ARK.] MARSHALL ICE & tLECTRIC. 00. V. FITZHUGH. 305 MARSHALL ICE & ELECTRIC COMPANY V. 'FITZHUGH. 4.-097 Opinion delivered January 17, 1938. 1. PROCESS—WIAVER OF DEFECTIVE SERVICE. — Appellant corporation, by voluntarily entering its appearance, upon an igreeinent to do so, in consideration of a continuance of the case, could not later be heard to complain of the alleged defective service of process. W ITNESSES—IMPEACHMENT oF.—,—A witness may be impeached by showing that he had, on former occasions, made statements contradictory of his testimony. Pope's Dig., § 519'7. 3. APPEAL AND ERRORIVITNmss.—While a witness has the right to explain a statement made on a former occasion and to say • that, if he made a certain : statement, he had nOt understood the question asked, the effect of and the weight to be given thereto • :were questions for the jury. ' APPEAL AND ERROR.—In an ' tiction by , appellee for injuries sustained by his minor soil as a result Of a e011iSion Of the truck the son was driving with a truck driven 1:4 ;: -An 'alleged employee of appellant, evidence was sufficient to sustain the jury's finding that, at the time of the collision, the driver of appellant's truck was on a mission pertaining to the business of appellant. • Appeal from Izard Circuit Court; John L. Bledsoe, Judge; affirmed. W. F. Reeves, for appellants. John C. Ashley, for appellees. SMITH, J. This appeal is from a judgment awarding damages to appellee, who sued in his ownright and as next friend and father of his minor son,, for injuries sustained by the son as the result of a collision between
396 MARSHALL ICE & ELECTRIC CO. 'V. FITZMIGH. [195 a truck which the son Was driving and another truck driven by an alleged employee of appellant, a domestic corporation. - The question of the sufficiency of the service is raised, but may be disposed of by saying that the appellant corporation filed an answer containing a general denial of all the allegations of the complaint. It requested permission to withdraw this answer with leave to file a motion to quash the service, and the action of the court in overruling this motion is assigned as error. It appears, however, that a motion to quash was filed, npon which testimony was heard on March 23, at which time, before any ruling had been made by the court, it was agreed that the cause might be set down for trial on May 27, an adjourned day of the term. The order of the court granting the . continuance and setting the case for trial recites : ". . . to which date this cause is continued and defendants abandon all rights under their mOtion to quash 8ervice in filing their answer and continuing said cause to the 27th day of May, 1937." When the adjourned day arrived the court refused, at that time, to permit the withdrawal of the answer. There was no error in this ruling. Having voluntarily entered its appearance, upon an agreement to do so, in consideration of a continuance, the appellant corporation could not be heard thereafter to complain of the service of process. No complaint is made of the instructiohs under w.hich the cause was submitted to the jury. It is undisputed that Hugh Jennings, a defendant in the cause, was an employee of the corporation, and was driving one of its trucks at the time of the collision ; but it is insisted that Jennings was not then engaged in the pursuit of his employment, but was upon a mission having no relation to his employment. The principal question in the ease is whether the testimony is sufficient to support the verdict of the jury against the corporation based upon the finding that Jennings was pursuing his employment when the collision occurred. The appellant corporation operated a plant in Mar-shall, Arkansas, nsed in generating and distributing elec-trical-power and in the manufacture and sale of ice in
ARK.] MARSHALL ICE & ELECTRIC CO. v. FITZHUGH. 307 and around Marshall. Jennings had charge of this plant frOnt the hours- of 12 o'clock noon to 12 o'clook midnight. The-president, officers and- stookholders of appellant corporation are the same as those of the Calico Rock Ice & Electric : Company, a : corporation operating a smiliar :plant in-Calico Rock. : It was not-uncomm(n to carry ice 'by truck from one plant to the other as , the demands :of trade required, or when both plants were 'not :being operated. . , This service was Usnally performed by one Watts, an etnployee of the corporation, although on occasions it Was performed by Jennings. At the time of the collision the truck was transporting no ice or other commodity. In addition to being the manager of the plant.insMarshall, Jennings was the mayor of the town : of Marshall, and . he testified that on the day and at the time of the .collision he- wa g on his way! to Calico Rock to get a . pump to be used in teSting a well which the town of Mar g hall was installing, and that this mission had no relation to or connection With his employment by the corporation.. .The insistence is that the testimony is insuffiCient to support the contrary finding. • At the trial from which this appe -al comes. Jennings was cross-examined touching the testimony which hehad given on the preliminarY hearing above referred..to.upon the motion to quash the service, at which time he' stated that he was 'going to Calico . Rock:when the collision occurred to see' H. W. Wright, the president Of both corporations. He had been questioned . as follows : "Q. What were you going over : there for? A. To see him (Wright) on some business. Q. Connected with your plant? A. Yes, sir." This testimony was objected to upon the ground that it was -irrelevant and immaterial upon the issue•there involved, to-wit : that of quashing the service, and that the witness had not intended this answer to refer to: the plant at Marshall.- The testimony may* not have been relevant to that issue, but proof thereof waS competent to contradict the testimony of Jennings at tliY trial from which this appeal comes tO the effect that he was on : a 'mission haVing no -relation to his employment when the collisiOn oecurred.• Section . 5197 of Pope's Digest
398 MARSHALL ICE & ELECTRIC CO. v. FI'TZHUGH. [195 expressly provides that "A witness may •e impeached by the party against whom he is produced, by contradictory evidence by showing that he has made statements. different from his present testimony." The relevancy of the testimony to the point:there in issue is not.deter-minative of its competency when, later offered by •way . of impeachment. Statements contradicting the testimony at the trial, made at any time or place, would be competent. Jennings had the right to explain, as he did do, that•if he made this statement he had not understood the question. The effect and weight to be . given this admission, and the explanation thereof, were questions for the jury. As has been said, Jennings Was a party defendant, .and the judgment pronounced-upon the verdict of the jury was against him as well as against his employer. A §imilar question was presented and decided adversely to appellants' contentiOn in the case_ of Minas v: Ritchie Grocer Co., 183 Ark. 218, .35' S. W. 20010. In that case, as in this, it was insisted' that the •eMP1OYeé, in driving his employer's cal'; was not acting within the scope of his employment, and it .waS there said that if this were true no liability attached t6 the emPloyer by reason of the employee's negligence ;:but, upon the question whether the servant -was'in fact -in pursuit of his 'employment, it was said (tO ' quote aHheadnote in that caSe) that "The universal test a-the master's liabilitY for his servant's aCt is' whether there was authority; -0X-press or implied, for doing the -act:" . . In that case proof was made . of certain statements of the employee showing that he was acting within the scope of his employment. In answering an objection to their competency, Chief Justice ilART said: "It is true that it is well settled that the fact of agency..cannot be established by the declarations of the agent, hut this was not the purpose of the testimony. .The fact of agency had already 'been established by, evidence which was not -attempted to be contradicted.' The offered evidence was for the purpose of showing that Lewis was acting in the furtherance of his master's business or in the course of his employment as traveling salesman in a place where
ARK.] MARSHALL ICE & ELECTRIC CO. v. FITZHUGH. 399 bis duty called him, and the evidence vas competent -for that purpose." Appellee 'S case . does not rest solely upon the proof of this . admission. The testimony ., was otherwise sufficient to proVe the existence of the relation of employer and employee when the collision occurred. It is to the following effeet : Wright, the president of both corn-panieso. esided in Calico Rock, and the bank account of appellant .corporation was carried there for the 'reason that there'Vas'no - bank in Marshall. -Checks against the appellant corporation's account were drawn in Calico Rock Bills dne it were- collected in Marshall, and these collections Were carried, usually , about the lst of the month, to 'Calico Rock for deposit there, either by the president of the company or by an employee at Marshall. The certificate issued lay the State Utilities Commission shows the home office of appellant -corporation to be at Calico Rock. Jennings and another employee had charge of the collections at Marshall, and there was testimony to the effect that, in explaining why he was driving appellant's truck to 'Calico Rock, Jennings had said that "* * he was going over there to take , the payroll 'to Mr. Wright." Wright admitted that subsequent to the collision, but not prior thereto, Jennings, at his direction, had brought the collections for the current month to Calico Rock for deposit.. Collections we.re usually made on and near the lst of the month, and the collision occurred on the 6th:day of the month, and the jury may have fairly inferred- that they would be carried to Calico Rock about this 'time; . especially aS Jennings' testimony-in regard to his, mission is pot altogether convincing. The town well in . Marshall was not then ready to be tested, and Jen-nings..did not return with the pump, or any part of it, and mere inquiry concerning the pump could have been made either by letter or . by telephone. Ill the case . of illullirts V. Ritchie Grocer Co., supra, Chief Justice HART. also. said: "In a casenote to 42 A. L. R. at page 919, it is stated that proof that the automobile causing thc. damage belonged.-to- the defendant, and-was being- opernted' c afAW tithe Of the injury by 'an employee of the defendant, creates a reasonable Presumption that
400 the driver was aRing within the scope of his employment or in the course of his master's business. This presump, tion, however, is one of fact, and may be defeated or overcome . by testimony tending, to contradict it. : Our own court adopted this rule in the case of Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S. W. 6." We • ink the testimony above recited supports the deduction evidently made by tbe jury that Jennings was driving tbe truck in pursuit of his employment, . and we. cannot say as a matter of-law, although .jury -might have found as a matter of fact that the testimony to the. contrary had overcome any presumption to that effect. The sufficiency of the testimony to support the finding that •the negligence of Jennings caused the 'collisiOni is not questioned, nor is it seriously insisted that the ver.7 diet is so excessive that it may not be permitted to stand. The testimony' abundantly supports the verdict in both these respects. • No error appearing, the judgment must be . affirmed, and it is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.