A. V. Wills & Sons v. Irby
| Decision Date | 02 April 1923 |
| Docket Number | (No. 266.) |
| Citation | 249 S.W. 562 |
| Parties | A. V. WILLS & SONS v. IRBY. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Clay County; W. W. Bandy, Judge.
Action by W. H. Irby against A. V. Wills & Sons. Judgment for plaintiff, and defendants appeal. Reversed, and cause dismissed.
W. E. Spence, of Piggott, and Block & Kirsch, of Paragould, for appellants.
L. Hunter and Carl L. Hunter, both of Piggott, and Z. B. Harrison, of Blytheville, for appellee.
Appellants, with their principal office at St. Louis, are contractors doing dredging work, and during the month of January, 1921, were doing that kind of work, using a dredge boat, in Clay county, Ark. Durran was the foreman of the boat, and Earl Brogley, an employee fell from the boat into the drainage canal and was drowned. It does not appear that appellants or any of their servants were responsible to any extent for the death of Brogley. This occurred at night, and Durran sent a messenger to Rector for the purpose, as claimed by appellee, of procuring the services of an undertaker to take charge of the body of the decedent and prepare it for burial. There is a conflict in the testimony as to the purpose for which the messenger was sent, whether or not Durran undertook to contract with appellee in appellant's name for the services performed and the things furnished; but, as the sufficiency of the evidence is challenged, the case is stated in its light most favorable to appellee.
Appellee is an undertaker at Rector, and he was requested by Durran's messenger to go out and take charge of the body. He did so at night and carried the body to Rector, to his undertaking establishment, and the next morning a coffin and other burial paraphernalia were selected.
The evidence is sufficient to warrant the finding that Durran, purporting to act for appellants, his principal, authorized appellee, to prepare the body for burial and to furnish the funeral outfit.
Appellee prepared the body by embalming it, and furnished an expensive casket and vault, and also wearing apparel for the corpse. The total bill was $395.
Early in the morning before the selection of the casket and other things, Durran got into telephonic communication with Ray Brogley, who was a brother of the deceased, and who was appellant's foreman on another dredge boat. Ray Brogley came in the afternoon and was present at the selection of the coffin and other things, but appellee testified that he furnished the things and did the work on the strength of the directions given him by Durran as appellant's agent.
The body was shipped to Amboy, Ill., the former home of the deceased, and was accompanied on the trip by Ray, the brother of deceased. On that day appellee made out two invoices for services and burial supplies furnished, each being made out in the name of Ray Brogley. He handed one of the bills to Durran and the other to Ray Brogley for the purpose of having them deliver the same to Bunnell, appellant's general superintendent, who exercises general authority. As Ray Brogley went through St. Louis with the corpse he was met at the station by one of the members of appellant's firm, and this bill was handed to that person; but no response was made, so far as the evidence shows, concerning the payment of the bill, This was on January 26, 1921. On February 9th appellee, not having heard anything from appellants or Bunnell, their superintendent, addressed a letter to appellants at their office in St. Louis, inquiring about what dispositon had been made of the bill. The letter was not brought into the record, but the substance of it is fairly shown. To this letter, appellants replied on February 12, 1921, as follows:
There is no testimony that appellants made any agreement to pay the bill. Later correspondence took place between the parties, and appellants expressly refused to pay the bill.
There is no testimony that Durran had any express authority from appellants to contract in appellants' name for services or supplies of this kind. On the contrary, the testimony is uncontradicted that Durran's express authority was limited to the operation of the dredge boat and the purchasing of necessary supplies in the absence of Bunnell, the superintendent.
Appellee instituted this action against appellants to recover the amount of the bill, and counsel rely entirely upon either implied authority on the part of Durran to act for his principal in an emergency, or upon a ratification by appellants in failing to repudiate, within a reasonable time, the exercise by Durran of such authority.
There being no express authority for Durran to make such a...
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