Broaddus v. Long
| Decision Date | 17 April 1940 |
| Docket Number | No. 7563.,7563. |
| Citation | 138 S.W.2d 1057 |
| Parties | BROADDUS v. LONG. |
| Court | Texas Supreme Court |
E. T. Miller, of Amarillo, and Touchstone, Wight, Gormley, Strasburger & Price, of Dallas, for plaintiff in error.
A. A. Lumpkin, R. E. Underwood, Jr., and James G. Lumpkin, all of Amarillo, for defendant in error.
This suit was filed in the District Court of Potter County, Texas, by Boyce Long against F. Leroy Broaddus to recover damages for personal injuries received by Long as the result of a collision between a motorcycle driven by Long and a taxicab owned by Broaddus, and driven by one Charles Shelly. The case was finally tried in the district court, where it was submitted to a jury on special issues. So far as pertinent to this opinion, the jury found:
1. That, at the time of the collision, Charles Shelly was operating the taxicab which collided with Long's motorcycle, on a mission for and on behalf of Broaddus.
2. That Charles Shelly was negligent in the way he operated such taxicab.
3. That such negligence was the proximate cause of Long's injuries.
4. That the collision was not the result of an unavoidable accident.
5. That Long was not guilty of contributory negligence.
6. That Long's damages amounted to $3,999.15.
Based on the above verdict, the district court entered a judgment for Long, and against Broaddus, for the amount above indicated. This judgment was affirmed by the Court of Civil Appeals. 125 S.W.2d 340. Broaddus brings error.
By proper assignments, Broaddus contends that under the undisputed evidence contained in this record, the trial court committed error in not giving his requested charge to the jury instructing a verdict in his favor; and that the Court of Civil Appeals erred in its ruling that the district court did not err in refusing such instruction. This contention is based on the further contention that, under the undisputed evidence in this record, Shelly was not acting in the course of his employment as a servant or employee of Broaddus at the time of this accident.
On behalf of Long, the evidence contained in this record shows the following facts: That Broaddus at the time of this accident owned and operated a taxicab business in the city of Amarillo; that he employed eleven cabs and twenty-one drivers in the operation of such business; that such business was conducted from a certain premises in the city; that such business was in operation at all hours during the day and night; that a telephone operator and checker was kept on duty at all times at such place of business; that the duties of such operator and checker were to receive calls, designate cabs to fill such calls, and settle each day with the cab drivers, who worked on a percentage basis; that the cab involved in this collision belonged to Broaddus, and was one of those operated by him in his taxicab business; that, at the time of the collision, the cab was being operated by Charles Shelly; that Shelly was one of Broaddus' cab drivers regularly employed as such; that shortly before this collision, Shelly had driven a passenger to a certain point in the city, and on his return had picked up another passenger, and that, at the time of this collision, Shelly was turning to stop at a telephone to call Broaddus' place of business to find out if the person in charge was ready for him to bring the cab in.
To our minds, the Court of Civil Appeals was correct in holding that the above evidence was sufficient, in law, to support a fact finding that, at the time of this collision, Shelly was acting within the scope or course of his employment as a servant or employee of Broaddus. In other words, we think that the above evidence is sufficient, in law, to establish prima facie the fact just mentioned. In this connection, we think it is the law as applied to this case, that Long having proved Broaddus' ownership of this cab, that his servant negligently operated it at the time of this collision, and that such negligence was the proximate cause of his injuries, he proved a prima facie case against Broaddus. We think further that, for Broaddus to escape liability under the above facts, he must prove that the servant was not acting within the scope of his employment at the time of such collision. Studebaker Bros. Co. v. Kitts, Tex.Civ.App., 152 S.W. 464; Mrs. Baird's Bakery v. Davis, Tex.Civ. App., 54 S.W.2d 1031; Lightsey Black & White Cab Corp. v. Littlefield, Tex.Civ. App., 48 S.W.2d 766, writ refused; Houston News Co....
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