{ "id": 8723556, "name": "Lindley v. McKay", "name_abbreviation": "Lindley v. McKay", "decision_date": "1941-01-13", "docket_number": "4-6155", "first_page": "675", "last_page": "680", "citations": [ { "type": "official", "cite": "201 Ark. 675" }, { "type": "parallel", "cite": "146 S.W.2d 545" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "106 S. W. 2d 173", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 58", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718014 ], "opinion_index": 0, "case_paths": [ "/ark/194/0058-01" ] }, { "cite": "28 S. W. 2d 712", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "181 Ark. 907", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725973 ], "opinion_index": 0, "case_paths": [ "/ark/181/0907-01" ] }, { "cite": "27 L. R. A., N. S., 124", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "125 S. W. 439", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "93 Ark. 397", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546882 ], "opinion_index": 0, "case_paths": [ "/ark/93/0397-01" ] }, { "cite": "115 S. W. 2d 270", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 994", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725841 ], "opinion_index": 0, "case_paths": [ "/ark/195/0994-01" ] }, { "cite": "48 Am. Rep. 10", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "40 Ark. 298", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897121 ], "opinion_index": 0, "case_paths": [ "/ark/40/0298-01" ] } ], "analysis": { "cardinality": 477, "char_count": 7786, "ocr_confidence": 0.508, "pagerank": { "raw": 2.0023343651726355e-07, "percentile": 0.7431240199718208 }, "sha256": "b2d6ea945b9a8a1e9d624d4e58f841884f4ef427e39bf9c15137f7e23ff3bd04", "simhash": "1:89611d3b8db47e9e", "word_count": 1349 }, "last_updated": "2023-07-14T22:44:11.265597+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Humphreys and Mehaeey, JJ., dissent." ], "parties": [ "Lindley v. McKay." ], "opinions": [ { "text": "Holt, J.\nAppellees, five in number, brought suit against appellant, Lester Lindley, to recover damages alleged to have been caused by the negligence of appellant\u2019s employee in starting a fire on tbeir premises. The separate causes were consolidated for trial. Verdicts were returned for appellees ranging from $200 down to $25, or for a total amount of $700. From judgments entered on these verdicts, this appeal comes.\nThe complaint alleged that Britt Pierce, an employee of appellant, Lindley, while acting in the scope of his employment, carelessly and negligently started the fire which caused the damage. All allegations in the complaint were denied by appellant.\nIt is first contended by appellant that the evidence was not sufficient to submit the case to the jury.\nOn this issue, the record reflects that appellant, Lindley, was operating a truck line through Arkansas along and over paved highway No. 64 in Franklin county, and that in the conduct of his business some of his trucks were driven by lease operators and some by appellant\u2019s employees.\nSeptember 26, 1939, Britt Pierce, appellant\u2019s employee, while driving one of appellant\u2019s trucks from Memphis, Tennessee, to Kansas City, Missouri, over highway No. 64, in Arkansas, picked up a \u201chitch hiker,\u201d Ace Garrett, in Little Rook, who requested a ride to Springdale, Arkansas. As this truck approached a point in Franklin county called \u201cFisher Hill,\u201d a truck approached from the opposite direction driven by Reece \"Wilson, one of appellant\u2019s lease operators, and an acquaintance of Pierce and Garrett. The two trucks drove off the pavement a few feet and stopped. According to the record, this stop was made to give Ace Garrett, the \u201chitch hiker,\u201d an opportunity to endeavor to secure a position from Reece Wilson. The stop was made around the noon hour and lasted some 30 or 40 minutes. After the three men had alighted from the trucks, Wilson produced a watermelon, which they proceeded to consume, and while thus engaged in eating the watermelon, one of the three cast aside a lighted cigarette which started a fire causing the damages alleged.\nAs to who started the fire, appellee, Ed L. McKay, testified that he saw the trucks stop and observed the name \u201cLindley\u201d on them. One of the men wore a brown suit with the name \u201cLindley\u201d on it and another had on gray striped overalls without any name on them. He reached the trucks shortly after the fire blazed up and the man in the brown suit said, \u201cWe, or I, threw down the cigarette.\u201d They had been eating a watermelon. He -did not know who threw down the cigarette.\nAnother appellee, Isaac Mayner, who reached the scene about the same time that McKay arrived, corroborates McKay\u2019s testimony.\nThere was some other testimony on behalf of appel-lees of probative value. On behalf of appellant, Ace Garrett testified that he threw down the cigarette that started the fire. In this statement he is corroborated by Brit Pierce and Wilson. We cannot say, however, when all the testimony is considered, that as a matter of law, there was no substantial evidence to support the jury\u2019s finding on this issue.\nIt is, however, earnestly insisted by appellant that even though we should conclude the evidence sufficient to establish that appellant\u2019s employee, Britt Pierce, actually started the fire, there can be no recovery for the reason that, at the time of starting- the fire, Britt Pierce was not in the performance of the business of his employer, appellant, Lindley, but had stepped aside from his employment.\nWe think this contention of appellant must be sustained. The undisputed proof in this case discloses that the purpose for which these trucks stopped on the side of the road was to afford Ace Garrett an opportunity to contact Reece Wilson in an effort to secure employment. After stopping- for this purpose, Wilson produced a watermelon which the three men proceeded to consume. On the record here, no act was performed during this stop that could be deemed in the furtherance of the master\u2019s business or done by appellant\u2019s employee, Britt Pierce, while in performance of any duty required of him. The stop was made without appellant\u2019s knowledge or consent and solely, we think, for the accommodation of Ace Garrett.\nIn a case of this kind the test is not.whether the negligent act was committed while the servant was in the employ of the master, but whether it was committed at a time when the servant was performing an act in furtherance of the master\u2019s business or in line with the servant\u2019s duty.\nThe rule has been stated as early as the 40th Arkansas Reports in the case of Little Rock & Fort Smith Ry. Co. v. Miles, 40 Ark. 298, 48 Am. Rep. 10. There this court said: \u2018 \u2018 The rule. is firmly established that the master is civilly liable for the tortious acts of his servant whether of omission or commission, and whether negligent, fraudulent, or deceitful, when done in the line of his employment, even though the master did not authorize or know of such acts, or may have disapproved of or forbidden them. . . . But the act must be done, not only while the servant is engaged in his master\u2019s service, but it must pertain to the particular duties of that employment. \u2019 \u2019\nIn the more recent case of Carter Truck Line v. Gibson, 195 Ark. 994, 115 S. W. 2d 270, it is said: \u201cThe act of the servant for which the master is liable must pertain to something that is incident to the employment for which he is hired, and which it is his duty to perform, or be for the benefit of his master. Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 125 S. W. 439, 27 L. R. A., N. S., 124.\n\u201cAnd if the servant steps aside from the master\u2019s business to do an independent act of his own and not connected with his master\u2019s business, then the relation of master and servant is for such time, however short, suspended; and the servant, while thus acting\u2019 for a purpose exclusively his own, is a stranger to his master, for whose acts he is not liable. ... If a servant completely turns aside from the master\u2019s business and pursues business entirely his own the master is not responsible. \u2019 \u2019\nAnd again in Hunter v. First State Bank of Morrilton, 181 Ark. 907, 28 S. W. 2d 712, this court said: \u201cIt is generally stated by text writers and in judicial decision that the test of the liability of the master for his servant\u2019s acts is whether the latter was at the time acting within the scope of his employment. The phrase \u2018in the scope of his employment or authority,\u2019 when used relative to the acts of the servant, means while engaged in the service of his master or while about his master\u2019s business. It is not synonymous with \u2018during the period covered by his employment\u2019.\u201d\nAppellee calls to our attention the recent case of Vincennes Steel Corporation v. Gibson, 194 Ark. 58, 106 S. W. 2d 173, and insists that it controls here. We think, however, that [here is a marked distinction between that case and the instant case. It must be apparent that all of these cases must turn largely upon the particular facts in each. In the Vincennes case the facts were, quoting from the opinion, \u201calthough the fire was set out by one of the employee\u2019s smoking, there is no evidence that he, at any time, departed from the business of the master. \u2019 \u2019\nIn the instant case, however, as indicated, we think there was a clear departure on the part' of the employee; Britt Pierce, from the business in which he was engaged, and, therefore, the Vincennes case does not control.\nFor the error indicated, the judgment is reversed, and since the cause seems to have been fully developed, it will he dismissed.\nHumphreys and Mehaeey, JJ., dissent.", "type": "majority", "author": "Holt, J." } ], "attorneys": [ "Rex W. Perkins, for appellants.", "J. E. Yates and Partain S Agee, for appellees." ], "corrections": "", "head_matter": "Lindley v. McKay.\n4-6155\n146 S. W. 2d 545\nOpinion delivered January 13, 1941.\nRex W. Perkins, for appellants.\nJ. E. Yates and Partain S Agee, for appellees." }, "file_name": "0675-01", "first_page_order": 693, "last_page_order": 698 }