{
  "id": 1633255,
  "name": "W. H. BABBITT v. Bill GORDON",
  "name_abbreviation": "Babbitt v. Gordon",
  "decision_date": "1972-02-28",
  "docket_number": "5-5799",
  "first_page": "1112",
  "last_page": "1116",
  "citations": [
    {
      "type": "official",
      "cite": "251 Ark. 1112"
    },
    {
      "type": "parallel",
      "cite": "476 S.W.2d 795"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "245 Ark. 558",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1606900
      ],
      "weight": 2,
      "year": 1968,
      "opinion_index": 0,
      "case_paths": [
        "/ark/245/0558-01"
      ]
    },
    {
      "cite": "444 S. W. 2d 72",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "case_ids": [
        1600715
      ],
      "year": 1969,
      "opinion_index": 0,
      "case_paths": [
        "/ark/247/0009-01"
      ]
    },
    {
      "cite": "247 Ark. 8",
      "category": "reporters:state",
      "reporter": "Ark.",
      "year": 1969,
      "opinion_index": 0
    },
    {
      "cite": "244 Ark. 312",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8719497
      ],
      "weight": 2,
      "year": 1968,
      "opinion_index": 0,
      "case_paths": [
        "/ark/244/0312-01"
      ]
    },
    {
      "cite": "238 Ark. 418",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1734280
      ],
      "weight": 3,
      "year": 1964,
      "opinion_index": 0,
      "case_paths": [
        "/ark/238/0418-01"
      ]
    },
    {
      "cite": "245 Ark. 825",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1606733
      ],
      "weight": 2,
      "year": 1969,
      "opinion_index": 0,
      "case_paths": [
        "/ark/245/0825-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 469,
    "char_count": 8694,
    "ocr_confidence": 0.834,
    "pagerank": {
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      "percentile": 0.6102172366033696
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    "sha256": "bc84452b06c4495f26bcd9fd175ac1158b3e8012f29195755a19d213f71aa5c3",
    "simhash": "1:2b3a0804f85439aa",
    "word_count": 1497
  },
  "last_updated": "2023-07-14T18:18:57.175988+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Harris, C. J., not participating.",
      "Jones, J., dissents."
    ],
    "parties": [
      "W. H. BABBITT v. Bill GORDON"
    ],
    "opinions": [
      {
        "text": "Frank Holt, Justice.\nThe appellee brought this action against the appellant to enforce payment of a $750 check representing the purchase price of a boat motor and accessories and to recover a $50 charge for modifying appellant\u2019s boat transom to fit the motor equipment. By answer the appellant denied the claim alleging that appellee installed the motor on appellant\u2019s boat without authority and in a negligent manner by failing to employ adequate and proper bolting devices, as well as failing to warn appellant\u2019s 16-year-old son that the motor was not securely installed which resulted in the motor being wrenched free and lost in the Arkansas River one day following the mounting of the motor when the boat and motor were being operated by appellant\u2019s son. Appellant counterclaimed for the purchase price of the motor; $140 which he had paid to a diver in an effort to retrieve the motor; and $50 for damages to his boat. The court, sitting as a jury, resolved the issues by awarding judgment against the appellant for the agreed $750 purchase price and dismissed appellant\u2019s counterclaim.\nFor reversal the appellant asserts that the trial court erred in holding that the appellee was \u201cmerely the seller of an engine,\u201d and that the loss of the motor was due to the negligence of appellant\u2019s minor son. Further, that if appellant\u2019s son were negligent, it was not imputable to appellant. Of course it is well settled that on appeal we review in the light most favorable to the appellee, the evidence and all reasonable inferences deducible therefrom and must affirm if there is any substantial evidence to support a jury\u2019s or trial court\u2019s findings. Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S. W. 2d 822 (1969); American Metal Window Co. v. Watson, 238 Ark. 418, 382 S. W. 2d 576 (1964).\nThe evidence is undisputed that the appellant went to appellee\u2019s home, after a telephone conversation, and inspected the motor appellee had advertised for sale; that appellant later that day called appellee on the phone and offered him $650 which appellee refused because the motor was equipped with a hydraulic power lift; that the parties agreed upon the $750 purchase price; that later in the day appellant sent his 16-year-old son with instructions to get the motor equipment and deliver his personal check (payment was later stopped) to appellee and then take the motor to a local boat dealer for installation; that the motor had such accessories as controls and a hydraulic power lift, one-third of which was bolted or welded to the engine at the time of the sale as an integral part of the motor; that appellant\u2019s son \u00e1ppeared driving a camper truck pulling appellant\u2019s boat; and that it was then discovered that the motor unit would not fit appellant\u2019s boat. Appellee denied that he was aware of the type boat on which appellant intended to use the motor. The appellee adduced evidence that the youth became very concerned about the immediate use of the boat and after requesting the use of appellee\u2019s telephone the boy returned and stated that he had talked with his father [appellant] who told him \u201cto check with you [appellee] to see if you can help and what can be done.\u201d It appears that appellant was leaving town for the weekend. At the insistence of appellant\u2019s son, the appellee, for an additional charge of $50, agreed to cut down the transom or the back of appellant\u2019s boat to accommodate the motor; \u201chang\u201d the motor on the boat, install certain controls and test fire the motor. It appears undisputed that it was specifically agreed that the appellee would not mount the hydraulic power lift or hook up the power steering apparatus. The appellee proceeded that evening and the next morning to cut the transom and mount the motor on the boat in accordance with this agreement. The engine, excluding the attached power lift, was tightly bolted on with two factory clamps and two bolts through the bottom legs of the engine and the transom. The unattached two-thirds part of the power lift was put in appellant\u2019s truck when the boy returned for the motor the next day (Saturday). Appellee testified that the engine was bolted down \u201cfor travel on the boat\u201d and warned appellant\u2019s son that the power lift was not installed and he would have to have additional installation. Appellee and his witnesses testified that the power lift was an integral part of the motor and that it holds or secures the motor to the boat. Appellant\u2019s son did not take the motor to the local dealer as instructed by his father, nor for additional installation as warned by appellee. With the aid of his girl friend\u2019s father, they hooked up the steering apparatus on the boat. The next day appellant\u2019s son and this girl were using the boat on the river when the boat tilted, the motor wrenched loose and was lost in the river.\nAppellant testified that he had observed the motor and agreed to purchase it with appellee\u2019s assurance it would fit appellant\u2019s boat; that he had sent his son to deliver the check with instructions to take the boat to a certain marine dealer for installation and that he had not discussed installation with appellee when he purchased the motor. Appellant could not recall a telephone call from his son and denied ever authorizing his son to make the asserted agreement with appellee. Appellant\u2019s son admitted on cross-examination that: \u201cIt seems like I remember using the phone * * * I\u2019m sure I tried to call him [appellant].\u201d The boy denied that appellee warned him that there was anything defective about the motor installation. His girl companion could not recall that appellee warned them that the boat was not \u201cwater worthy\u201d or said anything about the necessity of further installation. Another companion testified that appellant\u2019s son attempted to make a phone call to someone; that he understood that appellee was to bolt the motor on the transom and that appellant\u2019s son would have to get a local dealer to hook up the controls; and that from his knowledge of motors, the power lift would not assist in securing the motor to the boat. The local marine dealer testified that in his opinion appellee\u2019s mounting of the motor on appellant\u2019s boat was improper and would not measure up to the standard of workmanship generally employed by boat mechanics, and that the type or size of bolts used by appellee would not be used even for temporary installation. On cross-examination he did agree that if the power lift were installed with the 12 additional bolts it would give \u201cadditional security on the motor.\u201d He later testified, however, that the installation of the power lift would not aid in securing the motor to the boat so as to prevent shearing of the undersized bolts.\nAppellee, a state policeman who was not in the business of selling boat motors, testified that he had agreed with appellant\u2019s son that: \u201cI will bolt it exactly as it was bolted on my boat with this exception. I won\u2019t fool with the power lift.\u201d Further, that as the boy was leaving he warned him: \u201cGo get your steering gear fixed up. Go get your power lift put on and when you do that the engine will be set on your transmission exactly as it had been on mine and I\u2019d used mine for 6 years. The same engine. The same power lift.\u201d He also testified that if the power lift were installed there would have been 12 more bolts through the transom securing the engine to the boat. Appellee\u2019s testimony as to the circumstances surrounding this transaction was corroborated by his wife and two other witnesses.\nIt is strictly within the province of a jury or the trial court, sitting as a jury, to reconcile any conflicts in the testimony of the witnesses. Sardin v. Roberts, 244 Ark. 312, 424 S. W. 2d 889 (1968). We cannot disturb a finding or verdict merely because the evidence is contradictory and, of course, the court\u2019s findings, as a fact finder, have the same verity as a jury. Pike County School Dist. No. 1 v. Pike County Board of Education, 247 Ark. 8, 444 S. W. 2d 72 (1969); Green v. Maddox, 245 Ark. 558, 433 S. W. 2d 144 (1968). The extent and nature of an agent\u2019s authority, when in dispute, is a question for the fact finder. American Metal Window Co. v. Watson, supra. These rules of law being long established, it follows that when we review the evidence most favorably to the appellee, with all reasonable inferences deducible therefrom, as we must do, there is substantial evidence to support the trial court\u2019s findings.\nAffirmed.\nHarris, C. J., not participating.\nJones, J., dissents.",
        "type": "majority",
        "author": "Frank Holt, Justice."
      }
    ],
    "attorneys": [
      "Spitzberg, Mitchell & Hays; By: Beresford L. Church, Jr., for appellant.",
      "Virginia (\u201cGinger\u201d) Atkinson, for appellee."
    ],
    "corrections": "",
    "head_matter": "W. H. BABBITT v. Bill GORDON\n5-5799\n476 S.W. 2d 795\nOpinion delivered February 28, 1972\nSpitzberg, Mitchell & Hays; By: Beresford L. Church, Jr., for appellant.\nVirginia (\u201cGinger\u201d) Atkinson, for appellee."
  },
  "file_name": "1112-01",
  "first_page_order": 1134,
  "last_page_order": 1138
}