Payne v. Fayetteville Mercantile Company

• Citation: 150 S.W.2d 966,202 Ark. 274
• Decision Date: 21 April 1941
• Docket Number: 4-6314
• Parties: PAYNE, ADMINISTRATRIX, v. FAYETTEVILLE MERCANTILE COMPANY
• Court: Supreme Court of Arkansas

150 S.W.2d 966

202 Ark. 274

PAYNE, ADMINISTRATRIX,
v.
FAYETTEVILLE MERCANTILE COMPANY

4-6314

Supreme Court of Arkansas

April 21, 1941

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

Affirmed.

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

Pearson & Pearson, for appellee.

GRIFFIN SMITH, C. J. HUMPHREYS and MEHAFFY, JJ., dissent.

OPINION

GRIFFIN SMITH, C. J.

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.

The issues,...