Bertrand v. Mutual Motor Co., 852.

• Decision Date: 17 April 1931
• Docket Number: No. 852.,852.
• Citation: 38 S.W.2d 417
• Parties: BERTRAND et al. v. MUTUAL MOTOR CO.
• Court: Texas Court of Appeals

Page 417

38 S.W.2d 417

BERTRAND et al. v. MUTUAL MOTOR CO.

No. 852.

Court of Civil Appeals of Texas. Eastland.

April 17, 1931.

Rehearing Denied May 15, 1931.

Appeal from District Court, Taylor County; W. R. Chapman, Judge.

Suit by Mrs. Lillian Bertrand and husband against the Mutual Motor Company. From a judgment in favor of defendant, plaintiffs appeal.

Affirmed.

Scarborough, Ely & King, of Abilene, for appellants.

Leachman & Gardere, of Dallas, for appellee.

HICKMAN, C. J.

Mrs. Lillian Bertrand suffered personal injuries as the result of an automobile collision at a street intersection in the city of Abilene. The car which she was driving collided with a car belonging to appellee, Mutual Motor Company, being driven by a prospective purchaser. This suit was instituted to recover damages on account of the injuries sustained. The case was submitted to a jury on special issues, all of which were answered in favor of appellants, and the damages assessed at $4,000. The only ground of liability pleaded was that the prospective purchaser was the agent of appellee for the purpose of demonstrating the car, and that, therefore, the doctrine of respondeat superior applies. After the verdict of the jury was received, the learned trial judge concluded that no liability was established and, notwithstanding the answers were favorable to appellants, rendered judgment for appellee. From this judgment an appeal has been perfected.

A fair statement of the controlling issue of law presented is made by appellants in the opening portion of their argument, as follows: "The question presented by this appeal, and the sole and only question, is whether an automobile dealer is liable for the negligent acts of a prospective purchaser while testing out a car to determine whether he will buy it. * * * Our contention is that an automobile dealer who demonstrates cars is liable for the injuries done by the car while in the course of the demonstration, whether it be in the hands of the prospective purchaser or some other agent. In other words, it is our contention that if a dealer delivers a car to a prospective purchaser to have same demonstrated, that he makes the prospective purchaser his agent for that special purpose."

The record does not present a case where any of the dealer's employees were riding with the prospective purchaser and in control of the demonstration. She was alone and controlling her own movements. Neither does it present a situation where the dealer was negligent in turning over a car to a person known to be a careless or incompetent driver. Negligence on that ground was neither pleaded nor disclosed by the evidence. On the contrary, the evidence discloses that she had had many years experience in driving automobiles of different makes, and there is no suggestion that the dealer had any reason to suspect that she was not a careful and competent driver. The quotation from the appellants' brief above set out correctly states the problem as narrowed down by the record before us, and if, as a matter of law, a prospective purchaser, who is testing a car with a view to becoming the owner thereof, is not the agent of the owner for the special purpose of demonstrating the car, then no case of liability is made against appellee.

We have been referred to no Texas case deciding the exact question here presented, although we think many could be cited deciding it in principle. There are, however, many well-considered opinions from other jurisdictions deciding the exact question. While the reasoning is not the same in all of these opinions, the conclusions reached are in harmony. A prospective purchaser cannot be the...