Mullins v. Ritchie Grocer Company

• Citation: 35 S.W.2d 1010,183 Ark. 218
• Decision Date: 16 February 1931
• Docket Number: 149
• Parties: MULLINS v. RITCHIE GROCER COMPANY
• Court: Arkansas Supreme Court

35 S.W.2d 1010

183 Ark. 218

MULLINS v. RITCHIE GROCER COMPANY

No. 149

Supreme Court of Arkansas

February 16, 1931

Appeal from Union Circuit Court, Second Division; W. A. Speer Judge; reversed.

STATEMENT OF FACTS.

Appellant instituted this action against appellee to recover damages for personal injuries alleged to have been caused by the negligence of appellee's salesman in operating its automobile.

According to the evidence for appellant, about eleven o'clock on the night of September 14, 1929, while M. B. Sheridan was going to El Dorado in his automobile, the gas in his car became stopped up, and he flagged down the car in which James Mullins was riding to get a pair of pliers. Sheridan was going west and was parked on the right side of the road. Mullins stopped his car and reached under the front seat to get the pliers for Sheridan. While doing so, a car driven by John Lewis also going west ran into the car driven by Sheridan. Lewis then turned his car across the road and ran into the car driven by James Mullins, which was facing east and severely injured him. Evidence for appellee shows that John Lewis was driving at the rate of fifty miles an hour and that there was plenty of room for him to pass between the two cars. According to the evidence, the jury was fully warranted in finding that the accident occurred on account of the negligence of John Lewis in operating the car in which he was riding. The fact being conceded by counsel for appellee there is no need to further abstract the testimony on this point.

Evidence for appellant showed that John Lewis, at the time the accident occurred, was employed by the Ritchie Grocer Company, a corporation, in the capacity of traveling salesman, and that, for his use in the discharge of his duties, the Ritchie Grocer Company furnished him an automobile. His duties were to sell goods and collect for them for the Ritchie Grocer Company. At the time of the accident, Lewis was returning from in the direction of East Field, which was a collection of stores east of the city of El Dorado, and which was a part of the territory in which he sold goods and collected for the same. The car furnished him in his work by the Ritchie Grocer Company was allowed by it to be kept in his possession and under his control all the time. The accident happened at about eleven o'clock Saturday night the 14th of September, 1929.

On cross-examination, the credit man and office manager of the Ritchie Grocer Company, who testified to the above facts, said that, under his contract with the Ritchie Grocer Company, Lewis was not required to work on Saturday and had that day for himself.

The extent and character of the injuries of James Mullins were also shown by appellant.

Appellant offered to prove by John Marian Dobson that he saw John Lewis near East Field or Gregory City, as it is sometimes called, between five and six o'clock in the afternoon on the 14th day of September, 1929, and helped him change a casing on his car. While they were doing so, Lewis told witness that he was trying to collect some accounts or bills for the Ritchie Grocer Company. The court excluded this offered evidence from the jury.

From a judgment upon a directed verdict against him, appellant has duly prosecuted an appeal to this court.

Judgment reversed, and cause remanded. Opinion on rehearing denied.

J. V. Spencer and Marsh, McKay & Marlin, for appellant.

Taylor Roberts and Mahony, Yocum & Saye, for appellee.

OPINION

HART, C. J., (after stating the facts).

The principal question involved upon the appeal is whether or not under proof of the facts stated, the court should have submitted the case to the jury. In case-notes to 17 A. L. R. 621, and 29 A. L. R. 470, the general rule is stated that, in order to hold an employer liable for injuries by an automobile while being driven by or for a salesman or collector, the relation of master and servant must exist, and the servant must, at the time, have been acting within the scope of his employment in performing an act for the master's benefit. Among the cases from various courts of last resort, which are cited as sustaining the rule, is that of Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S.W. 6. To the same effect, see Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78, 8 A. L. R. 785; Rose v. Balfe, 223 N.Y. 481, 119 N.E. 842, Ann. Cas. 1918D, 238; and Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854, Ann. Cas. 1918D, 1123.

In a case-note to 42 A. L. R. at page 919, it is stated that proof that the automobile causing the damage belonged to the defendant, and was being operated at the time of the injury by an employee of the defendant, creates a reasonable presumption that the driver was acting within the scope of his employment or in the course of his master's business. This presumption, however, is one of fact, and may be defeated or overcome by testimony tending to contradict it. Our own court adopted this rule in the case of Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S.W. 6. In this connection, it may be stated that the phrase "in the course or scope of his employment or authority," when used relative to the duties of the servant or employee, in cases of this sort, means while engaged in the service of his master or while about his master's business.

The doctrine is settled in this State that, if the automobile causing the accident belongs to the defendant and is being operated at the time of the accident by one of the regular employees of the defendant, there is a reasonable inference that at such time he was acting within the scope of his employment and in the furtherance of his master's business. The inference or presumption of fact, however, may be rebutted or overcome by evidence adduced by the defendant during the trial. Where the evidence on this point is contradictory, the question is one for the jury. Where the facts are undisputed and uncontradicted, it becomes a question for the court. Healey v. Cockrill, 133 Ark. 327, 202 S.W. 229, L. R. A. 1918D, 115; Bizzell v. Hamiter, 168 Ark. 476, 270 S.W. 602; and Hunter v. First State Bank of Morrilton, 181 Ark. 907, 28 S.W.2d 712.

It is earnestly insisted that the doctrine established in the Hunter case warranted the court in directing a verdict for appellee; and that, in the application of it to the facts of the present case, the judgment must be upheld. We do not think so. We adhere to the rule laid down in the Hunter case, and in support of it cite Tinker v. Hirst, 162 La. 209, 110 So. 324, where it was held that the employer of a driver, operating a truck on week days, is not liable for the negligence of an employee while using the truck on Sunday for his own purposes, without the knowledge or consent of his employer. The reason is that the wrongful act must be the act of the defendant and the injury suffered by the plaintiff must be the natural and not merely a remote consequence of the defendant's act. So, it is settled, at least in this State, that where it appears that the employee was not acting within the course of his employment, no liability attaches to the employer because there is no reasonable connection between the employer and the act of his employee which caused the damage.

The rule of the liability of...