Razorback Cab of Fort Smith, Inc. v. Lingo

• Decision Date: 22 January 1991
• Docket Number: No. 90-254,90-254
• Citation: Razorback Cab of Fort Smith, Inc. v. Lingo, 304 Ark. 323, 802 S.W.2d 444 (Ark. 1991)
• Parties: RAZORBACK CAB OF FORT SMITH, INC., Appellant, v. James M. LINGO, Appellee.
• Court: Arkansas Supreme Court

Page 444

802 S.W.2d 444

304 Ark. 323

RAZORBACK CAB OF FORT SMITH, INC., Appellant, v.James M. LINGO, Appellee.

No. 90-254.

Supreme Court of Arkansas.

Jan. 22, 1991.

Jack Skinner, Greenwood, for appellant.

Fred Caddell, Ft. Smith, for appellee.

HAYS, Justice.

AppelleeJames Lingo was awarded a judgment of $3,422.09 against Razorback Cab of Fort Smith, Inc. and Joseph Vernon Johnson, for personal injuries sustained by Lingo as a result of being struck by Johnson, a cab driver for Razorback.On appeal Razorback has asserted a number of errors.¹We reverse for a new trial.

Shortly after midnight on February 29, 1988, Joseph Johnson, driving a taxicab leased from Razorback Cab, picked up James Lingo and Gene Speakman.The two men had been drinking beer earlier at a Fort Smith tavern.Lingo and Speakman lit cigarettes but when the other passengers objected Johnson asked them not to smoke.Lingo refused to put out his cigarette, though admittedly asked two or three times to do so.An argument developed between Lingo and Johnson and Johnson stopped the cab.Lingo and Johnson got out, arguing over whether Lingo should pay a partial fare.Lingo contends Johnson struck him unexpectedly.Johnson claims Lingo cursed him and swung first and missed.Johnson admits striking Lingo at that point.

James and Rita Lingo filed suit against Razorback and Johnson for some $420 in medical expenses and for compensatory and punitive damages.The jury rejected the claim of Rita Lingo and awarded only compensatory damages.

Over the objection of the defendants, the plaintiffs were permitted to introduce the complaint in evidence.Razorback charges the trial court with reversible error on this count and we sustain the argument.Complaints, normally phrased in the most partisan language, are in no conceivable sense evidentiary.That seems particularly true in a personal injury case, and one in which punitive damages are sought.The introduction of the complaint as an exhibit which the jury is told it should consider [AMI Civ.3d 101(d) ] and which it may take into the jury room, strikes us as arrant error.

While the cases bespeak no hard and fast rule, pleadings, and especially complaints, are generally treated as inadmissible.Wright v. Hulett, 245 Ark. 152, 431 S.W.2d 486(1968)("Statement or allegation in a pleading, such as a bill in equity, or a petition of complaint ... is inadmissible in behalf of the pleader, in the action in which it is filed, against his opponent....");State Farm Mutual Insurance Co. v. Cates, 261 Ark. 129, 546 S.W.2d 423(1977);Fumiko Mitsuuchi v. Security-First National Bank of Los Angeles, 103 Cal.App.2d 214, 229 P.2d 376(1951)("Since when has an allegation in a pleading ever been regarded as evidence against an opposing party?The answer is never at all in the history of the law.");Kroger Company v. Warren, 410 S.W.2d 194(Tex.Civ.App.1966);Abramsky v. Felderbaum, 81 N.J.Super. 1, 194 A.2d 501(1963);Toney v. Raines, 224 Ark. 692, 275 S.W.2d 771(1955).

Appellees responded by noting that answers to interrogatories, requests for admissions, depositions and the like, are admissible.While that may be true, provided they are germane, it hardly touches on the issue--whether a complaint may be properly introduced in evidence to sustain the plaintiff's case.Nor are we persuaded by the argument that the introduction of the complaint was simply to provide the jury with a clear picture of what the plaintiffs were requesting by way of relief.There are other more appropriate methods of doing that than by making the complaint a component of evidence, by virtue of which it takes on a wholly different caste.

While the remaining points are rendered moot, we will discuss them as necessary for purposes of retrial.

Razorback bases two points for reversal on the premise that there was insufficient evidence of an employment relationship between it and Johnson which would render Razorback vicariously liable.Hence, it urges, the trial court erred in denying a motion for a directed verdict and in instructing the jury.

Razorback argues that Johnson leased a taxicab from Razorback under a written agreement expressly defining Johnson's status as a self-employed, independent contractor; Razorback paid no wages or remuneration to Johnson, rather, Johnson paid Razorback a flat $35 per day; that Johnson paid his own expenses, was free to work or not as he chose, took breaks as he chose, was free to pick up passengers or not as he chose, and was subject to no direct supervision by Razorback.In short, Razorback maintains it is a lessor of taxicabs and nothing more.

But we have held in numerous cases that whether the parties have created an independent contractor relationship hinges on the right to control and that is essentially a fact question.(SeeBlankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814(1990);Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127(1987);Evans v. White, 284 Ark. 376, 682 S.W.2d 733(1985);Hobbs-Western Co. v. Carmical, 192 Ark. 59, 91 S.W.2d 605(1936).

While there were factors which would warrant a finding that Johnson was an independent contractor, there were others that supported an opposing inference, e.g., Razorback imposed a dress code on its drivers which included a ban on beards.Examining the proof in its entirety it is clear that more than one inference could be drawn and it was not improper to submit that issue to the jury.Evans v. White, supra;Rose v. Black &...