Best Steel Bldgs., Inc. v. Hardin, 935

• Decision Date: 24 March 1977
• Docket Number: No. 935,935
• Citation: 553 S.W.2d 122
• Parties: BEST STEEL BUILDINGS, INC., Appellant, v. Rosemary Jeffers HARDIN et al., Appellees.
• Court: Texas Court of Appeals

Page 122

553 S.W.2d 122

BEST STEEL BUILDINGS, INC., Appellant, v. Rosemary Jeffers HARDIN et al., Appellees.

No. 935.

Court of Civil Appeals of Texas, Tyler.

March 24, 1977.

Rehearings Denied June 9 and June 23, 1977.

Jesse R. Pierce, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellant.

Robert H. Roch, Russell L. Cook, Jr., Fisher, Roch & Gallagher, Ronald L. Blackstock, Quinnan H. Hodges, Houston, for appellees.

MOORE, Justice.

This is a wrongful death action and property damage action arising out of an automobile-truck collision. Plaintiffs, Rosemary Jeffers Hardin and Lisa Jean Hardin by next friend, Rosemary Jeffers Hardin, Verna Jane Martin by next friend, Janie Martin Lee, M. C. Bandy, and J. H. Rose Truckline, Inc., brought suit against defendant, Best Steel Buildings, Inc. and Nancy Smith Graham and husband, for damages arising from the death of Willard Hardin and Kenneth Martin and for property damage incurred in the collision. The Transport Insurance Company intervened for subrogation of workmen's compensation benefits paid to the survivors of Willard Hardin and Kenneth Martin. Prior to trial, the cause of action against Nancy Smith Graham and husband was nonsuited by plaintiffs.

Trial was to a jury. In response to the special issues, the jury found that Louis Davis, an employee of Best Steel Buildings, Inc., was guilty of negligence in the operation of his automobile, such negligence having proximately caused the collision. The jury further found that this employee, Louis Davis, was acting within the course and scope of his employment for Best Steel Buildings, Inc. on the occasion in question. The jury awarded damages to the plaintiffs in the following amounts: Lisa Jean Hardin $50,000.00; Rosemary Jeffers Hardin $225,000.00; Verna Jane Martin $50,000.00; Marie Bandy Weisser $22,400.00; J. H. Rose Truckline, Inc. $4,554.56. After defendant Best Steel Buildings' motion for judgment n. o. v. was denied, the trial court entered judgment on the verdict. Defendant, Best Steel Buildings, Inc., timely filed its motion for new trial and after the same was overruled, perfected this appeal. For convenience, Best Steel Buildings, Inc. will be referred to as "appellant." The appellees will be referred to individually by name and collectively as "appellees."

We affirm in part and conditionally affirm in part.

The collision made the basis of this suit occurred at approximately 9:00 a. m. on Monday, February 27, 1967, on a bridge on Highway 290 near Manor, Texas. At the point where the accident occurred, the highway runs generally east and west across the bridge. The bridge was 420 feet long and was composed of two lanes each of which was twelve feet in width.

Three vehicles were involved in the occurrence, two automobiles and a tractor-trailer truck. The truck was owned by J. H. Rose Truckline, Inc., and was proceeding east on Highway 290. It was being driven by Kenneth Martin and Willard Hardin was a passenger in the truck. The two automobiles were headed west. The lead automobile was a Pontiac sedan driven by Nancy Smith Graham. Following the Pontiac was a Simca driven by Louis Davis. His son, James Davis, and his son's wife were passengers in the Simca. The collision was between the truck driven by Willard Hardin and the Simca driven by Louis Davis. The point of impact was five feet south of the center line in the eastbound lane in the truck's lane of travel. Louis Davis and Mrs. James Davis were apparently killed upon impact and Kenneth Martin and Willard Hardin were burned to death in the tractor which left the roadway and caught fire after impact. James Davis was the sole survivor from the two vehicles. The evidence shows that the Simca struck the rear of the Pontiac which had slowed to avoid hitting a dog. After striking the Pontiac the Simca, driven by Louis Davis, skidded across the center line rear-end first, causing the impact between the rear of the Simca and the left front of the truck.

At the time of the collision, Louis Davis and James Davis were returning to Austin, their place of employment, with appellant, Best Steel Products, Inc., from Houston where they had spent the night. Appellant is in the business of constructing metal buildings and at the time of the collision was building such a structure on the University of Texas campus in Austin. Louis and James Davis lived near Houston, Texas, but while engaged in the construction of the building they stayed in a motel in Austin along with James Davis' wife. Kenneth Martin and Willard Hardin were engaged in transporting freight for their employer, J. H. Rose Truckline, Inc., at the time of the collision. Since appellant does not challenge the jury's verdict finding that the negligence of Louis Davis, deceased, proximately caused the collision, it will not be necessary to delineate the facts showing his responsibility for the collision.

In response to the first and second special issues, the jury found: (1) that Louis Davis was within the course and scope of his employment with Best Steel Buildings, Inc. at the time of the collision; and (2) that at the time of the collision Louis Davis was operating his vehicle in furtherance of a mission for the benefit of Best Steel Buildings, Inc. and subject to the right of control by Best Steel Buildings, Inc. as to the details of the mission.

Under the first point of error appellant seeks a reversal on the ground that the court erred in admitting certain testimony. Under points two through five appellant seeks reversal on the grounds that the evidence is legally and factually insufficient to support the jury's findings that Louis Davis was in the course and scope of his employment with appellant, Best Steel Buildings, Inc. at the time of the collision. We will discuss the "no evidence" and "insufficient evidence" points first.

Under the second and fourth points, appellant contends that the trial court erred in overruling its motion for judgment N.O.V. because there is no evidence to support Special Issues Nos. 1 and 2, finding that Louis Davis was acting in the course and scope of his employment with Best Steel Buildings, Inc. In passing on these points of error, we must consider only that evidence which is favorable to the appellees and must draw from the facts proved only those reasonable inferences which tend to support the jury's findings and the judgment based thereon. Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex.1974); Transport Ins. Co. v. Mabra, 487 S.W.2d 704 (Tex.1972); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Jecker v. Western Alliance Ins. Co., 369 S.W.2d 776 (Tex.1963); Dictaphone Corp. v. Torrealba, 520 S.W.2d 869 (Tex.Civ.App. Houston (14th Dist.) 1975, writ ref'd n.r.e.).

The record shows that several weeks prior to February 27, 1967, the date of the accident, the appellant had been erecting a steel building in Austin, Texas. Louis Davis and James Davis, as well as other members of the crew of the appellant, lived in and around Houston, Texas. After working in Austin for several weeks, they returned to Houston for a one week period because certain materials had not reached the job site. During that week in Houston they were not paid any wages.

The crew had returned to the job site in Austin about a week prior to February 27, 1967. The crew consisted of Bob Drouet, Kenneth Wright, John Pirsch, Jack Porter, James Davis and Louis Davis. Bob Drouet, age nineteen, was the foreman of the job. August Drouet, the father of Bob Drouet, was an officer and stockholder of appellant company and was supervisor of the crew. August Drouet was not present at the job site, but was in Houston.

In addition to regular pay, appellant's building crew was paid five dollars a day as expense money which was added to the weekly pay checks. When the crew returned the week before the accident, Louis Davis had drawn some expense money in advance but James Davis testified he had no expense money with which to pay his motel bill in Austin. It is undisputed that the crew worked until the early afternoon on Sunday, the day before the accident, at which time the job was shut down. It is likewise undisputed that sometime later in the afternoon James Davis, his wife, and Louis Davis left for Houston in Louis's Simca automobile. The reason for the trip to Houston and its purpose, as well as other surrounding circumstances, can best be described by a summary of the testimony given by each of six witnesses.

James Davis testified that on Sunday afternoon, February 26, 1967, the building crew had a shortage of certain building materials, including self-tapping screws which were essential to the construction of the building. He testified that he walked up during a conversation between Louis Davis and Bob Drouet, the foreman, and heard Drouet say that he would appreciate it if Louis and he would go to Houston and pick up some items. An inventory was taken to determine what materials they were to get. It was determined that a box of blue and white self-tapping screws, a roll of chicken wire and some expense money were needed. In addition, Louis was to check about procuring some window frames. The list of items was written on a piece of cardboard box which Louis Davis carried with him to Houston. Before leaving Austin, Bob Drouet suggested that all three of them go to a filling station so that he could call his father, August Drouet, in Houston. After being unable to reach his father, Bob Drouet told them to go to Houston and he would keep trying to call his father and advise him they were coming for the supplies. James testified that but for the instructions given by Bob Drouet they would have stayed in Austin. Before leaving for Houston, they went back to the motel and picked up his wife and then embarked upon Highway 290 which was the most direct route to Houston. When they went through Waller, Texas, which is about 50 miles from Houston, Louis Davis stopped by his home and changed...