Phillips v. Graves

245 S.W.2d 394, 219 Ark. 806, 1952 Ark. LEXIS 610
CourtSupreme Court of Arkansas
DecidedJanuary 14, 1952
Docket4-9651
StatusPublished
Cited by14 cases

This text of 245 S.W.2d 394 (Phillips v. Graves) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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

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.

Mormon testified: “Q. Are you sure that you had not installed heaters at private homes sold from Phillips’ store? A. Not any that I sold. Q. You installed heaters sold out of store previous to this occasion here? A. Yes. * * * How come you to go out there and install heater. A. There was really no one that sent me out. Cap came and asked me if I would do it. Q. Who is Cap ? A. David Terrell. * * * Q. What happened when you went out to install heater, what was the procedure? A. I went out, and almost any plumber will tell you, and was going to put the heater in, the cap on the pipe was loose enough to unscrew with your finger. When I took cap off, pipe fell under the floor. Q. Did you go around and see if all fires were off? A. No, I did not. Q. You did not check water heater? A. No. Q. The pipe, you say, fell below the surface of the floor? A. Your brother was with me at the time and I got him to stop gas on pipe to see if I could get under the house and push pipe up. Q. Was a cap there over pipe? A. Yes. Q. You came back in and took cap off? A. Yes. Q. And the house burned down? A. Yes. * * * Q. Mr. Harrison did not send you out to install this stove? A. No. Q. Was it your duty to install stoves? A. Mr. Phillips has never mentioned it to me about going and installing stoves. Q. You heard Mr. Terrell say you agreed to install this stove? A. That was between Mr. Terrell and me. Q. How did he get you to do it? A. He asked me to put up stove, that he was working. Q. Did you do it just on account of your personal acquaintance? A. Yes. He said he did not have time, was working and did not have time. Q. Who wer,e you considering you were helping out? A. Thought I was doing favor to Cap Terrell. # * * Q. What was said about the transportation out there? A. Mr. Harrison came to me and said we had no way to go out there and said he could not install the stove. Q. But Mr. Terrell came up about that time and said he would get you some transportation? A. Yes. Q. What about the connection? A. To best of my knowledge, it came from Clark County Supply Company. Q. Who went and got it? A. Mr. Terrell. * * * Q. All conversation with Mr. Harrison was that you could not install it? A. Yes. Q. When you went out to Terrell’s house did Harrison know you were going out there? A. Yes. Q. Did you lake tools with you? A. Yes—they were tools we had there in the store. * * * Q. And you had a truck for that purpose to carry stoves and install out to premises ? A. Yes. * * * Q. You had installed at least one stove before that and you got your equipment at this time at the store? A. Yes. Q. And the store manager knew what ■ you were going to do ? A. I told him I was going. Q. And got equipment from the store? A. Yes. * * * Q. But you did install stoves that you sold? A. Yes. Q. And you used store’s tools? A. Yes. Q. And you would have used store’s car if it had been there? A. I could not say what the situation would have been. Q. You had it available to deliver stoves? A. Yes. Q. But at this particular moment it was gone from place of business ? A. I really think it was at Hot Springs. * * * Q. You had the same authority to go do what was necessary to carry out a sale, if it was installing stoves, refrigerators, hooking it up, you had just as much authority as Mr. Harrison? A. I did not have to have authority from anyone if it is part of transaction in carrying out work. Q. You were supposed to do that? A. Maybe I went out against orders, I don’t know, I did not get orders to go. Q. Mr. Harrison did not object to your going out? A. No. Q. And he knew you were going? A. Yes. Q.

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Bluebook (online)
245 S.W.2d 394, 219 Ark. 806, 1952 Ark. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-graves-ark-1952.