{
  "id": 1449936,
  "name": "Payne, Administratrix, v. Fayetteville Mercantile Company",
  "name_abbreviation": "Payne v. Fayetteville Mercantile Co.",
  "decision_date": "1941-04-21",
  "docket_number": "4-6314",
  "first_page": "274",
  "last_page": "277",
  "citations": [
    {
      "type": "official",
      "cite": "202 Ark. 274"
    },
    {
      "type": "parallel",
      "cite": "150 S.W.2d 966"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
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  "cites_to": [
    {
      "cite": "200 Ark. 883",
      "category": "reporters:state",
      "reporter": "Ark.",
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    {
      "cite": "112 S. W. 2d 30",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "weight": 2,
      "opinion_index": 0
    },
    {
      "cite": "195 Ark. 216",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
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      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ark/195/0216-01"
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    {
      "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
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      "opinion_index": 0,
      "case_paths": [
        "/ark/194/0058-01"
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  "last_updated": "2023-07-14T17:41:33.899118+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Humphreys and Mehaeey, JJ., dissent."
    ],
    "parties": [
      "Payne, Administratrix, v. Fayetteville Mercantile Company."
    ],
    "opinions": [
      {
        "text": "Grieein Smith, C. J.\nB. C. Payne was fatally injured in October, 1937, when Carl Gray\u2019s automobile struck a bridge abutment on Highway No. 71 near Spring-dale, Arkansas. Appellee is a corporation doing a wholesale mercantile business. It employed Gray as a salesman, paying a fixed salary. There were no commissions. The salesman\u2019s \u201cterritory\u201d included Bentonville, Rogers, Siloam Springs, Springdale, Johnson, Fayetteville, Fort Smith, and other towns and wayside stores en route to the places mentioned. Gray paid his own expenses. For five years lie had used his own car. Appellee (hereinafter sometimes referred to as the company) did not require Gray to employ any designated means of transportation. Although there is testimony on behalf of the company that Gray might have gone by train, bus, or other conveyance, it is clear that the employer knew how Gray\u2019s trips were made; that at least inferentially the automobile was indispensable to the character of services rendered, that it was an integral 'contributing to the contract of employment, and that without it customer contacts would have been difficult. Hence, Gray was not an independent contractor over whose movements the employer had no control.\nPayne was salesman for Whittmore Bros. Shoe Polish Company. Appellant refers to him as a specialty man who called on jobbers and wholesalers to induce them to handle his employer\u2019s products; or, if such products were being handled, it was Payne\u2019s business to stimulate the business. It was customary for Payne to travel with salesmen representing jobbers and wholesalers. Approximately two weeks before Payne was injured he had been in Fayetteville and \u201carranged\u201d to return. The automobile wreck occurred on Friday. During all of the week Gray and Payne had traveled together.\nThere is testimony by the company\u2019s manager that Payne took orders for shoe polish and forwarded them to appellee at Fayetteville, where they were filled. \"Witness did not know Payne was traveling with Gray. Copies of orders taken by Payne were identified as having been written in books bearing the imprint of Fayetteville Mercantile Company. Payne was \u201csupposed\u201d to have brought his own ear to Fayetteville.\nAt the conclusion of appellant\u2019s testimony, appellee\u2019s motion for a directed verdict was sustained; hence, this appeal.\nThe issues, as stated by appellant, are (1) the master\u2019s liability under the doctrine of respondeat superior; (2) whether the guest statute applies, and (3) whether res ipsa loquitur may be relied upon as having establisted, prima facie, the negligence of appellee\u2019s servant, and through such servant the liability of appellee.\nWe are cited to Vincennes Steel Corporation v. Gibson, 194 Ark. 58, 106 S. W. 2d 173, and to Ward v. George, 195 Ark. 216, 112 S. W. 2d 30. In the latter case 'Blashfield\u2019s Cyclopedia of Automobile Law and Practice is quoted to the effect that one important element in determining whether a person is a guest within the meaning and limitations of such statutes is the identity of the person or persons advantaged by the carriage. The rule there announced is that if the transportation, in its direct operation, confers a benefit only on the person to whom the ride is given, and no benefits (other than such as are incidental to hospitality, companionship, etc.) accrue to the person extending the invitation, the passenger is a guest; but if the transaction tends to promote mutual interests, or if it is primarily for the attainment of some purpose of the operator of the car, the person to whom the invitation is extended is not a guest within the meaning of statutes enacted for the protection of persons operating automobiles in the circumstances contemplated. Blashfield\u2019s analysis of decisions relating to so-called guest statutes is referred to in Ward v. George, 195 Ark. 216, 112 S. W. 2d 30.\nSubstance of appellant\u2019s contentions is the advantage thought to have resulted to the company by reason of Payne\u2019s activities. It is conceded there were incidental pecuniary profits from the orders so procured; but, on the other hand, the only testimony clarifying the relationship is that appellant did not know Payne was accompanying Gray; that Gray paid all expenses of the several trips, and regarded Payne as his guest. Appellee\u2019s manager had seen Payne but once \u2014 about three weeks before the collision. Payne at that time stated he would return \u25a0 and \u201cwork the territory,\u201d and that he would take Gray with him. Gray\u2019s name and telephone number were given Payne by this witness.\nIn trying the case appellants were at a disadvantage in having to rely upon the testimony of appellee\u2019s manager and Gray to establish the relationship. On the other hand, there is no intimation these witnesses withheld any information or \u201ccolored\u201d their answers.\nIn result the evidence is that appellee did not authorize Payne to travel in Gray\u2019s car, since the assumption was that Payne would provide transportation and that Gray would accompany Payne. Gray received no profit from the transaction and merely accommodated Payne when the latter appeared in fulfillment of his commitment to the company that the territory would be canvassed, and that he would take Gray along.\nThe case is unlike Arkansas Valley Cooperative Rural Electric Company v. Elkins, 200 Ark. 883, 141 S. W. 2d 538. Wilson, appellant\u2019s agent, and at the time in question engaged in the master\u2019s business, invited Elkins to ride, with him in order that certain facts be ascertained from which appellant might designate a right-of-way which was being contributed by Elkins. We held that Elkins was directly assisting Wilson in discharge of the master\u2019s business and that he (Elkins) was not a guest.\nSince in the instant case the undisputed testimony is that Payne was expected to furnish his own ear and to take Gray with him, and in view of the fact that the arrangements were changed without appellee\u2019s knowledge, and there having been no direct advantage to Gray in having Payne with him, it must be held that Payne was a guest, as found by the trial court.\nAffirmed.\nHumphreys and Mehaeey, JJ., dissent.\nAct 61, approved February 20, 1935, and act 179, approved March 21, 1935. Pope\u2019s Digest, \u00a7\u00a7 1302, 1303, and 1304.",
        "type": "majority",
        "author": "Grieein Smith, C. J."
      }
    ],
    "attorneys": [
      "Hunter Lane, Karl Greenhaiv and Price Dichson, for appellant.",
      "Pearson & Pearson, for appellee."
    ],
    "corrections": "",
    "head_matter": "Payne, Administratrix, v. Fayetteville Mercantile Company.\n4-6314\n150 S. W. 2d 966\nOpinion delivered April 21, 1941.\nHunter Lane, Karl Greenhaiv and Price Dichson, for appellant.\nPearson & Pearson, for appellee."
  },
  "file_name": "0274-01",
  "first_page_order": 292,
  "last_page_order": 295
}