Taylor v. Samuels, 5-3255

Decision Date04 May 1964
Docket NumberNo. 5-3255,5-3255
Citation238 Ark. 70,378 S.W.2d 200
PartiesJoe TAYLOR, Appellant, v. Alvin B. SAMUELS, Appellee.
CourtArkansas Supreme Court

L. V. Rhine, Paragould, for appellant.

Kirsch, Cathey & Brown and William B. Wharton, Paragould, for appellee.

ROBINSON, Justice.

This is a suit for damages to personal property. Appellee, Alvin B. Samuel, owned a TD-9 tractor which he left parked in the country near a house occupied by Mrs. Rosa Hyde. The tractor needed repairs, and the water was drained from the radiator and cooling system.

Later, two men delivered some lumber and unloaded it near the tractor. After the lumber was unloaded, they could not get the lumber truck started; they asked Mrs. Hyde for her permission to use the tractor to pull the truck to get it started; she told them that the tractor did not belong to her, that it was being repaired and that no water was in it. Regardless of the warning given by Mrs. Hyde, the men started the tractor and used it to pull the truck.

This action was filed by appellee, owner of the tractor, who alleged that the appellant, Taylor, his agents and employees, wrongfully and without permission used the tractor when the cooling system contained no water and as a result thereof the tractor was damaged in the sum of $713.39. There was a judgment for Samuel in the amount of $713.00, and Taylor, the defendant, has appealed.

There is substantial evidence that the two men who delivered the lumber used the tractor and damaged it in the stated amount. On the question of agency, Mrs. Hyde was permitted to testify that the men who delivered the lumber told her that they were delivering it for Taylor. Appellant objected on the ground that the testimony was hearsay.

Mrs. Hyde's testimony regarding what the men told her was hearsay and inadmissible. In Rice v. Moudy, 217 Ark. 816, 233 S.W.2d 378, this court quoted as follows from 31 C.J.S. Evidence, §§ 192, 193, p. 919: 'Evidence is hearsay when its probative force depends on the competency and credibility of some person other than the witness. * * * Subject to certain exceptions, the courts will not receive testimony of a witness as to what some other person told him, as evidence of the existence of the fact asserted.' None of the exceptions to the hearsay rule are applicable here.

Appellee argues that the fact of agency was clearly established by other evidence, and therefore, even if Mrs. Hyde's testimony of what the men told her was not admissible, it was...

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3 cases
  • Farmers Equipment Co. v. Miller
    • United States
    • Arkansas Supreme Court
    • July 17, 1972
    ...with a price, but I am not sure about that.' We find no similarity between this testimony and that held inadmissible in Taylor v. Samuel, 238 Ark. 70, 378 S.W.2d 200, relied upon by appellant. There, an attempt was made to prove the agency of two unidentified individuals making delivery of ......
  • Ball v. Spencer
    • United States
    • Arkansas Supreme Court
    • May 4, 1964
  • Archer-Daniels-Midland Co. v. Beadles, Inc.
    • United States
    • Arkansas Court of Appeals
    • October 12, 2005
    ...it is the only proof of an essential element of a claim. Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996); Taylor v. Samuels, 238 Ark. 70, 378 S.W.2d 200 (1964). As such, the trial court improperly admitted the memo and the testimony regarding Wayne Jr.'s telephone Finally, we do ......

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