{ "id": 1453616, "name": "Patricia McMAHAN v. John BERRY", "name_abbreviation": "McMahan v. Berry", "decision_date": "1994-12-19", "docket_number": "94-405", "first_page": "88", "last_page": "94", "citations": [ { "type": "official", "cite": "319 Ark. 88" }, { "type": "parallel", "cite": "890 S.W.2d 242" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "316 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907767 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0148-01" ] }, { "cite": "43 Ark. App. 149", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139224 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/43/0149-01" ] }, { "cite": "317 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443878 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0563-01" ] }, { "cite": "229 Ark. 297", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1702674 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/229/0297-01" ] }, { "cite": "63 S.W.2d 971", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1933, "opinion_index": 0 }, { "cite": "187 Ark. 1107", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1432144 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/ark/187/1107-01" ] }, { "cite": "215 Ark. 301", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464706 ], "weight": 4, "year": 1949, "opinion_index": 0, "case_paths": [ "/ark/215/0301-01" ] }, { "cite": "203 Ark. 894", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1446921 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/ark/203/0894-01" ] }, { "cite": "230 Ark. 105", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1700096 ], "weight": 2, "year": 1959, "pin_cites": [ { "parenthetical": "quoting from 2 CJ.S. Agency \u00a7 23 at 1048 which now appears in 2A CJ.S. Agency \u00a7 54 (1972) at 630" }, { "parenthetical": "quoting from 2 CJ.S. Agency \u00a7 23 at 1048 which now appears in 2A CJ.S. Agency \u00a7 54 (1972) at 630" } ], "opinion_index": 0, "case_paths": [ "/ark/230/0105-01" ] }, { "cite": "682 S.W.2d 733", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1985, "opinion_index": 0 }, { "cite": "284 Ark. 376", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878639 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/284/0376-01" ] }, { "cite": "291 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872592 ], "weight": 3, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0180-01" ] }, { "cite": "316 Ark. 195", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907769 ], "weight": 3, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0195-01" ] } ], "analysis": { "cardinality": 572, "char_count": 10236, "ocr_confidence": 0.881, "pagerank": { "raw": 8.830167384061184e-08, "percentile": 0.49790702083403315 }, "sha256": "e401379aa48ca8f9d7301dff96063462c99f3506b400ba20076cea114edbd4e6", "simhash": "1:95cceb2a5b3cf6a2", "word_count": 1751 }, "last_updated": "2023-07-14T15:29:57.133828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Patricia McMAHAN v. John BERRY" ], "opinions": [ { "text": "Steele Hays, Justice.\nThis dispute arises from an automobile collision. Appellant Patricia McMahan\u2019s son, Christopher Clifton, was involved in an automobile accident with appellee John Berry. The jury returned a verdict against Christopher Clifton for $5,000 in compensatory damages and $7,500 in punitive damages. The jury returned a verdict against appellant McMahan for $5,000 in compensatory damages. Ms. McMahan appeals from that judgment.\nAs John Berry was attempting to turn left from State Highway 4 near Warren, he was struck from the rear by Christopher Clifton\u2019s vehicle. The title to the Clifton vehicle was in Patricia McMahan\u2019s name. Berry filed suit against McMahan and Clifton for personal injuries and property damage. Berry alleged that Clifton was negligent in the operation of the vehicle, that McMahan negligently entrusted her vehicle to Clifton, and that McMahan, as owner of the vehicle, had control and responsibility for the vehicle so as to render her liable for negligent operation. The trial court granted McMahan\u2019s motion for directed verdict on the claim of negligent entrustment but held there was a question of fact as to whether an agency relationship existed between McMahan and Clifton.\nOn appeal, McMahan contends (1) the trial court erred in giving instructions relating to agency and (2) the trial court erred in allowing verdict forms with the appellant\u2019s name on them to be submitted to the jury. We find the trial court erred in instructing the jury regarding agency and reverse.\nAppellant McMahan objected to the proposed jury instructions because there was no proof of agency. Without responding directly to the objection, the trial court instructed the jury regarding agency. The instructions provided in part:\nAn agent is a person who, by agreement with another called a principal, acts for the principal and is subject to his control. The agreement may be oral or written or implied from the conduct of the parties and may be with or without compensation.\nIf one person has the right to control the action of another at a given time, the relationship of principal and agent may exist at that time, even though the right to control may not have actually been exercised.\nOne of the vehicles involved in this case was driven by Christopher Clifton, the vehicle being owned by Patricia McMahan. You may consider these facts along with any other evidence in the case in deciding whether Christopher Clifton was acting as agent for Patricia McMahan, his parent, at the time of the occurrence.\nThis instruction was based upon AMI Civ. 3rd 701 and AMI Civ. 3rd 706. AMI 706, however, was modified. AMI 706, Agency \u2014 Minor Driver\u2019s Parent A Passenger, provides in part:\n[The vehicle] [One of the vehicles] involved in this case was driven by_, the minor child of__, who was a passenger in the vehicle [and owned the vehicle],\n(Emphasis supplied.)\nThe question is whether Mr. Berry presented sufficient evidence of agency to submit the case to the jury. The burden of proving an agency relationship lies with the party asserting its existence. Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994). The two essential elements of an agency relationship are (1) that an agent have the authority to act for the principal and (2) that the agent act on the principal\u2019s behalf and be subject to the principal\u2019s control. Id. In Schuster\u2019s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987), we examined the question of agency in connection with a family relationship. We wrote:\nIn general, the relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control and that the other consents so to act. Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985). Our court also has recognized the rule that an agency may be implied where one by his conduct holds out another as his agent, or thereby invests him with apparent or ostensible authority as agent, and he thereby becomes liable as the principal for the acts of the one held out or apparently authorized to act as agent, whether or not he actually intended to be bound. Lemm v. Sparks, 230 Ark. 105, 321 S.W.2d 388 (1959) (quoting from 2 CJ.S. Agency \u00a7 23 at 1048 which now appears in 2A CJ.S. Agency \u00a7 54 (1972) at 630). Finally, and certainly relevant to the situation now before us, we have held that mere relationship or family ties, unaccompanied by any other facts or circumstances, will not justify an inference of agency \u2014 but such relationship is entitled to great weight, when considered with other circumstances, as tending to establish the fact of agency. Braley v. Arkhola Sand & Gravel Co., 203 Ark. 894, 159 S.W.2d 449 (1942).\nIndeed, it is well established that a parent is not liable for the negligence of a son or daughter when operation of the parent\u2019s automobile caused damage in circumstances where the relationship of principal and agent, or master and servant, did not exist. Bonner v. Surman, 215 Ark. 301, 220 S.W.2d 431 (1949); Layes v. Harris, 187 Ark. 1107, 63 S.W.2d 971 (1933).\nIn the instant case, Christopher Clifton was eighteen years of age at the time of the accident and Patricia McMahan, his mother, was the legal owner of the vehicle he was operating. However, there is no evidence of a principal and agent relationship. The only testimony regarding the extent of Ms. McMahan\u2019s control over either Clifton or the vehicle occurred during direct examination of Clifton by counsel for the appellee:\nQ. Okay. And the vehicle was in your mother\u2019s name, is that right.\nA. Yes, sir.\nQ. And you obtained the vehicle to go to the river, is that correct?\nA. No, sir. I didn\u2019t obtain the vehicle for that specific \u2014 to go to the river, no, sir.\nQ. Okay.\nA. The vehicle was mine. I had bought and paid for the vehicle. It was just in my mother\u2019s name.\nQ. If it was in her name then she had control of the vehicle?\nA. Yes, sir.\nQ. And she allowed you to use that vehicle that day, is that right?\nA. Yes, sir.\nClifton testified he was not living with his mother at the time of the accident. He stated he was living with his uncle in Banks, Arkansas, because his mother was working for a nursing agency in Little Rock. Finally, there was no testimony that Clifton was acting in any way to benefit his mother. He was on his way to his uncle\u2019s home after attending a senior class party.\nThis case is comparable to Bonner v. Surman, supra, where Bobby Bonner, eighteen years of age, caused a collision with a parked truck while driving his mother\u2019s car. Judgment for $2,000 was entered against Rachael Bonner on the theory that \u201cBobby Bonner was in and about the business of Rachel Bonner\u201d when the collision occurred. Bobby Bonner usually covered his newspaper route on a bicycle; however, he borrowed his mother\u2019s car on the day of the accident. It was undisputed that Mrs. Bonner did not have a contract to deliver the newspapers and that her son\u2019s work, although permissive, was on his own account. The testimony indicated Bobby had at times used his earnings to purchase personal clothing, but he did not contribute to the household upkeep such as buying groceries. The Court noted the collateral benefit received by Mrs. Bonner was what she may have saved in the purchase of clothing for Bobby, due to his voluntary act in applying some of his money in that way. In reversing the judgment against Mrs. Bonner, the Court found that she did not exercise any element of control over the money and any benefit was, at most, uncertain.\nFurther, it is significant that AMI 706 (Agency \u2014 Minor Driver\u2019s Parent A Passenger) is specifically designed for instances in which the parent is a passenger in the vehicle. When the parent is a passenger in the vehicle, there are circumstances other than mere relationship or family ties that may justify an inference of agency. In such a situation there is a presumption that the parent exercises some control over the child. See Callaway v. Cherry, 229 Ark. 297, 314 S.W.2d 506 (1958). However, the presumption is not applicable here because Ms. McMahan was not a passenger in the vehicle.\nWhile agency is normally a question of fact, it becomes a question of law when the facts are undisputed, and only one inference can reasonably be drawn. Dodds v. Hanover Ins. Co., 317 Ark. 563, 880 S.W.2d 311 (1994). We cannot say Mr. Berry presented sufficient evidence for a jury instruction on agency. The mere fact that Ms. McMahan owned the vehicle her son was driving does not suffice. See Bonner v. Surman, supra; Schuster's, Inc. v. Whitehead, supra.\nThe appellee submits that appellant failed to obtain a ruling from the trial court to her objections to the instructions on agency, citing Hobbs v. State, 43 Ark. App. 149, 862 S.W.2d 285 (1993). The record reflects that in chambers the trial judge indicated his intention to give the disputed instruction and the verdict forms. Counsel objected to the instructions, as we have said, for lack of evidence of agency and to the verdict forms on the basis of confusing the jury. Counsel proffered verdict forms which asked the jury whether it found from a preponderance of the evidence that Christopher Clifton was acting as agent for his mother, Patricia McMahan, at the time of the collision. The trial judge acknowledged the objection and the proffered verdict forms and proceeded to instruct the jury. Ordinarily a ruling by the trial court is essential, as we have often said issues left unresolved below cannot be considered on appeal. Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994).\nHowever, counsel objected to the agency instruction, stating correctly why it should not be given. The trial court then proceeded to give the errant instruction. The giving of the instruction effectively became the ruling and we can see no sound reason why more should be required.\nFor the reasons stated, the judgment appealed from is reversed as to the appellant and the complaint as to her is dismissed.", "type": "majority", "author": "Steele Hays, Justice." } ], "attorneys": [ "Howell, Trice & Hope, P.A., by: Scott G. Lauck, for appellant.", "Wells Law Office, by: Bill G. Wells, for appellee." ], "corrections": "", "head_matter": "Patricia McMAHAN v. John BERRY\n94-405\n890 S.W.2d 242\nSupreme Court of Arkansas\nOpinion delivered December 19, 1994\nHowell, Trice & Hope, P.A., by: Scott G. Lauck, for appellant.\nWells Law Office, by: Bill G. Wells, for appellee." }, "file_name": "0088-01", "first_page_order": 122, "last_page_order": 128 }