Phillips v. Graves

245 S.W.2d 394, 219 Ark. 806, 1952 Ark. LEXIS 610
Supreme Court of Arkansas·Decided January 14, 1952·No. 4-9651·Published·Cited by 14 cases

Opinion

Holt, J.

This suit was originally brought by Ed Graves, appellee, against David Terrell, Jr. and appellant, George E. Phillips, for balance of $756.31 due on the purchase price of furniture which was destroyed by fire in Terrell’s home. The Northwestern Mutual Fire Association and its agent, James Shaw, were joined as defendants on the allegation by Graves that the furniture on which Graves had retained a lien was covered by a policy of insurance issued by the insurance company through its agent, Shaw, and that both the company, and Shaw personally, were liable.-

Terrell answered alleging that he was entitled to any protection that the insurance offered and that Graves had so agreed, and in a cross-complaint against Phillips, Terrell alleged that Billy Mormon, an employee of Phillips, while installing a gas stove in his (Terrell’s) residence negligently caused a fire which destroyed his furniture and in addition, clothing and other personal property belonging to him and his wife, in the amount of $1,222.31, and that his equity in the furniture amounted to $100, his down payment to Graves. He prayed for total damages in the amount of $1,322.31. Both Terrell and Graves alleged that the fire in question was caused through the negligence of Mormon, appellant’s employee.

Appellant denied any liability. A trial resulted in a decree containing these recitals: “The Court finds that the house belonging to David Terrell, Jr. and the furniture (which David Terrell, Jr. had purchased from the plaintiff, Ed Graves) and the other personal property in the house of a value of $1,222.31 was destroyed by fire, which fire was due to the negligence on the part of the agents and servants of George Phillips in the manner in which they installed a heater in the house and that as a result of said negligence the defendant George Phillips is liable to the defendant David Terrell, Jr. in the sum of $100, being the equity which David Terrell Jr. had in the furniture purchased from plaintiff Ed Graves, and is liable to David Terrell, Jr. an additional sum of $1,222.31 for other property belonging to David Terrell, Jr. which was destroyed by said fire; and is liable to the plaintiff Ed Graves in the stun of $756.31 being the amount of interest of Ed Graves in said furniture destroyed. 5. The Court further finds that the defendant James Shaw is entitled to be subrogated to the rights of the plaintiff Ed Graves and the defendant David Terrell, Jr. against George Phillips to the extent of $756.31 and costs for which Shaw is liable to Graves and Terrell. ’ ’

The cause against the insurance company was dismissed with prejudice and a decree was entered accordingly.

Appellant, Phillips, alone has appealed.

For reversal, appellant contends that the court’s finding that Mormon, an employee of appellant, was acting within the scope of his employment while installing the stove in Terrell’s home was against the preponderance of the evidence, that there was not sufficient proof of Mormon’s negligence, and “that the decree is excessive and not supported by proper evidence as to value of the personal property described.”

The evidence discloses that Billy Mormon and Winston Harrison were employees in a store of appellant in Arkadelphia, that appellee, Terrell, purchased the gas stove in question from Harrison for $7.20 and that Billy Mormon attempted to install it in Terrell’s home and while in the act of installing, gas escaped, ignited, and a fire resulted, destroying the house, furniture, clothing and personal property above mentioned. Appellant’s store in Arkadelphia was in charge of Harrison. Various kinds of household equipment, such as stoves, refrigerators, etc., were sold. Appellant also owned a store in Hot Springs where he spent most of his time. D. L. Ervey did all installations at appellant’s Hot Springs store and some in Arkadelphia.

Terrell testified that it was agreed that the stove was to be installed. Harrison denied this.

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Phillips v. Graves, 245 S.W.2d 394, 219 Ark. 806, 1952 Ark. LEXIS 610 (Ark. 1952).

245 S.W.2d 394 (Phillips v. Graves) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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