{ "id": 8726031, "name": "United Transport Inc. v. Wilson", "name_abbreviation": "United Transport Inc. v. Wilson", "decision_date": "1958-04-14", "docket_number": "5-1522", "first_page": "1058", "last_page": "1063", "citations": [ { "type": "official", "cite": "228 Ark. 1058" }, { "type": "parallel", "cite": "312 S.W.2d 191" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "200 F. 2d 722", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1281254 ], "opinion_index": 0, "case_paths": [ "/f2d/200/0722-01" ] }, { "cite": "214 Ark. 784", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725549 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/214/0784-01" ] }, { "cite": "201 Ark. 675", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723556 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/201/0675-01" ] }, { "cite": "207 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481825 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/207/0345-01" ] }, { "cite": "83 S. W. 2d 830", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "191 Ark. 156", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1418526 ], "opinion_index": 0, "case_paths": [ "/ark/191/0156-01" ] }, { "cite": "209 S. W. 69", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "137 Ark. 341", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1568008 ], "opinion_index": 0, "case_paths": [ "/ark/137/0341-01" ] }, { "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": "230 S. W. 598", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "148 Ark. 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719027 ], "opinion_index": 0, "case_paths": [ "/ark/148/0227-01" ] }, { "cite": "238 S. W. 50", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "152 Ark. 258", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364131 ], "opinion_index": 0, "case_paths": [ "/ark/152/0258-01" ] }, { "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": "27 L. R. A. N. S. 124", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 1 }, { "cite": "202 S. W. 229", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "133 Ark. 327", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1575122 ], "opinion_index": 1, "case_paths": [ "/ark/133/0327-01" ] }, { "cite": "125 S. W. 439", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "93 Ark. 397", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546882 ], "opinion_index": 1, "case_paths": [ "/ark/93/0397-01" ] } ], "analysis": { "cardinality": 657, "char_count": 10588, "ocr_confidence": 0.516, "pagerank": { "raw": 1.0023585922950444e-07, "percentile": 0.5392314378174171 }, "sha256": "7ac142944fd29feeb47f7ebf5d18c58ed54c4967db9e319fb36f420549bea262", "simhash": "1:92e33b1f8ea3721b", "word_count": 1891 }, "last_updated": "2023-07-14T20:19:24.371217+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Millwee and George Rose Smith, JJ., dissent.", "Millwee, J., joins in this dissent." ], "parties": [ "United Transport Inc. v. Wilson." ], "opinions": [ { "text": "Paul Ward, Associate Justice.\nThe question is: Was appellant\u2019s employee, a truck driver, acting within the scope of his employment when he injured appellee? Over appellant\u2019s objections, the question was submitted to a jury which gave appellee $1,250 actual damages and $500 exemplary damages.\nWe agree with appellant that the record contains no substantial evidence to support the above verdict and the judgment of the Court.\nOn December 31, 1957 Ernest Eugene Wilson, the estranged husband of appellee, was driving appellant\u2019s truck from Memphis through Texarkana, enroute to Tulsa, carrying a load of automobiles, when he was contacted by appellee, his estranged wife. The two effected a temporary reconciliation and spent the night together. It was agreed that appellee would meet Ernest on his way back from Tulsa and return to Memphis (where they had formerly lived) with him, in convoy, driving her own car. Either because appellee left Ernest a note, as claimed by Mm, or because of a pre-arranged plan, as stated by appellee, Ernest went by the home of ap-pellee\u2019s parents near Ogden (a short distance from Tex-arkana) about 2:30 A. M. on the morning of January 3, 1958. Appellee was at the home of her parents, and, supposedly, they were to get together there and proceed on to Memphis. What took place there determines the issue in this case.\nAppellee\u2019s version of the difficulty that followed, the cause of her injury, and the preceding circumstance is as follows: We were separated, and he was under a peace bond. I am in the process of divorcing him. It was dangerous for me to stay with him \u2014 he beat me up lots of times. He said he would be in about 11 o \u2019clock the night of the 2nd, but he wasn\u2019t in until about 3 o\u2019clock in the morning of the 3rd. We were to make the trip back to Memphis. When he arrived I said \u201cI have the car packed but I am not ready. I think we should have a talk.\u201d He said, \u201cget in here. It\u2019s warm in here,\u201d meaning the cab of the truck. The motor was running. I told him I thought we should have a talk before I went back with him \u2014 we were having so much trouble. We started talking, and I didn\u2019t believe I would leave. He said I shouldn\u2019t go back to Memphis if I didn\u2019t go with him. Then he cursed me, and I told him I wasn\u2019t going to leave with him. We quarreled about property. I said I wouldn\u2019t give him anything, and he wouldn\u2019t give me the keys to the house in Memphis. We only discussed our personal affairs \u2014 matters strictly between the two of us. I finally got mad. He wanted me to get out. He said \u201cget the hell out; I\u2019m going.\u201d He didn\u2019t give me time. He pushed me and I fell. He let his foot off the clutch. The truck moved and I fell backwards. At the same time he shoved me he let off the clutch. I was injured, and stayed in the hospital until the doctor said I would be all right.\nIt clearly appears from the above factual statement, we think, that Ernest Eugene Wilson was not acting within the scope of his employment, as a truck driver for appellant, at the time appellee was injured, or during the events transpiring immediately prior thereto. We cannot escape the conclusion that Ernest was in no manner engaged in anything pertaining to his master\u2019s business. The business in which he and his estranged wife were engaged at the time can hardly he described more clearly than was done by appellee herself. She said they only discussed personal relationship matters strictly between themselves. According to appellee\u2019s own account her injury was the result of a personal quarrel and the willful acts of her husband. By no stretch of the imagination can we see how any of these acts tended in any way to promote the interest of appellant. The mere fact that Ernest was, at the time, an employee of appellant is not decisive of the question in favor of ap-pellee. The acts of Ernest which caused the injury complained of must have been in the discharge of a duty he owed his master before appellant here would be responsible. Many expressions from the opinions of this court sustain these asserted rules.\nIt was held that the negligent acts of an elevator operator were not within the scope of his employment in Sweeden v. Atkinson Improvement Co., 93 Ark. 397, 125 S. W. 439. In reaching this conclusion the court among other things said:\n\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 the master. It is therefore necessary to see in each particular case what was the object, purpose and end of the employment and what was the object and purpose of the servant in doing the act complained of. The mere fact that he was in the service . generally of the master . . . would not make the act attributable to the master. The act must have been done in the execution of the service for which he was engaged. 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 Ms own, is a stranger to Ms master for whose acts lie is not liable.\u201d\nWe find tMs expression in American Railway Express Co. v. Davis, 152 Ark. 258, 238 S. W. 50:\n\u201cWe have frequently announced and steadily adhered to the rule that \u2018the test of liability of a master for a tort committed by a servant is whether the act complained of was done in the prosecution of the master\u2019s business \u2014 not whether it was done during the existence of the servant\u2019s employment.\u2019 \u201d\nIn American Railway Express Company v. Mackley, 148 Ark. 227, 230 S. W. 598, the court approved this rule:\n\u201c \u2018Where a servant acts without reference to the service for which he is employed, and not for the purpose of performing the work of the employer, but to effect some independent purpose of his own, the master is not responsible for either the acts or omissions of the servant.\u2019 \u201d\nMany other cases announcing the same rules in similar language could be cited. Some of them are: Wells Fargo & Company Express v. Alexander, 146 Ark. 104, 225 S. W. 597; Chicago Mill & Lumber Company v. Bryeans, 137 Ark. 341, 209 S. W. 69; Pickens v. Westbrook, 191 Ark. 156, 83 S. W. 2d 830; C. J. Horner Company v. Holland, 207 Ark. 345, 180 S. W. 2d 524; Lindley v. McKay, 201 Ark. 675, 146 S. W. 2d 545; Page Lumber Company v. Carman, 214 Ark. 784, 217 S. W. 2d 930, and; Capital Transportation Company v. Armour & Co. (Ark.) 200 F. 2d 722. In the Carman case, supra, the court said, quoting, that, \u201cIf a servant completely turns aside from the master\u2019s business and pursues business entirely his own the master is not responsible.\u201d As stated in the Machley case, supra, the rules of law governing the liability of a master in this kind of case have been made plain, but the difficulty in most cases is in determining whether or not the servant has stepped aside from the employment. We do not find this difficulty here.\nConsidering the facts of this case in the light most favorable to appellee and applying the rules above an-nouneed, the only reasonable conclusion we can reach is that Ernest Eugene Wilson was not acting within the scope of his employment when he caused the injury to ap-pellee. For that reason the judgment of the trial court is reversed and the cause of action is dismissed.\nReversed.\nMillwee and George Rose Smith, JJ., dissent.", "type": "majority", "author": "Paul Ward, Associate Justice." }, { "text": "George Rose Smith, J., dissenting.\nIt should first be observed that this case does not involve a material deviation from the servant\u2019s authorized route, as was true, for example, in Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, L. R. A. 1918D, 115. Here the home of Wilson\u2019s father-in-law abutted the highway that Wilson was traveling in the course of his employment; he parked on the shoulder of the road in order to talk with his wife. Had Wilson started his truck after the conversation and negligently struck a stranger standing by the road, it goes without saying that the liability of the master would have been an issue for the jury.\nHere, however, the evidence indicates that Wilson acted willfully and maliciously, rather than with carelessness only, and the jury so found, by its award of punitive damages. This finding absolves the master of liability only if the undisputed evidence shows that Wilson\u2019s intentional conduct was actuated solely by a personal motive.\n\u201cAn act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed. . . . It is the state of the servant\u2019s mind which is material.\u201d Rest., Agency, \u00a7 235. \u201cThe fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. If the purpose of serving the master\u2019s business actuates the servant to any appreciable extent, the master is subject to liability if the act otherwise is within the service. . . .\u201d Ibid., \u00a7 236. Mechem puts the matter accurately in \u00a7 1929 of his work on Agency: \u201cIt is obvious, therefore, that the question of the principal\u2019s or master\u2019s liability cannot always be determined merely by putting a label on the motive. Tlie motive is important, bnt it is important not so much, for the purpose of determining how the act was done as to aid in deciding whose act it was.\u201d See also Prosser on Torts (2d Ed.), \u00a763.\nI do not understand our oivn cases to be contrary to the views just mentioned; indeed, the majority\u2019s quotation from Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 125 S. W. 439, 27 L. R. A. N. S. 124, is fully in accord with the position taken by the textwriters on the subject.\nIn this case I should agree with the majority if Wilson had simply pushed his wife violently from the truck; that conduct would undoubtedly have been actuated solely by a personal motive. But here Wilson said, \u2018 \u2018 G-et the hell out; I\u2019m going,\u201d and the starting movement of the vehicle contributed to the appellee\u2019s injuries. Since I am unable to say positively and unequivocally that the purpose of serving his master\u2019s business did not actuate Wilson \u201cto any appreciable extent, \u2019 \u2019 I am of the opinion that the evidence presented a question for the jury.\nMillwee, J., joins in this dissent.", "type": "dissent", "author": "George Rose Smith, J., dissenting." } ], "attorneys": [ "William H. Arnold III and Arnold & Arnold, for appellant.", "Shaver, Tackett & Jones, for appellee." ], "corrections": "", "head_matter": "United Transport Inc. v. Wilson.\n5-1522\n312 S. W. 2d 191\nOpinion delivered April 14, 1958.\nWilliam H. Arnold III and Arnold & Arnold, for appellant.\nShaver, Tackett & Jones, for appellee." }, "file_name": "1058-01", "first_page_order": 1084, "last_page_order": 1089 }