Empire Gas & Fuel Co. v. Muegge

Citation143 S.W.2d 763
Decision Date23 October 1940
Docket NumberNo. 1831-7529.,1831-7529.
PartiesEMPIRE GAS & FUEL CO. v. MUEGGE et al.
CourtSupreme Court of Texas

The Court of Civil Appeals affirmed a judgment of the trial court in favor of defendants in error Muegge and Pardowski against plaintiff in error Empire Gas & Fuel Company for $1,358.20, on account of personal injuries and damage to their automobile truck and other property, sustained when the truck in which they were traveling turned over and was wrecked in avoiding collision with an automobile truck, loaded with a ditch-digging machine, which had become wedged in an underpass on a public highway. 116 S.W.2d 758.

Application for writ of error was granted on the assignment that the trial court erred in overruling the defendant's (plaintiff in error's) motion for an instructed verdict. All of the special issues submitted were answered favorably to defendants in error. By the jury's affirmative answers to Special Issues 1 and 2 liability was imposed upon plaintiff in error for the operation of the truck which was wedged in the underpass. The first special issue was: "Do you find from a preponderance of the evidence that the loaded Chevrolet Truck in question was owned or operated by the defendant, Empire Gas & Fuel Company, at the time, place and occasion complained of by the plaintiffs?"

The second special issue was: "Do you find from a preponderance of the evidence that the defendant, its employees, servants or agents, blocked the underpass on Highway No. 20, east of Brenham, at the time, place and occasion complained of, with the Chevrolet Truck loaded with ditching machinery?"

Plaintiff in error contends that the evidence did not raise these special issues, and that on the contrary it conclusively appears from the evidence that the truck was not owned by it, that the driver of the truck was not its employee, and that the truck was not being operated either by or for it. It becomes necessary to set out the evidence relied upon by defendants in error to charge plaintiff in error with liability for the negligent operation of the Chevrolet truck, and by reason of the nature of that evidence it will be necessary to set out also the evidence relied upon by plaintiff in error.

The accident occurred August 14, 1935. The truck which became wedged in the underpass was driven by one Warren Angel, a resident of Oklahoma. Ed Muegge, one of defendants in error, testified that a short time after the accident he asked the man driving the truck to furnish him his name and address and the number of the truck and that the man wrote on a piece of paper and gave it to him. The memorandum so written was admitted in evidence over the objection of plaintiff in error. It is: "Empire Gas & Fuel Company. Texas 162-347. Bartlesville, Okla., Warren Angel."

Defendants in error offered in evidence certified copies of two duplicate registration certificates. One of these certificates shows the registration of the Chevrolet truck in Gray County, Texas, on March 29, 1935, in the name of Empire Gas & Fuel Company as owner, and the other shows the registration of the same truck in Gray County on July 17, 1935, also in the name of Empire Gas & Fuel Company as owner.

A member of the Texas State Highway Patrol testified that after the accident, when the truck had been driven to the town of Brenham, he asked Warren Angel, whom he found in charge of the truck, to give him such registration certificates and permits as he had and that Angel gave him the two registration certificates and also a permit to transport the load over the highways. These Angel took from the truck. According to the testimony of the witness, the law requires truck drivers to carry such certificates and permits in their trucks at all times. The permit, a photostatic copy of which is in evidence, was issued at Paris, Texas, on August 12, 1935, by a division bookkeeper and a division engineer of the Texas Highway Department. By its terms it gives authority to Empire Gas & Fuel Company to transport the truck and its load, the ditch-digging machine, with an aggregate gross weight of 23,470 pounds, from Denison, Texas, to Yoakum, Texas, over a designated route.

The foregoing is a statement of the substance of all of the evidence offered by defendants in error, before they rested, bearing upon ownership or operation of the truck by plaintiff in error.

G. L. Wheatley testified by deposition as follows: He is and has been for nine years superintendent of the motor transport division of Empire Gas & Fuel Company, having supervision of the purchase, maintenance and operation of motor vehicles, and being in charge of registration of motor vehicles owned by the company. His office keeps a record of the registration of all the company's trucks. Empire Gas & Fuel Company has never owned the truck which was wedged in the underpass and the records of the company do not reflect that it ever owned it. In the questions the truck was identified by make, model and engine number. He never caused that truck to be registered in the State of Texas in the name of Empire Gas & Fuel Company and never authorized anyone so to register it. Empire Gas & Fuel Company did not have any operations at or near Yoakum, Texas, during the month of August, 1935, which would have necessitated the use of a ditching machine. He did not authorize anyone to obtain a permit in the name of Empire Gas & Fuel Company for the transportation of a ditching machine over the highways of the State of Texas during the month of August, 1935. He did not know until about September 1, 1935, that the truck was registered in the name of the Empire Gas & Fuel Company or that a permit had been issued in the name of said company to transport a ditching machine.

J. E. Howell, general superintendent of oil production of Empire Gas & Fuel Company, testified by deposition as follows: He has held such position for the past six years, his duty being to supervise the operations of all development and construction of the oil production division of the company. He has control of the operation of the company in the State of Texas. Warren Angel has never been employed by Empire Gas & Fuel Company in any capacity. During the month of August, 1935, Empire Gas & Fuel Company was conducting operations in various counties in Texas, but none at or near Yoakum. The company had no interest in the transportation of a ditch-digging machine from Denison, Texas, to Yoakum on or about August 14, 1935, and did not authorize J. R. Stewart or any other person to make application for a permit to transport it. J. R. Stewart was not employed by Empire Gas & Fuel Company in any capacity during the month of August, 1935. He first learned that the truck was registered in the name of Empire Gas & Fuel Company in the latter part of August or early part of September, 1935.

The testimony of Owen Hartness by deposition was offered by plaintiff in error and is in substance as follows: In August, 1935, he was engaged, as now, in the transfer and storage business in Pawhuska, Oklahoma, owning and operating nine trucks, among them being the Chevrolet truck identified by model and engine number as the truck which transported the ditch-digging machine from Denison, Texas, to Yoakum, Texas. He bought the truck about March 1, 1935, and has owned it since he bought it. The truck was used to transport a ditching machine from Denison, Texas, to Yoakum, Texas, in the month of August, 1935. As far as he knew the Empire Gas & Fuel Company had no connection with the transportation of the machine. In August, 1935, he leased the truck to J. R. Stewart, of J. R. Stewart Construction Company, to be used to transport the ditching machine and employed Warren Angel to drive the truck. Angel was paid by him but was to take his instructions from Stewart. He procured licenses for the truck in the states of Oklahoma, Texas, Missouri and New Mexico and paid the fees. Hartness testified that he registered the truck in Gray County, Texas, on March 29, 1935, in the name of the Empire Gas & Fuel Company. In explanation of such action, he testified that he had at about that time a contract with the Empire Gas & Fuel Company to move some material for it from Texas to Kansas and found that it was both overload and overlength and that he would have to procure a special permit, which required a bond in Texas, and that, on his own account and for his own convenience, he registered the truck in the name of the Empire Gas & Fuel Company, to save himself the time, trouble and expense of registering it in his name and giving a bond. Later the registration certificate was lost and at his instruction his employee, Frank Archambo, on July 17, 1935, in order to procure another license, registered the truck again in Gray County. This registration was made in the name of the Empire Gas & Fuel Company because the first registration was so made and for the same reason.

The testimony of J. R. Stewart by deposition was offered by plaintiff in error and is in substance as follows: He is and was in August, 1935, owner of J. R. Stewart Construction Company, engaged in the business of laying pipe lines. He was not employed in any capacity by Empire Gas & Fuel Company during August, 1935. That month he was engaged in...

To continue reading

Request your trial
109 cases
  • Davis v. City of Austin
    • United States
    • Supreme Court of Texas
    • March 17, 1982
    ...authority's boundaries, or (3) a statute directs that the personalty be taxed elsewhere. See generally, Empire Gas and Fuel Co. v. Muegge, 135 Tex. 520, 529, 143 S.W.2d 763, 768 (1940). Otherwise, the rebuttable presumption of law arising from the tax unit's prima facie case becomes conclus......
  • American General Insurance Co. v. Coleman
    • United States
    • Supreme Court of Texas
    • May 29, 1957
    ...event are not admissible. Lewis v. J. P. Word Transfer Co., Tex.Civ.App., 119 S.W.2d 106, 108, writ refused; Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 769; Stokes Bros. v. Thornton, Tex.Civ.App., 91 S.W.2d 756, 757, a venue case; Webb-North Motor Co. v. Ross, Tex.Civ.Ap......
  • EL Cheeney Company v. Gates
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 13, 1965
    ..."rebuttal" comes wholly from interested parties. The Court in Empire Gas & Fuel Co. v. Muegge, Tex.Com.App. opinion adopted, 1940, 135 Tex. 520, 143 S.W. 2d 763, phrases it this way. "It is settled in this state * * * that such presumption is not evidence but rather a rule of procedure or a......
  • Hunsucker v. Omega Industries
    • United States
    • Court of Appeals of Texas
    • July 27, 1983
    ...Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex.1971); Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057 (1940); Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763 (1940); City of Houston v. Wormley, 623 S.W.2d 692 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.); Nu-way ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT