Payne v. Fayetteville Mercantile Company

Citation150 S.W.2d 966,202 Ark. 274
Decision Date21 April 1941
Docket Number4-6314
CourtSupreme Court of Arkansas

150 S.W.2d 966

202 Ark. 274




Supreme Court of Arkansas

April 21, 1941

Appeal from Washington Circuit Court; Lawrence C. Auten, Judge on exchange; affirmed.


Hunter Lane, Karl Greenhaw and Price Dickson, for appellant.

Pearson & Pearson, for appellee.




B. C. Payne was fatally injured in October, 1937, when Carl Gray's automobile struck a bridge abutment on Highway No. 71 near Springdale, Arkansas. Appellee is a corporation doing a wholesale mercantile business. It employed Gray as a salesman, paying a fixed salary. There were no commissions. The salesman's "territory" included Bentonville, Rogers, Siloam Springs, Springdale, Johnson, Fayetteville, Fort Smith, and other towns and wayside stores en route to the places mentioned. Gray paid his own expenses. [202 Ark. 275] For five years he had used his own car. Appellee (hereinafter sometimes referred to as the company) did not require Gray to employ any designated means of transportation. Although there is testimony on behalf of the company that Gray might have gone by train, bus, or other conveyance, it is clear that the employer knew how Gray's trips were made; that at least inferentially the automobile was indispensable to the character of services rendered, that it was an integral contributing to the contract of employment, and that without it customer contacts would have been difficult. Hence, Gray was not an independent contractor over whose movements the employer had no control.

Payne was salesman for Whittmore Bros. Shoe Polish Company. Appellant refers [150 S.W.2d 967] to him as a specialty man who called on jobbers and wholesalers to induce them to handle his employer's products; or, if such products were being handled, it was Payne's business to stimulate the business. It was customary for Payne to travel with salesmen representing jobbers and wholesalers. Approximately two weeks before Payne was injured he had been in Fayetteville and "arranged" to return. The automobile wreck occurred on Friday. During all of the week Gray and Payne had traveled together.

There is testimony by the company's manager that Payne took orders for shoe polish and forwarded them to appellee at Fayetteville, where they were filled. Witness did not know Payne was traveling with Gray. Copies of orders taken by Payne were identified as having been written in books bearing the imprint of Fayetteville Mercantile Company. Payne was "supposed" to have brought his own car to Fayetteville.

At the conclusion of appellant's testimony, appellee's motion for a directed verdict was sustained; hence, this appeal.

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6 cases
  • Simms v. Tingle, 5-2050
    • United States
    • Supreme Court of Arkansas
    • May 16, 1960
    ...and the driver, points to the case of Henry v. Henson, Tex.Civ.App.1943, 174 S.W.2d 270, and to our own case of Payne v. Fayetteville Mercantile Co., 202 Ark. 264, 150 S.W.2d 966, and argues that the benefit accruing to the driver must be a business or pecuniary benefit and that since any p......
  • McMahon v. De Kraay
    • United States
    • Supreme Court of South Dakota
    • November 10, 1944
    ...... et al. v. Elkins, 200 Ark. 883, 141 S.W.2d 538, and in Payne. v. Fayetteville Mercantile Co., 202 Ark. 274, 150 S.W.2d 966,. that ......
  • McMahon v. DeKraay, 8709
    • United States
    • Supreme Court of South Dakota
    • November 10, 1944
    ...and in Arkansas Valley Cooperative Rural Electric Co. et al. v. Elkins, 200 Ark. 883, 141 SW 2d 538, and in Payne v. Fayetteville Mercantile Co., 202 Ark. 274, 150 SW 2d 966, that court subscribed to the test of who are guests contained in § 2292 of Blashfield’s Cyclopedia of Automobile Law......
  • Pilcher v. Erny
    • United States
    • United States State Supreme Court of Kansas
    • April 11, 1942
    ...... also, Fuller v. Tucker, 4 Wash.2d 426, 103 P.2d. 1086; Payne v. Fayetteville Merc. Co., 202 Ark. 274,. 150 S.W.2d 966; Bushouse v. ......
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