Baldridge v. Klein

• Decision Date: 23 December 1932
• Docket Number: No. 1038.,1038.
• Citation: 56 S.W.2d 897
• Parties: BALDRIDGE et al. v. KLEIN et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

56 S.W.2d 897

BALDRIDGE et al. v. KLEIN et ux.^*

No. 1038.

Court of Civil Appeals of Texas. Eastland.

December 23, 1932.

Rehearing Denied February 3, 1933.

Error from District Court, Taylor County; M. S. Long, Judge.

Action by David F. Klein and wife against Thomas B. Baldridge and another. To review a judgment in favor of plaintiffs, defendants bring error.

Affirmed in part, reversed and rendered in part.

Marshall & King, of Graham, Cox & Hayden and Scarborough, Ely & King, all of Abilene, and Touchstone, Wight, Gormley & Price, of Dallas, for plaintiffs in error.

Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for defendants in error.

HICKMAN, C. J.

The appeal is from a judgment in favor of defendants in error David F. Klein and wife, Blanch V. Klein, against plaintiffs in error, Thomas B. Baldridge and Graham Mill & Elevator Company, for damages on account of personal injuries sustained in an automobile accident occurring on a highway in Taylor county, in which a car occupied by defendants in error was overturned and practically demolished, with resulting personal injuries. Judgment was also had for damages to their car. Defendants in error were driving west on the Bankhead Highway at the rate of about thirty-five miles per hour. Baldridge overtook them, traveling in the same direction, and speeded up his car to about forty-five miles per hour in attempting to pass them. He made the mistake of cutting back to the right before he was clear of the overtaken car, and as a result the right rear fender of his car became enmeshed with the front bumper of the overtaken car, resulting in the overturning of the latter, with consequent injuries. Judgment ran against Graham Mill & Elevator Company upon pleadings and a jury finding that Baldridge was its agent. Both defendants below have brought the case here for review by writs of error.

The first proposition presents the question that a peremptory instruction in favor of Graham Mill & Elevator Company should have been given by the trial court. The facts disclose that Baldridge was engaged in the brokerage business at Abilene, in partnership with a man by the name of McClure. The firm sold various products of various companies, including the products of Graham Mill & Elevator Company of Graham, Tex. The brokerage firm employed and discharged its own salesmen. When it sold products in carrying out its brokerage business, its purchaser owed the debt for the purchase price to Baldridge & McClure and not to the company whose products were sold. Neither the Graham Mill & Elevator Company, nor any other company whose products were handled by this brokerage firm, had any right of control whatever over the conduct of its business. On the occasion of the accident Baldridge was returning from Clyde, where he had been to collect for a sum owing his partnership firm on account of products theretofore sold. The products for which the collection was made were the products of his codefendant theretofore shipped to Baldridge & McClure at Abilene, and by them sold and delivered to the dealer at Clyde. There was evidence that the telephone in the place of business of Baldrige & McClure was listed in the directory under the name of Graham Mill & Elevator Company, and that a sign was exhibited at their place of business, which was conducted in a house owned by Baldridge, reading "Graham Mill & Elevator Company."

The foregoing is a summary of the material facts. From them we have concluded that Baldridge's relation to Graham Mill & Elevator Company was that of broker. That relationship may be said to be one of limited agency, but it is not such a relationship as that the doctrine of respondeat superior would apply, rendering the company liable for the negligence of Baldridge on the occasion in question. The nature of the relationship between an employer and the person employed, so far as concerns the question of agency, is determined by whether the former had the right to exercise control over the details of the work. To establish the relationship of principal and agent it is not essential that the employer actually exercise his right of control over the details of the work, but it is essential to that relationship that he had the right to exercise that control. In Re-statement of the Law of Agency by the American Law Institute, as quoted in 2 Tex. Jur., p. 384, § 5, this definition is given: "The relation of agency is the consensual relation existing between two persons by virtue of which one of them is to act for and on behalf of the other, and subject to his control."

This court, in at least two cases [Tarver Steele & Co. v. Pendleton Gin Co., 25 S.W.(2d) 156, and Bertrand v. Mutual Motor Co., 38 S.W.(2d) 417], has quoted this definition with approval and in each instance has held that, in the absence of the right of the employer of control over the employee, the relation of principal and agent does not exist. This rule has long been well established by our decisions. Cunningham v. Ry. Co., 51 Tex. 503, 32 Am. Rep. 632; Cunningham v. Moore, 55 Tex. 373, 40 Am. Rep. 812; King v. Galloway (Tex. Com. App.) 284 S. W. 942; National Cash Register Co. v. Rider (Tex. Com. App.) 24 S.W.(2d) 28.

We sustain the first proposition.

Propositions 2 to 6, inclusive, complain of the trial court's definition of "an agent" and of the admissibility of certain testimony seeking to establish agency. These propositions are rendered immaterial by our holding that the evidence did not raise the issue of agency.

The seventh proposition complains of the definition contained in the charge of "natural and continuous sequence." We are still of the opinion which we expressed in the case of West Texas Transportation Co. v. Hash, 43 S.W.(2d) 152, 158, that it is not necessary to give a definition of this term, but since the court has done so, if that definition was erroneous and proper written objections were timely filed thereto, an error would probably be disclosed. The definition is the same as that which we condemned in the Hash Case, supra, and is as follows: "`Natural and continuous sequence' means an act which ordinarily follows, the result of which may reasonably be anticipated from it."

The definition is subject to some objections, but plaintiffs in error failed to point out any objectionable feature. The only objection to this definition was in this language: "Defendant excepts to the court's definition of `natural and continuous sequence' because the same is erroneous in defining said term as an `act' when in fact it is a succession of events."

Let us suppose that the trial court had agreed with this exception and had so changed his definition as to substitute for the words "an act," the suggested words, "a succession of events." The definition would then have read as follows: "`Natural and continuous sequence' means a succession of events which ordinarily follows, the result of which may reasonably be anticipated from it."

Would such change have cured the error in the definition? We think not. The statute (article 2185, R. S. 1925), requiring that...