellant's contention that their testimony is hearsay, because under our new rules of evidence, the statements by the son fall within the definition of a prior statement by a witness as set forth in Ark.Stat.Ann. § 28-1001, Rule 801(d)(1...