I regret that I cannot agree with the majority in this case, for I am of the opinion that the evidence, viewed in the light most favorable to appellee, as we are required to do, is not sufficient, under our previous holdings, to fix liability on appellant. The vital question in the case is: was the truck that struck and injured appellee owned by appellant and operated at the time by its employee in its business? The appellee did not know whose truck it was, did not know who the driver of it was and at first thought it was a yellow truck. He thought it was a yellow truck so strongly that he employed counsel who brought an action for him in the Garland circuit court against the Shell Petroleum Company in which he sought damages in the sum of $3,000 for his injuries. He says his uncle did this but it was done with his knowledge and consent. Buck Dodson who was riding in the roadster with appellee at the time of his injury testified it was a yellow truck with a bed on it, the kind used for hauling gas tanks, and looked like it had a tank on it and an overhanging body where five-gallon cans can be placed on the side of the on tank. It is conclusively shown that appellant does not own any yellow colored trucks.
One witness for appellee, Lefler, testified that he saw the accident and that the truck that struck appellee passed him on the highway. He was asked whose truck *Page 394 it was and answered: "Plunkett-Jarrell Grocery truck. I seen the sign on the door." And that it was 1 1/2-ton truck with a stick body and a tarpaulin. This was all the evidence tending to show that it was appellant's truck that struck appellee. No witness undertook to say who the driver was or that the truck and driver were on any business for appellant. Forgetting for the moment the proof on behalf of appellant, conclusive to my mind, that it had no truck on that highway on the date of the injury further out of Hot Springs than Batterson's store, some two miles from the scene of the accident, and that its truck was not involved in same, and assuming that Lefler's testimony is sufficient to take the question of the ownership of the truck to the jury, still there is no proof as to who the driver was, whether an employee of appellant or not, or whether, if an employee, he was about his master's business, or on a mission of his own. We have never held bare proof of ownership of the car is sufficient, and no case will be found in our reports to that effect. Suppose a thief had stolen appellant's car, had the accident and returned the car, or suppose the driver had loaned it to a friend to go on a mission of his own. It seems to me that ownership and relation of employer and employee, master and servant, or principal and agent, must be shown. Then a rebuttable presumption of fact arises that the car was operated in the master's business. In Terry Dairy Co. v. Parker, 144 Ark. 401,223 S.W. 6, there was no dispute about the ownership of the truck. Appellant not only owned the truck but paid the license on it. The question in dispute was, not the identity of the driver, but whether he was an employee or an independent contractor. This question was held to have been properly submitted to the jury, and it was held that since it was appellant's truck and, as found by the jury, operated by his employee: "This was prima facie evidence, at least, that the truck was being operated for appellant at the time appellee was injured." Also in Mullins v. Ritchie Grocer Company, 183 Ark. 218, 35 S.W.2d 1010, there was no question about the ownership of the car, nor as to who the driver was or whether he was *Page 395 an employee of the appellee. The court said: "Lewis, a salesman and collector for the Ritchie Grocer Company, was furnished an automobile by the company to use in the furtherance of his master's business. He was in the general employ of the master and was allowed the exclusive use and control of the automobile. The accident happened on a week day; and, under the authorities above cited, this made a prima facie case in favor of appellant upon proof of negligence. The negligence of Lewis was proved, and, in fact, was conceded by counsel for appellee. The prima facie case made by proof of the facts stated was not overcome merely by proof that Lewis, by the terms of his employment, was not required to work on Saturday. Such evidence was a circumstance only tending to show that he was not acting in the course of his employment at the time the accident occurred. Neither can it be said that the fact that the accident occurred at eleven o'clock, which was after usual business hours, overcomes or defeats the prima facie case made by appellant. It is a matter of common knowledge that servants in the discharge of their duties often are delayed or prevented from completing their work during usual business hours. In the present case, the fact that the order blanks of the company were in the car was a circumstance, however slight, it might be deemed by the jury, tending to show that Lewis was in the furtherance of the business of the company at the time the accident occurred. See Duckworth v. Stephens, 182 Ark. 161,30 S.W.2d 840."
The same thing is true as to Casteel v. Yantis-Harper Tire Co. 183 Ark. 912, 39 S.W.2d 306, and Arkansas Baking Co. v. Wyman, 185 Ark. 310, 47 S.W.2d 45. A mere reading of these cases shows they are not authority for appellee in this case.
Here, the only proof is that a truck having appellant's name on the door struck appellee. We are asked to presume from that not only that it was appellee's truck, but that it was being operated by its employee on its business. Before I can give my consent to take $10,000 *Page 396 away from appellant and give it to appellee, something more must be shown.
I respectfully dissent and am authorized to say Mr. Justice SMITH concurs with the views here expressed.