346 F.2d 197 (5th Cir. 1965), 21768, E. L. Cheeney Co. v. Gates

Docket Nº:21768.
Citation:346 F.2d 197
Party Name:E. L. CHEENEY COMPANY and Edmon Lewis Fregia, Appellants, v. Walter L. GATES, Jr., Appellee.
Case Date:June 10, 1965
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 197

346 F.2d 197 (5th Cir. 1965)

E. L. CHEENEY COMPANY and Edmon Lewis Fregia, Appellants,


Walter L. GATES, Jr., Appellee.

No. 21768.

United States Court of Appeals, Fifth Circuit.

June 10, 1965

Rehearings Denied July 13, 1965.

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[Copyrighted Material Omitted]

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George A. Weller, Beaumont, Tex., J. C. Zbranek, Liberty, Tex., Marcus & Weller, Beaumont, Tex., for appellant, E. L. Cheeney Co.

Gilbert T. Adams, Adams & Browne, Beaumont, Tex., by Roger Ratliff, Colorado City, Tex., for appellee, Walter L. Gates, Jr.

Before HUTCHESON and BROWN, Circuit Judges, and KILKENNY, [*] district judge.

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JOHN R. BROWN, Circuit Judge.

Nothing startling, nor for that matter new, is either in or comes out of this diversity automobile collision damage suit in which we are Erie-Texas bound. As a matter of Federal Court judicial administration, the excursion proves once again, however, the wisdom of using the F.R.Civ.P. 49(a) mechanism of special interrogatories with a general charge for jury submission. Had they been used, there is a good chance that the jury would have washed out some of the asserted errors on receipt of evidence and as to basic questions of liability, the issues would have been sharply posed for definitive action. As it is, everything was wrapped in the enigma of a general verdict, and all must go back for another round.

The Plaintiff Gates, on a general verdict, against the Company 1 and the asserted employee Fregia 2 obtained a judgment for personal injuries sustained in an intersection collision which occurred about 11:30 p.m. on January 25, 1962, when the Company's pickup truck, then being driven by Fregia, turned left to cross the course of the Plaintiff's oncoming car. The occurrence itself is of little moment for if there ever was a jury case authorizing a finding of negligence in the operation of the truck and lack of contributory negligence on the part of the Plaintiff, this is it. The battle was all over the legal accountability of the Company. 3 Recovery against the Company was sought on two independent theories, the first being the run-of-the-mill respondeat superior, and the second the doctrine of negligent entrustment which, with some built-in hurdles of its own, does overcome the scope of employment problem. Constructed as it was, the general verdict was a favorable finding on either one or both of these theories. If a significant error in the charge was made or an instructed verdict should have been granted on either of the two theories, the mystery, being impenetrable compels a reversal. 4

To prevail on the respondeat superior theory, the Plaintiff had to establish that at the time of the accident Fregia was then engaged in the course of his employment acting for and in the interest of the Company, his employer. 5 If-- and the if is a very, very big one-- the Plaintiff established this, it was done solely on the basis of a Texas presumption. For the record is absolutely bare of direct evidence that Fregia was doing anything for or on behalf of the Company except, perhaps, to get the truck back to his home from which it ought never to have been removed for this particular personal journey. To the contrary, the

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evidence was uncontradicted that Fregia had no right to use the truck for his personal interest, and that the Company had a positive rule forbidding it. And as though this were not enough, the evidence was also uncontradicted that Fregia and his wife drove in the Company truck from their home to a beer tavern a mile or so distant where they stayed for an hour and a half, perhaps consuming the usual 'one or two' beers as a part of their mission to collect from the tavern owner delinquent purchase payments he owed to Fregia's wife, the former owner of the tavern.

The Plaintiff does not undertake to minimize these denials. Indeed, some of them work to his great advantage showing, as they do, that Fregia was and had been for a number of years in the direct employment of the Company. This proof showed also that the pickup truck belonged to the Company, and Fregia was authorized to drive it to and from work and to keep it at his home during non-working hours.

This set in motion the principle declared in Broaddus v. Long, 1940, 135 Tex. 353, 138 S.W.2d 1057, 1058. There the Court, for Texas, said, 'it is the law * * * that (the plaintiff) having proved Broaddus' ownership of this cab, that his servant negligently operated it at the time of this collision, and that such negligence was the proximate cause of his injuries, he proved a prima facie case against Broaddus. We think further that, for Broaddus to escape liability under the above facts, he must prove that the servant was not acting within the scope of his employment at the time of such collision.' Besides citing with obvious approval Houston News Co. v. Shavers, Tex.Civ.App., 64 S.W.2d 384, the Court went further and expressly approved the rule stated in American Jurisprudence . 6 Finally, the Court after analyzing the facts concluded that the presumption had not been overcome as a matter of law because 'we do not think that such evidence comes from witnesses whom, under the circumstances of this record, the jury was bound to believe.' 138 S.W.2d 1057, 1059. The Plaintiff here stresses this latter declaration to argue that the 'rebuttal' comes entirely from Fregia and the President of the Company each of whom was an interested party whose testimony the jury was not 'bound to believe.'

But other decisions discussing the nature of this presumption as well as some applying it to specific fact situations demonstrate that for Texas the standard is not the mechanically simple one of making every case a jury issue where the '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 an 'administrative assumption' which 'vanishes' or is 'put to flight' when positive evidence to the contrary is introduced. * * * The presumption is a true presumption, which has been defined as 'a rule of law laid down by the courts which attaches to facts certain procedural consequences'. McCormick & Ray's Texas Law of Evidence, Sec. 32 p. 48. It places on the party against whom it operates the burden of producing evidence. It is not evidence and when met by rebutting proof is not to be weighed by the jury or treated by the jury as evidence in arriving at a verdict. McCormick & Ray's Texas Law of Evidence, pp. 51, 58,

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Sections 34, 37; 20 Amer.Jur. pp. 170, 171, Sec. 166.' 143 S.W.2d at 767, 768. In Houston News Company v. Shavers, supra, many times expressly approved, Judge, later Justice Alexander for the Court of Civil Appeals described this presumption as 'a mere rule of procedure.' And, the Court went on, 'the presumption vanishes when positive evidence to the contrary is introduced.' Judge Alexander then reduced it to terms which all lawyers, certainly those artificers who labor in the courtroom, would understand with pained recollections. 'The effect of the rule is to 'smoke out' the defendant and to compel him to disclose the true facts within his knowledge. When, however, he discloses the true facts within his possession and such evidence is positive to the effect that the servant was not engaged in the master's business at the time of the injury, the presumption is nullified and the burden is then upon the plaintiff to produce other evidence or his cause fails.' 7 64 S.W.2d 384, 386.

Translating the problem into practical terms, the Court in Empire Gas & Fuel Co. v. Muegge, supra, recognized a 'conflict in the decisions as to the degree and character of the proof necessary to rebut or overcome such presumption.' And the Court declared: 'By some it is held that the presumption disappears when met by positive proof or substantial proof or by evidence which the jury has the right to believe or by the uncontradicted testimony of the defendant. Others hold that the presumption is not overcome by the testimony of the defendant alone or by the testimony of interested witnesses or by evidence which the jury has the right to disbelieve. * * *' But regardless of the interested or disinterested character of the 'rebuttal' witnesses, the Court aligns itself with the 'authorities' which are 'in almost complete agreement that the presumption is conclusively overcome by clear, positive and undisputed evidence.' 143 S.W.2d at 768. Where the 'rebuttal' qualitatively meets this standard, a number of Texas cases hold the presumption to have been overcome conclusively by testimony coming wholly from interested parties. Kelly v. Green,...

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