Alfano v. International Harvester Co., 12458.

• Decision Date: 15 October 1938
• Docket Number: No. 12458.,12458.
• Citation: 121 S.W.2d 466
• Parties: ALFANO v. INTERNATIONAL HARVESTER CO. OF AMERICA.
• Court: Texas Court of Appeals

121 S.W.2d 466

ALFANO v. INTERNATIONAL HARVESTER CO. OF AMERICA.

No. 12458.

Court of Civil Appeals of Texas. Dallas.

October 15, 1938.

Rehearing Denied November 12, 1938.

Appeal from District Court, Dallas County; Jno. A. Rawlins, Judge.

Action by Ellen Alfano against the International Harvester Company of America and another to recover damages for personal injuries. From a judgment granting a peremptory instruction in favor of the named defendant, the plaintiff appeals.

Affirmed.

White & Yarborough, of Dallas, for appellant.

Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, for appellee.

YOUNG, Justice.

Ellen Alfano, a young woman, while walking eastwardly along the graveled portion of West Davis Street in Dallas and off the pavement, as she alleges, was struck by a motor truck, driven by the defendant W. P. Burney, traveling in the same direction. The motor vehicle was the property of appellee company and the resulting suit by plaintiff for personal injuries was against said company and Burney; the allegations of liability as to the Harvester Company being that Burney was driving the truck as its agent at the time of the collision, and in the course of his employment. Separate answers of the defendants were filed, the material defense of defendant company being that Mr. Burney had ceased to be an employee on November 25th, prior to the date of collision, which was the evening of Sunday, December 1, 1935, on the above mentioned street; the individual defendant, Burney, alleging contributory negligence of plaintiff in response to the suit against him. When the testimony closed, the trial court granted the peremptory instruction of the defendant Harvester Company; the jury, upon special issues, found against Burney on material facts, with a resulting judgment against the latter for $4,500. This appeal is only to review the action of the lower court as to the above peremptory instruction for appellee company and judgment thereon against plaintiff. No appeal was perfected by the individual defendant, Burney.

As a part of plaintiff's evidence, in chief, the defendant company admitted the truck involved in the collision belonged to it. When plaintiff rested, the Harvester Company produced records and testimony of employees of the Dallas office as witnesses that said W. P. Burney had left the employment of such company on November 25, 1935, or almost a week prior to the accident; that Burney became an employee about August 1st, being furnished with the truck in question, as salesman in its Western Texas territory, using it in the company's business until his services terminated the latter part of November, as stated. The testimony of Burney was corroborative of the above defensive matters as to when his relations with the company ended; testifying that, when he left the service of said appellee company in November, he went to work in Frank Robinson's garage, at Eastland, where the truck was stored; and that his trip to Dallas the following Sunday (December 1st), when the accident occurred, was not known to or authorized by the Harvester Company, but was a personal mission with a view of purchasing the truck. Plaintiff offered in rebuttal, as res gestæ, the testimony of C. L. Erwin, a police officer, to the effect that, within five minutes after the collision, said Burney had stated he was at that time working for the International Harvester Company, Burney on the stand having denied making such statement. This evidence was excluded by the trial court as bearing on the issue of employment of said party with appellee, but was admitted for impeachment purposes only as to defendant Burney.

It will be seen that plaintiff's testimony in the main was presumptive only, being in effect that the truck which struck plaintiff was owned by defendant company and being driven by one into whose custody such company had delivered the vehicle; and, unless rebutted by direct facts, might present a jury question of agency on the part of Burney, and within the scope of a presumed employment for the Harvester Company. However, when the defendants took over the burden of going forward with the evidence, they established by full and direct facts the true relationship of Burney and appellee company at the time of the accident, and the lack of any knowledge or authority on the part of appellee concerning Burney's operation of the truck on this occasion. The office of presumptions or inferences as testimony under the facts here presented are clearly discussed by Judge Bond of this court, in Harper v. Highway Motor Freight Lines, 89 S.W.2d 448, writ dismissed. It is there said [page 450]: "where liability of the defendant for the acts of the person in charge of the truck is based on ownership of the truck, proven or reasonably inferred from other facts, the presumption necessarily...