Schmoll v. Hartford Casualty Insurance Co.

This case arises from an accident involving a tractor-trailer transporting cattle. The issues involve who is responsible for the burial of cattle killed in the accident on property owned by appellants Louis and Elizabeth Schmoll. The Schmolls assert that appellees Hartford Casualty Insurance Company; Ronny Kisner, d/b/a Circle K; and William Cole are responsible. The Conway County Circuit Court granted summary judgment in favor of Hartford, Kisner, and Cole.1 The Schmolls appeal. We affirm.

On December 17, 2002, Cole was driving a tractor-trailer owned by Kisner. Cole was transporting cattle when he allegedly fell asleep and wrecked. Several cattle were killed, others escaped. Hartford was Kisner’s insurance company. After the accident, Johnny Smith made provisions for the safe-keeping of the surviving cattle and for the disposal of the dead cattle. Smith took the surviving cattle to the stockyards operated on property owned by the Schmolls. Lloyd Elkins, acting at Smith’s direction, proceeded to bury the dead cattle in a shallow pit on the Schmolls’ property. Approximately three months later, the Schmolls discovered that the cattle had been buried on their property.

The Schmolls filed suit on December 22, 2003, asserting theories of trespass and negligence for the burial of the cattle on their property without permission. They alleged that Kisner and Cole were responsible for the cleanup of the accident proximately caused by their negligence in the operation of the truck. They also asserted that Smith was acting as an employee or agent of Hartford when he directed Elkins to bury the cattle. As damages, the Schmolls sought the amounts they spent to clean up their property and for damages to their business.

Kisner and Cole filed an answer in which they admitted that Cole was employed by Kisner but denied that Cole had caused the accident. They later filed a motion for summary judgment in which they asserted that the accident merely provided the conditions or occasion for subsequent events to become the proximate cause of the Schmolls’ damages and that the actions of Smith and Elkins were the efficient and intervening cause of the damages suffered by the Schmolls.

Hartford’s answer denied the material allegations of the complaint. Hartford also moved for summary judgment, arguing that the only connection it had with the case was the issuance of a policy to Kisner and that there was no proof that Smith or Elkins were acting as its agents.

According to Johnny Smith’s deposition testimony, the police dispatcher told him that an eighteen-wheeler had turned over and that they needed a truck and trailer to help haul cattle. When Smith arrived at the scene, it appeared that state trooper Mark Brice was in charge. Smith said that he began loading up the live cattle on his trailer, and then took them to a stockyard lot owned by the Schmolls. Smith testified that no one told him to take the cattle there, and he also admitted that he did not call the Schmolls to request permission. Smith said that he told Lloyd Elkins to take the dead cattle behind Paul Russell’s garage and bury them in a hole Elkins was to dig.

Smith further testified that, while he was at the scene of the accident, an employee of Hartford called him and inquired how many cattle, living and dead, there were. Smith told the Hartford representative that he had secured the live cattle at the stockyards. Smith said that Hartford did not offer any instructions to him about what to do with the live cattle or in the disposal of the dead cattle. Smith said that he assumed that he was hauling the cattle for Hartford. Everyone working on the cleanup submitted bills to Smith, who, in turn, submitted them to Hartford. Hartford sent Smith a check and he disbursed it to the proper people.

Lloyd Elkins testified that he was contacted by either the Arkansas State Police or Paul’s Wrecker Service. The caller told Elkins to bring his dump truck and backhoe to help load the dead cattle. When Elkins arrived at the scene, state trooper Mark Brice told him to take all of the dead cattle to the stockyards and dump them there. Elkins did as Brice instructed, making two trips to haul thirty-eight dead cattle. Elkins testified that Hartford did not give him any instructions with regard to disposal of the dead cattle. Elkins said that he believed that he was working for Smith. He also said that neither Kisner nor Cole, nor anyone from Hartford gave him instructions.

In his deposition, Louis Schmoll testified that the only proof he had that Smith was Hartford’s agent in the disposal of the cattle was that Hartford paid Smith. Schmoll also did not have any proof that either Kisner or Cole directed or controlled the salvage operation, including the disposal of the dead cattle, following the accident. Likewise, he did not have any proof that Hartford directed either Smith or Elkins to bury the cattle on his land other than Smith’s testimony about telephone calls from a Hartford representative.

On October 26, 2005, the motions for summary judgment were denied. On April 16, 2007, Kisner and Cole filed a motion for summary judgment as to damages and moved for reconsideration of their previous motion. The basis for the motion was that further discovery had revealed that the damages the Schmolls alleged that they had suffered were actually damages to two corporate entities owned by the Schmolls and that the statute of limitations had run on those claims because the Schmolls lacked standing to bring suit on behalf of the corporate entities. Hartford filed a similar motion and also asserted that there was no proof of actions on Hartford’s part that would establish that Smith and Elkins were acting as its agents.

In response, the Schmolls asserted that they did have standing because they owned the land leased to the corporate entities and that they had a vested interest in any income lost by the corporations. In addition, the Schmolls sought to amend their complaint to assert claims on behalf of the corporate entities. They alleged that the defendants would not suffer any prejudice as a result of the amendment. Hartford, as well as Kisner and Cole, filed motions to dismiss the Schmolls’ amended complaint, asserting that the statute of limitations had already run on the corporations’ claims.

The circuit court held a hearing on the motions for summary judgment and motions to dismiss the amended complaint on May 14, 2007. The court found that there was no proof as to the damages the Schmolls suffered as individuals. The court also found that the statute of limitations had run as to any claims the corporate entities may have had. Finally, the court found no proof that Smith or Elkins were agents of Hartford. Accordingly, summary judgment was granted to the defendants. The court further found that there was no issue of material fact as to whether Kisner and Cole were the proximate cause of the Schmolls’ individual claims. The court’s written order was filed on October 15, 2007. On November 6, 2007, the court issued an amended order that set forth the above findings and also contained a Rule 54(b) certification as a final order for purposes of appeal. This appeal followed.

We will approve the granting of a motion for summary judgment only when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Cumming v. Putnam Realty, Inc., 80 Ark.App. 153, 92 S.W.3d 698 (2002). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Id. On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Id.

The Schmolls raise two points, challenging the award of summary judgment to Kisner and Cole in the first point, and the summary judgment in favor of Hartford in the second point. In both points, they argue that jury questions were created, making summary judgment inappropriate.

The first issue is whether the negligence of Kisner and Cole in causing the accident was the proximate cause of the injuries the Schmolls suffered when Smith and Elkins buried the dead cattle on their property. Louis Schmoll testified that he did not suffer any damages from the accident itself; instead, his damages stemmed from the burial of the dead cattle on his property. Proximate causation is an essential element for a cause of action in negligence. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). When a party cannot present proof on an essential element of his claim, the moving party is entitled to summary judgment as a matter of law. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992); see also Bushong v. Carman Co., 311 Ark. 228, 843 S.W.2d 807 (1992). Although proximate causation is usually a question of fact for a jury, where reasonable minds cannot differ, a question of law is presented for determination by the court. Cragar v. Jones, 280 Ark. 549, 660 S.W.2d 168 (1983).

To accept the Schmolls’ argument that the mere timing of these events established a causal connection, we would have to engage in reasoning based on a logical fallacy known as post hoc ergo propter hoc, meaning “after this and therefore because of this.” Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 521 n. 8 (10th Cir.1987). This fallacy confuses sequence with consequence, and assumes a false connection between causation and temporal sequence. Post hoc ergo propter hoc is not sound as either evidence or argument. Wirth v. Reynolds Metal Co., 58 Ark.App. 161, 947 S.W.2d 401 (1997).2

Here, it might be foreseeable that Kis-ner and Cole would have an accident leading to the death of the livestock that they were transporting. It might also be foreseeable that any surviving animals would have been taken to the Schmolls’ property because it was the location of a stockyard and sale barn. However, it would stretch foreseeability to say that Kisner and Cole should have anticipated that someone over whom they had no control would improperly dispose of dead animals by burying them in a shallow pit on another person’s property without the landowner’s knowledge or consent. See Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001). Because the Schmolls cannot present evidence of a crucial element of their case, the circuit court correctly granted summary judgment to Kisner and Cole.

In their second point, the Schmolls argue that the circuit court erred in granting summary judgment to Hartford because there were factual issues of agency to be decided. The argument is that it is for the jury to determine whether there was a master-servant relationship between Hartford and Smith so as to impose liability upon Hartford.

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 to so act. Sterne, Agee & Leach, Inc. v. Way, 101 Ark.App. 23, 270 S.W.3d 369 (2007). Neither agency nor the extent of an agent’s authority can be shown by his own declarations in the absence of the party to be affected. Dixie Ins. Co. v. Joe Works Chevrolet, Inc., 298 Ark. 106, 766 S.W.2d 4 (1989); Zullo v. Alcoatings, Inc., 237 Ark. 511, 374 S.W.2d 188 (1964). The burden of proving an agency relationship lies with the party asserting its existence. Newberry v. Scruggs, 336 Ark. 570, 986 S.W.2d 853 (1999).

Here, all of the factors that the Schmolls claim indicate a master-servant relationship come from Smith’s testimony. In fact, Smith only assumed that he was working for Hartford. There is no evidence that Hartford ever directed Smith in the disposal of the cattle. The fact that Hartford directed Smith to submit bills for the cleanup does not indicate an agency relationship or that Hartford controlled Smith’s actions in the disposal of the cat-tie. Neither does the fact that Hartford paid Smith and he, in turn, disbursed the money to others. Hartford was obligated under its policy with Kisner to make payments for safeguarding the surviving animals and disposal of the dead animals. Further, it was not Hartford that asked Smith to assist with the cleanup; rather, it was law enforcement that called him out to the scene. According to Smith’s deposition testimony, it was trooper Brice who asked him to get the cattle off of the truck. The fact that Smith did so did not later transform him into Hartford’s agent when Hartford made inquiries to ascertain the scope of a loss that it was obligated to pay.

To hold that a factual question is presented because of Smith’s actions would mean that Smith was Hartford’s agent simply because he acted as such. However, it is the actions and words of the principal, Hartford, that create the agency and must be traced to that source. See Standard Mut. Ben. Corp. v. State, 197 Ark. 333, 122 S.W.2d 459 (1938). Louis Schmoll testified that he had no proof, other than Smith’s actions and Hartford’s payment, that Hartford controlled or directed Smith in the disposal of the dead cattle. Therefore, summary judgment for Hartford was proper.3

Affirmed.