317 F.2d 609 (5th Cir. 1963), 19777, Employers Mut. Cas. Co. of Des Moines v. Mosqueda

Docket Nº:19777.
Citation:317 F.2d 609
Party Name:EMPLOYERS MUTUAL CASUALTY COMPANY OF DES MOINES, Appellant, v. Maxine Gonzales MOSQUEDA et al., Appellees.
Case Date:May 22, 1963
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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317 F.2d 609 (5th Cir. 1963)

EMPLOYERS MUTUAL CASUALTY COMPANY OF DES MOINES, Appellant,

v.

Maxine Gonzales MOSQUEDA et al., Appellees.

No. 19777.

United States Court of Appeals, Fifth Circuit.

May 22, 1963

Rehearing Denied June 19, 1963.

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[Copyrighted Material Omitted]

Page 611

Nelson Scurlock and Rawlings, Sayers, Scurlock & Eidson, Fort Worth, Tex., for appellant.

Charles L. Stephens, Alfred M. Clyde, Forth Worth, Tex., Clyde & Barnes, Cantey, Hanger, Johnson, Scarborough & Gooch, Fort Worth, Tex., of counsel, for appellees.

Before BROWN and BELL, Circuit Judges, and SIMPSON, District Judge.

JOHN R. BROWN, Circuit Judge.

Two question are presented to us on this appeal from a judgment which holds that a truck driver was an assured under the omnibus clause of an insurance policy issued to his employer as the named assured. The first concerns the admission of certain evidence and the Judge's refusal to give a qualifying instruction after this evidence was received. The second concerns the sufficiency of the evidence to support the verdict and judgment entered thereon. We conclude there are no errors and accordingly affirm.

Plaintiffs, residents of Texas, brought this action in the Texas courts against Employers Mutual, 1 an Iowa corporation, to compel payment of a judgment previously rendered in the State Courts of Texas in favor of Plaintiffs and against an employee of a company which was the named assured under a policy of insurance issued by Employers Mutual. The cause after removal was tried in the United States District Court. 28 U.S.C.A. § 1441. The jury having found for the Plaintiffs, judgment was entered on their verdict, and Employers Mutual has perfected this appeal.

Initially, this suit arose out of a truck-automobile accident in which the husband and father of Plaintiffs was killed. The truck driver (Buchanan) was employed by Albright Van & Storage Company of Wichita Falls, Texas. As part of its business, it hauled telephone poles in and across the State of Texas. On the day in question, Buchanan hauled a load of poles from Wichita Falls to Springtown, Texas. There are two routes from Wichita Falls to Springtown-- one is U.S. Highway 281 passing through Jacksboro, the other is U.S. Highway 287 passing through Henrietta then State Highway 148 from Henrietta to Jacksboro and from there to Springtown. Before departing on his trip, Buchanan obtained permission from the assistant truck dispatcher at Albright to stop on his way through Henrietta to deliver a birthday present to the mother of Buchanan's helper who went along on the trip. After making the stop in Henrietta, Buchanan proceeded to Jacksboro and then to Springtown and unloaded the poles. Buchanan and his helper then decided to go to Azle where they could get a beer. Azle is some 12 miles from Springtown and in the opposite direction from Jacksboro and Wichita Falls but on the highway to Fort Worth, another 13 miles beyond. As they would have to eat before going back to Wichita Falls, they decided, after having a beer in Azle, to go on into Fort Worth to eat the evening meal. This would enable them to return to Wichita Falls by another, and regular, route on U.S. 287, a major, direct highway. Having arrived on the outskirts of Fort Worth, they proceeded toward downtown. It was in this setting, on their way into the city, that the collision occurred which triggered these several suits.

Plaintiffs sued in the State Courts naming as joint defendants, Buchanan and his employer, Albright Van & Storage Company. The jury returned a verdict against both defendants. However, upon motion of Albright, the judge disregarded certain jury findings and entered j.n.o.v. for Albright. The verdict and judgment against Buchanan was appealed to the Texas Court of Civil Appeals where it was affirmed. Mosqueda v. Albright Transfer & Storage Co., Tex.Civ.App., 1958, 320 S.W.2d 867.

Plaintiffs being unable to recover any part of their judgment against

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Buchanan, they...

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