Van Dalsen v. Inman

• Decision Date: 01 June 1964
• Docket Number: No. 5-3267,5-3267
• Parties: Brice VAN DALSEN et al., Appellants, v. Fred INMAN, Jr., Admr., et al., Appellees.
• Court: Arkansas Supreme Court

Page 261

379 S.W.2d 261

238 Ark. 237

Brice VAN DALSEN et al., Appellants, v. Fred INMAN, Jr., Admr., et al., Appellees.

No. 5-3267.

Supreme Court of Arkansas.

June 1, 1964.

Gannaway & Gannaway, Little Rock, for appellants.

Spencer & Spencer, El Dorado, Gregory & Claycomb, Pine Bluff, for appellees.

McFADDIN, Justice.

The Trial Court sustained the defendant's motion for summary judgment, and by this appeal the appellants challenge the correctness of such ruling. The appellants (plaintiffs below) are Brice Van Dalsen and the Railsback Tractor Company (hereinafter called 'Railsback'), and the real appellee (which was the defendant below) is Jim Walter Corporation. The action was for personal injuries sustained by Van Dalsen and property damage sustained by Railsback when a car driven by Fred Inman, Sr. collided with the Railsback vehicle. It was alleged that Inman was negligent and that he was at the time the servant of Jim Walter Corporation and acting within the scope of his employment.

In testing the correctness of the ruling of the Trial Court in granting the summary judgment for Jim Walter Corporation, we state the facts in the light most favorable to the appellants, giving them the benefit of all the evidence. Fred Inman, Sr. lived in Stuttgart and was a salesman for Jim Walter Corporation and engaged in selling shell homes. Mr. Inman furnished his own automobile and paid his own expenses, and his only compensation was a commission of approximately $100.00 on each shell home that he sold. The office of Jim Walter Corporation was in Pine Bluff, and at the times here involved Hollis Adams was the manager of the Pine Bluff office and B. J. Weiss was the office secretary. Whenever Mr. Inman had a prospect whom he believed ready to purchase, he contacted Mr. Adams in the Pine Bluff office, who went with Inman to close the sale. Inman was supposed to work every day. He selected his route and the prospects to see, but he kept the Pine Bluff office informed of his whereabouts.

Mr. Inman's wife was in a Little Rock hospital, and about 11:00 A.M. on Tuesday, February 13, 1962, Mr. Inman and his mother drove in Mr. Inman's car from his home in Stuttgart to visit Mrs. Inman. They reached the hospital shortly after 1:00 P.M. and visited with Mrs. Inman until about 2:00 P.M. From the hospital Mr. Inman and his mother drove to North Little Rock to visit Mr. Inman's sister. At about 4:45 P.M. Mr. Inman said: 'Mother, we must be going. I want to go through Pine Bluff and see my boss man.' Accordingly, Mr. Inman and his mother drove from Little Rock to Pine Bluff. ¹ The office of the Jim Walter Corporation was closed and Mr. Inman left a note under the door which note was to tell Mr. Hollis Adams that Mr. Inman had three named prospects and that Mr. Adams would please meet him at a given place the next morning between 9:00 and 9:30 A.M. in order to close a deal with one of the named prospects.

After leaving the note under the door of the Jim Walter Corporation office in Pine Bluff, Mr. Inman and his mother resumed their return trip to Stuttgart; and at about 6:30 P.M., and outside the city limits of Pine Bluff, his car collided with the Railsback vehicle being driven by Van Dalsen. Mr. Inman and his mother were both killed, apparently instantly. Van Dalsen was injured and the Railsback vehicle was damaged. This action was filed by Van Dalsen and Railsback against Fred Inman, Jr., Administrator of the Estate of Fred Inman, Sr., and also the Jim Walter Corporation. The estate of Inman made no defense (it being stated in the brief that it was insolvent); but the Jim Walter Corporation denied all liability, claiming that Fred Inman, Sr. was not a servant acting within the scope of his employment at the time of the collision. After numerous discovery depositions had been filed, the Jim Walter Corporation moved for summary judgment. The motion was sustained, and the correctness of that ruling as to the Jim Walter Corporation is the sole issue on this appeal.

I. Summary Judgment Procedure. By Act No. 123 of 1961 Arkansas adopted Rule 56 of the Federal Rules of Civil Procedure, which is our summary judgment statute, ² and is compiled as Ark.Stat.Ann. § 29-211 (Repl.1962). Some of our cases involving this summary judgment statute are: Russell v. City of Rogers, 236 Ark. (Adv.Op.) 713, 368 S.W.2d 89; Epps v. Remmel, 237 Ark. (Adv.Op.) 391, 373 S.W.2d 141; and Jones v. Comer, 237 Ark. (Adv.Op.) 500, 374 S.W.2d 465. In Russell v. City of Rogers supra, we said:

'Our recent summary judgment statute, Act 123 of 1961, is a re-enactment of Rule 56 of the Federal Rules of Civil Procedure. Ark.Stat.Ann. § 29-211 (Repl.1962). It provides that a summary judgment shall be rendered if the pleadings and proof on file show 'that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' It has been pointed out, under the Federal Rule, that the theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict. Moore's Federal Practice (2d Ed.), § 56.02(10). Hence any testimony that is submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.'

In the case at bar the burden rested on the movant, Jim Walter Corporation, to establish that there was no liability on its part under the facts most favorable to the plaintiffs. In other words, under the most favorable view of the facts to the plaintiffs, an instructed verdict would be given in favor of Jim Walter Corporation.

II. The Scope Of Employment. With the rule as to summary judgment thus understood, we weigh the evidence in this case; and we reach the conclusion that it establishes, without contradiction, that Mr. Inman was not in the scope of employment of Jim Walter Corporation at the time of the fatal collision, but was on a personal and private mission. In Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 125 S.W. 439, 27 L.R.A.,N.S., 124, Mr. Justice Frauenthal, speaking for a unanimous Court, stated the following applicable rules:

"When servant acts without reference to the service for which he is employed, and not for the purpose of performing the work of his employer, but to effect some independent purpose of his own, the master is not responsible for either the act or omission of the servant.' * * *

"The act of a servant done to effect some independent purpose of his own, and not with reference to the service in which he is employed, or while he is acting as his own master for the time being, is ordinarily held not to be within the scope of his employment as to render his master liable therefor."

In St. Louis, I. M. & S. Ry. Co. v. Robinson, 95 Ark. 39, 128 S.W. 60, we said:

"The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence in the course of his employment as servant. Thus, it will be seen that, in the absence of express order to do an act, in order to render the master liable, the act must not only be one that pertains to the business, but must also be fairly within the scope of the authority conferred by the...