American Nat. Ins. Co. v. Denke
Decision Date | 17 June 1936 |
Docket Number | No. 2001-7050.,No. 2000-6703.,2000-6703.,2001-7050. |
Citation | 95 S.W.2d 370 |
Parties | AMERICAN NAT. INS. CO. v. DENKE et al. SAME v. SHEPHERD et al. |
Court | Texas Supreme Court |
Two suits by E. J. Denke and another and by H. L. Shepherd and another against the American National Insurance Company. Judgments for plaintiffs in each case were affirmed by the Courts of Civil Appeals [65 S.W.(2d) 522 and 91 S.W. (2d) 439], and defendant brings error.
Reversed and rendered.
Frank S. Anderson, of Galveston, and Williams, Lee, Sears & Kennerly, W. H. Blades, and Sam R. Fisher, all of Houston, for plaintiff in error.
King, Wood & Morrow and H. Earl Cox, all of Houston, for defendants in error.
GERMAN, Commissioner.
These are companion cases. They grew out of the same accident and the controlling facts, so far as the question of liability of plaintiff in error is concerned, are identical. Both cases arose out of an accident in the city of Galveston on January 22, 1932. An automobile operated by one W. W. Saunders and owned by his wife was driven against Gerald Denke and against Jesse Foster Shepherd, causing serious personal injuries to each of them, and these suits followed. They were brought by the proper parties and in the proper manner. Judgments in favor of plaintiffs in each case for large sums of money were rendered in the district court. Both judgments were affirmed by the Courts of Civil Appeals. An opinion in the Denke Case is reported in 65 S.W.(2d) 522, 523, and in the Shepherd Case in 91 S.W.(2d) 439. All questions of negligence have been eliminated from the cases, and we have here for decision the sole question of whether or not at the time of the accident W. W. Saunders was acting in the capacity of a servant or employee of plaintiff in error, American National Insurance Company.
For the purposes of this decision, we adopt the statement of the material facts made by the Court of Civil Appeals in the Denke Case:
We may add, however, that plaintiff in error seriously questions the statement that Saunders had frequently used his wife's automobile "with the knowledge and acquiescence of the appellant"; and may further add that there was nothing in the contract, either actually, or as construed by the parties, which in any way sought to control Saunders in his physical movements while doing his work, or directing that he should or should not travel by automobile, street car, cab, or on foot or otherwise.
The importance of the question decided in these cases has not been minimized. Counsel for all parties have furnished the court with comprehensive and able briefs. In addition to considering the authorities cited, we have given the matter...
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