{ "id": 8725549, "name": "Page Lumber Company v. Carman", "name_abbreviation": "Page Lumber Co. v. Carman", "decision_date": "1949-03-07", "docket_number": "4-8770", "first_page": "784", "last_page": "788", "citations": [ { "type": "official", "cite": "214 Ark. 784" }, { "type": "parallel", "cite": "217 S.W.2d 930" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "202 S. W. 229", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "133 Ark. 327", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1575122 ], "opinion_index": 0, "case_paths": [ "/ark/133/0327-01" ] }, { "cite": "225 S. W. 597", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "146 Ark. 104", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1584978 ], "opinion_index": 0, "case_paths": [ "/ark/146/0104-01" ] }, { "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": "201 Ark. 675", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723556 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/201/0675-01" ] }, { "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": "213 Ark. 390", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467007 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/213/0390-01" ] }, { "cite": "198 Ark. 17", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459808 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/198/0017-01" ] } ], "analysis": { "cardinality": 483, "char_count": 8460, "ocr_confidence": 0.529, "pagerank": { "raw": 1.23131435712375e-07, "percentile": 0.6057414930368528 }, "sha256": "1243ca6738e986ee98115ec011705995843439bb2efe59c08f129951add3b937", "simhash": "1:b96d7bd5e2b4f9ce", "word_count": 1490 }, "last_updated": "2023-07-14T15:29:26.096089+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Page Lumber Company v. Carman." ], "opinions": [ { "text": "Holt, J.\nSeptember 20, 1947, a Ford automobile of appellees, residents of Louisville, Kentucky, collided with a Dodge trailer truck on Fair Park Blvd., in Little Rock. The truck belonged to appellant, Page Lumber Company, a partnership composed of J. 0., Emmett and Homer Page, and was being driven at the time by Charles Page, a nephew of J. 0. Page. Appellees brought the present suit to recover for personal injuries and damages to their automobile, alleged to have been caused by the negligence of appellant\u2019s employee, Charles Page, while operating appellant\u2019s truck in the scope of his employment.\nAppellants answered with a general denial. A jury trial resulted in a verdict for appellees against both the Page Lumber Company and Charles Page, the truck driver. From the judgment is this appeal.\nFor reversal, appellants say: \u201cThe only question presented by this appeal is whether or not the evidence is sufficient to support the verdict against the Page Lumber Company.\u201d\nAppellant, Page Lumber Company, was composed of J. 0., Emmett and Homer Page. Charles Page, a nephew of J. 0. Page, was not a member of this partnership. At the time of the collision of the cars in question there was substantial evidence which warranted the jury\u2019s finding that Charles Page was an employee of the Page Lumber Company and the collision and damages complained of were the result of his negligence and the judgment against him must be affirmed. It does not follow, however, that the judgment against the Page Lumber Company should be permitted to stand.\nWhile, as we said in Brooks v. Bale Chevrolet Company, Inc., 198 Ark. 17, 127 S. W. 2d 135, \u201cit is true that if an automobile causing an accident belongs to the defendant and is being operated at the time of the accident by one of the regular employees' of the defendant, there is reasonable inference that at such time the employee was acting within the scope-of his employment and in furtherance of the master\u2019s business,\u201d however, \u201cthis is only a prima facie presumption or inference,\u201d \u2014 and may be rebutted, and in Ford & Son Sanitary Company v. Ransom, 213 Ark. 390, 210 S. W. 2d 508, we said: \u201cThe defendant company, to avoid liability, was then obliged to introduce substantial proof directed to the negation of scope of employment. When the defendant company introduced such proof, the presumption (arising from ownership and driving of the vehicle) had served its purpose, and disappeared, so that if \u2014 independent of such presumption \u2014 there was no evidence to dispute the defendant\u2019s proof, and if such proof contained no substantial contradictions in itself, then there would have been no evidence to take the case to the jury on the \u2018scope of employment\u2019 theory.\u201d\nIn order to bind the master, the Page Lumber Company here, \u2018 \u2018 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\n\u201cIn the more recent case of Carter Truck Line v. Gibson, 195 Ark. 994, 115 S. W. 2d 270, it is said: \u2018The 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. 8. 124. . . . And 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 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 \u201d Lindley v. McKay, 201 Ark. 675, 146 S. W. 2d 545.\nIn one of our leading cases, Hunter v. First State Bank of Morrilton, 181 Ark. 907, 28 S. W. 2d 712, on this test of a master\u2019s liability in circumstances such as are presented here, this court said: \u201cAgain, in Wells Fargo & Co. Express v. Alexander, 146 Ark. 104, 225 S. W. 597, it was held that the test of a master\u2019s liability for his servant\u2019s tortious acts is not whether they were done during the existence of the servant\u2019s employment, hut whether they were committed in the prosecution of the master\u2019s business, and pertained to the particular duties of the servant\u2019s employment. . . .\n\u201cIn a case note to 32 A. L. R. at page 1398, it is said that it is the well-established general rule that an owner of an automobile is not liable for an injury or for damage resulting from the negligent operation of his car by his employee while the latter is using it for his own purposes without the owner\u2019s permission or consent, since, to hold the latter liable, the relation of master and servant must exist at the time, and the act must be within the scope of the servant\u2019s authority. Among the numerous cases cited is Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, L. R. A. 1918D, 115.\u201d\nStating the testimony in its most favorable light in support of appellees, it was to the following effect: The collision occurred about 11 o\u2019clock, Saturday morning, September 20, 1947. \u2022 The Page Lumber Company, which operated a saw mill, was not operating on that day. Charles Page went to the mill on that morning to procure his pay. He testified that while at the mill, he took the truck in question without the knowledge or permission of any member of the Page Lumber Company, to use it in transporting groceries from a store some ten blocks from his residence; that it was raining at the time. On his way home with the truck the collision in question occurred. In response to the following comment of appellee, Mrs. Christine Carman: \u201cLook what you have done to us,\u201d Charles Page said: \u201clam sorry, lady, I lost control of my truck.\u201d She then asked the truck driver what he intended to do about it and Charles Page said: \u201cI will have to call my boss.\u201d Charles Page testified that he did phone his boss and reported the accident. The truck was empty at the time.\nJ. 0. Page testified: (Appellees\u2019 brief) \u201cThat he, his son. Emmett, and his brother, Homer Page, owned the Page Lumber Company; that the truck involved in the collision on September 20, 1947, was his truck: that he did not know it was gone from the mill until Charley Page called him and said he had had an accident on Fair Park Boulevard\u201d; that Charles Page took the truck without his knowledge or consent; \u201cthat Charley Page is his nephew; that Charley Page had worked for the Page Lumber Company as driver of a log truck, but was not working on the day of the accident; that he didn\u2019t remember whether they worked Friday or Thursday; that he doesn\u2019t know whether the truck involved in the collision was one regularly assigned to Charley Page or not; that Emmett looked after that; that he, J. 0. Page, takes care of the saw mill and sales end of it and Emmett looks after the woods and trucks; that he, J. 0. Page, wouldn\u2019t know one truck from another to tell the truth about it. \u2019 \u2019 He further testified: \u2018 \u2018 Q. Did you see this automobile? A. Went to the place and saw the condition of everything and I saw it wasn\u2019t my fault.\u201d\nEmmett Page testified that Charles Page was employed as a truck driver.\nAfter a careful review of all the evidence, we have reached the conclusion that there is no substantial evidence in this record, when considered in its most favorable light, and with every reasonable inference deducible therefrom, in favor of appellees, to support a verdict and judgment in their favor under the governing rules set out supra.\nWhile, as we have indicated, there was substantial evidence of Charles Page\u2019s negligence and that he was an employee of the Page Lumber Company at the time of the collision, we find no evidence that he was about his master\u2019s business, or in the course of his employment, at the time.\nThe trial court therefore erred in denying appellant\u2019s request for an instructed verdict in favor of the Page Lumber Company at the close of all the testimony.\nThe judgment against the Page Lumber Company is reversed, and since the cause appears to have been fully developed, it is dismissed.\nThe judgment against Charles Page is affirmed.", "type": "majority", "author": "Holt, J." } ], "attorneys": [ "W. W. Shepherd, for appellant.", "J. Fred Jones, for appellee." ], "corrections": "", "head_matter": "Page Lumber Company v. Carman.\n4-8770\n217 S. W. 2d 930\nOpinion delivered March 7, 1949.\nW. W. Shepherd, for appellant.\nJ. Fred Jones, for appellee." }, "file_name": "0784-01", "first_page_order": 822, "last_page_order": 826 }