Terry Dairy Company v. Parker

• Decision Date: 14 June 1920
• Docket Number: 46
• Citation: 223 S.W. 6,144 Ark. 401
• Parties: TERRY DAIRY COMPANY v. PARKER
• Court: Arkansas Supreme Court

223 S.W. 6

144 Ark. 401

TERRY DAIRY COMPANY v. PARKER

No. 46

Supreme Court of Arkansas

June 14, 1920

Appeal from Prairie Circuit Court, Southern District; G. W. Clark Judge; affirmed.

Judgment affirmed.

Buzbee Pugh & Harrison and Carmichael & Brooks, for appellant.

1. There was no proper service on the appellant, a corporation organized and doing business under the laws of Arkansas. The case in 115 Ark. 272, is not in point. The motion to quash the service should have been sustained, as the court obtained no jurisdiction. The pretended service was upon a person who had no contract with appellant and was not in charge of any branch of appellant's business; his only duty was to take milk from the farmers, weigh and ship it to appellant at Little Rock. He was not an agent of appellant upon whom process could be served, even under the rule in 115 Ark. 272.

2. The truck which it is alleged injured plaintiff was operated by an independent contractor, Ellison, and appellant was not liable for his acts or those of his servant or employee. 105 Ark. 477-481; 77 Id. 551; 156 N.Y. 75; 111 Ark. 247; 90 Conn. 444; 97 A. 328. The court erred in giving and refusing instructions. 111 Ark. 247, and cases supra. 111 Ark. 483, 498. See, also, Babbitt on Motor Vehicles, § 559; 177 Mass. 530. The ownership of the truck and the printed name thereon did not prove anything as to ownership or liability.

3. Appellee was guilty of contributory negligence. The truck was moving at a very slow rate of speed and running in low gear. If appellee had exercised ordinary care, such as is demanded of every pedestrian, he would not have been struck.

4. There is no evidence to sustain the verdict and it is excessive. 79 Ark. 621.

5. There were many errors in the admission of testimony. 72 Ark 409; 68 Id. 594-5.

6. It was error not to exclude the question as to insurance. 114 Ark. 542; 104 Id. 1; 114 Ark. 542.

Beloate & Anderson and Pace, Campbell & Davis, for appellee.

1. The service was lawful and proper. It was upon Kearns, the agent, servant and employee in charge of a branch office and place of business of defendant in Prairie County, Arkansas. Act 98, Acts 1909, p. 293; 115 Ark. 272.

2. The truck was not operated by an independent contractor. It belonged to appellant. It was painted TERRY DAIRY COMPANY, and the license number on the truck made a prima facie case that defendant owned the car and that the custodian of it was engaged in the owner's service. 214 N.Y. 249. Ellison was not an independent contractor. 135 Ark. 117; 61 S.E. 811; 52 Minn. 474; 157 Ky. 836; 84 N.J.L. 598; 124 P. 38; 49 La.Ann. 1465; 109 F. 732; 132 U.S. 523; 40 S.W. 309.

3. There was no error in the instructions given or refused. 135 Ark. 117; 133 Id. 334; 134 Id. 1; 37 Id. 580; 77 Ark. 551; 111 Id. 91; 118 Id. 561.

4. Appellee was not guilty of contributory negligence; he used ordinary care and looked and listened, as the evidence shows abundantly, and the finding of the jury is sustained by the evidence and is conclusive under the proof. 102 Ark. 351; 92 Id. 502; 94 Id. 246; 97 Id. 347; 101 Id. 424; 134 Id. 320; 85 Id. 479; 81 Id. 187; 110 Id. 495; 96 Id. 243.

5. There is ample evidence to sustain the verdict. 112 Ark. 607. The truck was going at twelve or fifteen miles an hour at a public crossing. 118 Ark. 506; 102 Id. 351; 134 Id. 320; 135 Id. 466.

6. There was no error in the admission of testimony. Kirby's Digest, § 3138; 68 Ark. 587. The record shows no prejudicial, adverse rulings against appellant and no proper exceptions were saved. 77 Ark. 238; 112 Id. 57; 131 Id. 121. Every proper objection made by appellant was sustained. There was no error about the question of insurance. 131 Ark. 6. The verdict is not excessive; his injury is permanent, and under the proof a much larger verdict would be sustained.

WOOD, J. HART, J., dissenting.

OPINION

WOOD, J.

This is an appeal from a judgment in favor of the appellee against the appellant.

The appellee filed a complaint in the Prairie Circuit Court against the appellant in which the appellee alleged, among other things, that the appellant was a corporation of the State of Arkansas, having its domicile and principal office and place of business in Little Rock, Arkansas; that it also keeps a place of business in the Southern District of Prairie County, Arkansas; that it uses automobile trucks to transport its products; that on May 23, 1919, the appellee was walking north along the west side of Main street of the city of Little Rock along the usual route used by pedestrians; that while crossing Fifth street he was struck by one of appellant's large trucks driven by its negro employee; that he was hit with such force that it knocked him down and seriously injured him.

The appellee further alleged that the employee was driving the truck at a high rate of speed in a negligent and reckless manner; that such employee did not give the appellee any warning of his approach; that he thus failed to exercise ordinary care to observe the appellee and avoid injuring him. Appellee then described the nature of his injuries and alleged that he had been damaged thereby in the sum of $ 40,000, for which he prayed judgment.

Summons was issued, and the return shows that it was served "by delivering a copy of the summons to G. J. Kearns, agent, at its branch office in the Southern District of Prairie County, Arkansas."

The appellant moved to quash the service and alleged in its motion that it was an Arkansas corporation with its principal place of business in Pulaski County, and that it could only be served in that county; that it had no such branch office upon which service could be had in Prairie County.

The testimony adduced on the motion to quash was substantially as follows: The appellant maintained a frame building about 20 by 24 feet, on the railroad in the town of Hazen, on which was painted Terry Dairy No. 3. It was appellant's receiving station. G. L. Kearns was appellant's servant at this station. His duties were to receive the milk sent in to the station by the farmers. He was not paid to solicit anything. He was to weigh up the farmer's milk, put it in cans and ship it to appellant at Little Rock, but had no authority to employ or discharge anyone. His duties required his attention only a few hours a day, after that he could work for other people if he pleased. Appellant had an engine for cooling the milk before it was shipped. It was the duty of Kearns to operate this engine. Kearns bought the milk which appellant's customers brought into the station. Appellant would buy milk from anyone whose milk passed inspection. When appellant received from Kearns the name of the owner, the number of pounds of milk delivered by him at the station at Hazen, appellant would make out checks for each individual farmer, and the last of the month appellant sent the checks to Kearns for delivery. Kearns did not pay out or take in any money for the appellant. There was a desk in the building, and Kearns made daily reports of the business.

Appellant authorized its agent, Kearns, to pay for the milk down there whatever was the market price. Kearns did not have anything to do with making the price. The farmers would write to appellant at Little Rock asking what appellant was going to pay.

Appellant conducted its business through Kearns, at its station at Hazen, for its own convenience. It had had several agents down there before Kearns. Kearns shipped to the appellant about 100 gallons of milk daily, which was obtained and treated in the above manner.

At different times within the last two years appellant had shipped to its station at Hazen milk supplies and materials. Appellant paid Kearns $ 60 per month, for his services. Appellant maintained a receiving station similar to the Hazen station at Screeton.

The court overruled the motion to quash the service. Appellant contends that this was error, and this presents the first question for our consideration.

In Fort Smith Lumber Co. v. Shackleford, 115 Ark. 272, this court construed act 98 of the Acts of 1909, which provides the manner of obtaining service upon foreign and domestic corporations in this State. In that case was said: "But the term 'other place of business' designates a place where an established business of the company is carried on, regardless of whether the company has its principal or branch office situated there or not. The agent, servant, or employee in charge of a branch office, under the statute, must be one having authority to carry on the general business of the company, but not so as to the agent, servant, or employee in charge of the other place of business. His authority may be only limited and special, and confined to the particular business over which he has supervision. To be sure, the statute contemplates that there must be maintained a place where a well defined line of business is carried on with an agent in charge of that business."

The facts of the present case show that the appellant was maintaining at the town of Hazen a place where it was conducting a well defined line of its business. The appellant, as its name implies, is engaged in a business in which a supply of milk is indispensable. For its convenience it had a building, on the railroad equipped with machinery which it designated as its plant No. 3. This building had in it a desk which the agent in charge used in making daily reports of the business. The agent was employed on a salary. The building was equipped with the necessary machinery for cooling the milk and the business of the company was that of obtaining from the farmers in that locality a supply of milk to be shipped to its principal place of business at Little Rock. The building was duly equipped and appointed,...